TMI Blog2020 (2) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... of offence under Section 138 of N.I. Act cannot preclude the complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. But in the case at hand when opposite party no.2-complainant lodged an FIR in the concerned police station, the same was not registered, therefore, there was no other way open to opposite party no.2-complainant than to approach the Magistrate by filing complaint case, who, in turn directed the police to register the complaint as FIR under Section 156(3) of Cr.P.C. and conduct investigation - impugned order is correct and is upheld. Petition dismissed. - CRLMP NO. 829 of 2017 - - - Dated:- 11-2-2020 - THE HONOURABLE DR. JUSTICE B. R. SARANGI For Petitioner : M/s. S. Pattanaik, S, Mohanty, B. Moharana and A. Barik, Advocates For Opp. Parties : Mr. G.N. Rout, Addl. Standing Counsel M/s. P.K. Mohapatra, S. Mohanty and A. Mohapatra, Advocates ORDER Dr. B. R. Sarangi, J. The petitioner, being acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said cheque amount of ₹ 8,00,000/- within 15 days from the date of its receipt. But even after receipt of said notice on 07.11.2016, since petitioner-accused no.1 did not take any steps, it was evident that petitioner-accused no.1 had a clear intention to deceive and cheat opposite party no.2- complainant by misappropriating its fund. Petitioner accused no.1 had dishonest intention, right from the beginning, i.e., from the time of approach for supply of heavy earth moving equipment till issue of cheque in favour of opposite party no.2-complainant, to cheat and cause wrongful loss to opposite party no.2-complainant and wrongful gain for themselves and with such intention they had done the above act. In other words, petitioner5 accused no.1, in connivance with other accused persons, had intentionally issued the said cheque to deceive and cheat opposite party no.2-complainant. 2.2 In view of commission of such fraudulent act by accused persons, and after bouncing of cheque in question, opposite party no.2-complainant lodged FIR at Angul Police Station, which straightaway refused to accept the same and directed opposite party no.2-complainant to approach the Court. As a conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been insufficiency of funds. As the cheque in question was presented on a subsequent date and due to insufficiency of funds it was returned, it cannot be construed that petitioner-accused no.1 had tried to deceive opposite party no.2-complainant so as to attract the provisions of Sections 417 and 420 of IPC. It is thus contended that the transaction, being purely civil in nature, the jurisdiction of the criminal Court could not have been invoked and more so, the basic requirements of Sections 417 and 420 of IPC are absent and as such, the proceeding is a malicious one and there is bleak chance of ultimate conviction and thereby, before taking cognizance, the Court should ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. Therefore, he seeks for interference of this Court by filing the present application. To substantiate his contention, he has relied upon the judgment of this Court in Radharaman Sahu v. Trilochan Nanda, 70 (1990) CLT 788, as well as of the apex Court in Inder Mohan Goswami v. State of Uttaranchal, AIR 2008 SC 251. 4. Mr. P.K. Mohapatra, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. Thereby, the contention raised by learned counsel for the petitioner-accused no.1 cannot have any justification and accordingly prays for dismissal of the present writ petition. It is further contended that if the petitioner-accused no.1 wants to quash the proceeding, instead of invoking jurisdiction under Articles 226 and 227 of the Constitution of India, he should have filed application under Section 482 of the Cr.P.C. When adequate remedies are provided under Section 482 Cr.P.C., instead of availing the same, the petitioner-accused no.1 should not have taken recourse to the present proceeding which cannot sustain in the eye of law. 5. This Court heard Mr. S. Pattanaik, learned counsel for the petitioner-accused no.1 and Mr. P.K. Mohapatra, learned counsel for opposite party no.2- complainant and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of the pleadings available on record and in view of the contention raised by Mr. S. Pattanaik, learned counsel for the petitioner-accused no.1 that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n perusal of the aforementioned provisions, it would be evident that under Section 202 Cr.P.C., any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, or either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 7. In view of such provision, the Magistrate may either he himself inquire into the case or direct an investigation to be made by the police authority or by such other person as he thinks fit. If the learned Magistrate has exercised power directing the police to make an investigation under Section 156(3) Cr.P.C., it cannot be said that before issuance of such direction an enquiry has to be conducted under Section 202 Cr.P.C. by the Magistrate himself only. The provision contained under Section 202 Cr.P.C. is ample clear that the Magistrate can postpone issue of process, if he thinks that enquiry ought to have been done prior to issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was closed even prior to entering into the Agreement itself. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section 138 of the N.I. Act by itself is no ground to quash the proceedings in the complaints filed by the appellant herein. When cheating and criminal conspiracy are alleged against the accused, for advancing a huge sum of ₹ 9 crores, it is a matter which is to be tried, but at the same time the High Court has entered into the disputed area, at the stage of considering the petitions filed under Section 482, Cr.P.C. It is fairly well settled that power under Section 482 Cr.P.C. is to be exercised sparingly when the case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process. Whether any Schedules were appended to the agreement or not, a finding is required to be recorded after full fledged trial. Further, as the contract is for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Goswami and Anr. vs. State of Uttaranchal and Ors. this Court has reiterated the scope of power of the High Court under Section 482 Cr.P.C. Having regard to the facts of the case, we are of the view that the said judgments relied on by the learned counsel would not support the case of the respondents. It is also to be noticed that in the complaint filed in P.C.R.No.14420 of 2015, investigation has been completed and chargesheet was also filed on 22nd December 2015. By so discussing, the apex Court held that the High Court has committed an error in allowing the petitions filed under Section 482 Cr.P.C. by the respondents-accused. Thereby, allowed the criminal appeals and set aside the impugned common order dated 28.04.2017 passed by the High Court of Karnataka at Bengaluru. Applying the same analogy to the present context, this is not proper stage where the proceeding so initiated has to be quashed either in exercise of power under Section 226 of the Constitution of India or even under Section 482 Cr.P.C. Rather, the Magistrate is well justified in directing the police authority to register the complaint petition as FIR under Section 156(3) Cr.P.C. and cause investigation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In view of the above analysis and applying the rulings of the apex Court, referred to above, to the present context, it is made clear that an accusation of commission of offence under Section 138 of N.I. Act cannot preclude the complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. But in the case at hand when opposite party no.2-complainant lodged an FIR in the concerned police station, the same was not registered, therefore, there was no other way open to opposite party no.2-complainant than to approach the Magistrate by filing complaint case, who, in turn directed the police to register the complaint as FIR under Section 156(3) of Cr.P.C. and conduct investigation. In view of such position, no illegality or irregularity has been committed by the learned S.D.J.M., Angul by passing the order impugned. 12. Much reliance has been placed by learned counsel for the petitioner on the judgment of this Court in Radharaman Sahu (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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