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TMI Blog2022 (2) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... Metropolitan Magistrate, Hyderabad which was referred to the police and the police registered a case in Crime No. 313 of 2012 for the offences under Sections 406, 420 and 506 IPC against the petitioner. In the private complaint the 1st respondent contended that he was dealing in manufacturing and retail business of edible oil under the name and style of Umbrella/Gold/Rich Gold brands. The petitioner, who was Proprietor of M/s. Vijay Laxmi Traders approached the 1st respondent and had shown interest to start business with him. The 1st respondent started supplying oil to the petitioner and made it clear that only on advance payment, he would supply the oil. The petitioner agreed that he would issue cheques as and when he received the oil. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner evaded payment and started abusing the collection boy in filthy language and tried to man-handle him on 25.05.2012 and threatened that if he visited the shop again, he would be killed. Subsequently, the petitioner kept his mobile in switch off mode and not made himself available in the shop. The neighbours of the shop of the petitioner informed the collection boy that the petitioner was not coming to the shop and was not opening the shop. The petitioner with a pre-plan and an ulterior motive and malafide intention caused wrongful loss and duped the 1st respondent to a tune of Rs. 8,95,463/- and threatened his collection boy with dire consequences. The police, after investigation, filed charge sheet against the accused for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the police would not entertain his complaint as he had to file a suit for recovery of amount or had to initiate proceedings under Section 138 of the NI Act. The crux of the allegation in the complaint was that the 1st respondent supplied edible oil to the petitioner and the cheques issued by the petitioner were bounced for insufficient funds. The said allegations would not attract the offence either under Section 406 or 420 IPC. The offence under Section 406 IPC would not be attracted as the same was a sale transaction. The offence of cheating would not attract on the failure of the petitioner to fulfil the promise. It must be shown that the petitioner had dishonest intention at the time of making promise. The dispute was with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and prayed to dismiss the petition. 6. Perused the record. The charge sheet would disclose that the 1st respondent supplied oil to the petitioner under invoice Nos. 9, 12, 21, 22, 41 and 45 amounting to Rs. 8,95,463/- and the same was received and acknowledged by the petitioner on 06.04.2012, 07.04.2012, 10.04.2012 and 19.04.2012 respectively and issued cheque No. 203919 dated 23.04.2012 drawn on A.P. Mahesh Cooperative Urban Bank Ltd., Kachiguda for a sum of Rs. 3,04,107/-. The said cheque was presented on 24.04.2012 and was dishonoured by the bank for the reason 'insufficient funds'. The petitioner issued one more cheque bearing No. 203921 dated 03.05.2012 for a sum of Rs. 8,95,463/- and the same was presented on 03.05.2012 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, IPC. Therefore, the two offences covered by Section 420 IPC and 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300 Cr.P.C. is not a bar for separate prosecutions for the offences punishable under Section 420 IPC and 138 of the Negotiable Instruments Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould disclose that the 1st respondent had also initiated prosecution against the petitioner-accused under Section 138 of the NI Act apart from filing the private complaint for the alleged offences under Sections 406, 420 and 506 IPC and the facts prima facie would disclose that the petitioner-accused had an intention to deceive since inception of the transaction as he had received goods but failed to pay the amounts and went on issuing cheques without retaining sufficient amount in his account, which shows that he had an intention to cheat the 1st respondent since inception. The businesses are conducted on trust but the petitioner failed to maintain the trust and committed breach without payment of money after receiving the goods. He also c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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