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2020 (8) TMI 286 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - Power to pass revisional orders - Section 420 of IPC - HELD THAT:- In the instant case it is admitted fact that complainant respondent filed criminal complaint under Section 200 & 202 to initiate the proceedings against the petitioner accused under Section 138 read with Section 142 of NI Act. Learned trial court took cognizance under Section 138 of Negotiable Instrument Act against the petitioner accused. Thereafter petitioner accused appeared before the trial court. He adduced his evidence. The statement of accused was recorded. Petitioner-accused adduced defence witness - There is no evidence on record to give a conclusion that any document has been forged or fabricated. Thereafter, respondentcomplainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondent-complainant and it was held that petitioner-accused cheated the complainant-respondent by giving a cheque from another person i.e. Santosh Malviya and Santosh Malviya also gave his cancelled cheque to the present petitioneraccused to cheat the respondent- complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B & 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable - if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. It is clear from the record that complainant respondent-complainant did not allege any fact against Santosh Malviya in his complaint under Section 138 of NI Act and during his evidence before trial court any witness did not allege any fact against Santosh Malviya, so it is not proper to implead Santosh Malviya as an accused under Section 319 of Cr.P.C. If Santosh Malviya is added as an additional accused there would be denovo trial. It is admitted fact that his case is fixed for final arguments since 2014, so in these circumstances when the complainant-respondent did not allege any act of cheating in his complaint and his evidence so it would not be appropriate to start denovo trial. The impugned order dated 11.09.2014 passed by learned 3rd Additional Session Judge, Raisen is allowed, whereby learned Sessions Judge allowed the revision presented by respondent-complainant and directed to take cognizance under Section 420 of IPC against the petitioner-accused according to law and also to take cognizance under Section 120-B read with Section 420 of IPC against one Santosh Malviya is hereby set-aside - criminal revision allowed.
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