TMI Blog2022 (5) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... e of SANGEETABEN MAHENDRABHAI VERSUS STATE OF GUJARAT ANR. [ 2012 (4) TMI 728 - SUPREME COURT ] where the Apex Court considers the very issue of whether a petition under Section 420 of the IPC would be maintainable, during the pendency or even after conviction under Section 138 of the Act. The Apex Court holds that the two operate in different fields - In a case under the Act what is required to be noticed is, whether it is for a legally enforceable debt and a fine is imposed. In an offence involved on the same instrument under Sections 406 or 420 IPC sentence of seven years can be imposed and the element mens rea is what is required to be seen in a case for offence of cheating under Section 420 of the IPC inter alia. The Apex Court hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any for short). The Company was engaged in the business of import. It appears that the Directors of the Company approached the 2nd respondent/complainant seeking financial assistance to meet immediate financial needs that arose in its business. A transaction between the two take place and the complainant claims to have assisted the Company with finance of Rs.30,00,000/- initially and Rs.5,00,000/- later. The financial assistance was rendered between July 2015 and September, 2015 against which, the Company had issued five cheques totally to the aforesaid amount. The cheques when presented for realization were returned with the endorsement account closed . The legal requirements necessary for initiation of proceedings invoking the Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that the private complaint so registered for the offence punishable under Section 420 IPC runs counter to the judgment of the Apex Court in the case of PRIYANKA SRIVASTAVA V. STATE OF U.P., reported in (2015) 6 SCC 287 as there is no indication of following the mandate enunciated in PRIYANKA SRIVASTAVA and he would seek that the petition be allowed and proceedings be quashed. 6. On the other hand, the learned counsel appearing for the respondent No.2 would vehemently refute the submissions and contends that invoking Section 138 of the Act will not preclude the complainant from registering a crime for offence punishable either under Section 406 or 420 of the IPC as it does amount to cheating and inducement on the part of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. 38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contrary to the judgment in the case of PRIYANKA SRIVASTAVA (supra). The Apex Court has in the aforesaid judgment held that prior to registration of a private complaint it should be demonstrated in the complaint that the complainant has made efforts to register a complaint before the jurisdictional police and that having not entertained the only way to proceed in the matter is by registration of a complaint under Section 200 of the Cr.P.C. The other mandate of the judgment is that if the investigation under Section 156(3) of the Cr.P.C. is sought for in a private complaint, it shall be accompanied by an affidavit of the complainant. A perusal at the impugned complaint would clearly indicate that the complaint is in compliance with the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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