TMI Blog2022 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, petitioner will have to explain that tampering of cheque if any, was not made with any oblique motive. The mens rea behind issuing such cheque will have to be determined based on the material to be collected during the course of trial - it is for the accused to explain as to how the cheque in question which pertained to his account bearing his incomplete signature reached in the possession of the complainant. Fair trial includes fair and proper opportunities allowed by law to prove innocence of the petitioner. As the materials available so far discloses prima facie offence against the present petitioner, it would not be proper to quash the proceeding at its threshold exercising power under Section 482 of the Code. Application dismissed. - C.R.R. 3196 of 2019 - - - Dated:- 6-7-2022 - HON BLE JUSTICE AJOY KUMAR MUKHERJEE For the Petitioner : Mr. Ranadeb Sengupta Mr. Sachit Talukdar For the State : Mr. Swapan Banerjee Ms. Purnima Ghosh Ajoy Kumar Mukherjee, J. 1. The present revisional application has been directed for quashing the impugned proceeding being G.R. Case No.448 of 2019 arising out of Jorasanko Police Station Case No.89 of 2019 dated Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egotiable Instruments Act, the opposite party no.2 on April 13, 2019 had lodged a complaint against the petitioner alleging that the petitioner has cheated and misappropriated a sum of Rs.30 lakh obtained as a loan from the opposite party no.2. 6. In the FIR being Jorasanko Police Station Case No.89 of 2019 dated April 15, 2019 under Sections 420/406 of the Indian Penal Code, the opposite party no.2 alleged that the petitioner had requested him for accommodating a loan of Rs.30 lakh and the opposite party no.2 accordingly issued the loan in favour of petitioner due to cordial relationship and in order to repay the loan, the petitioner had issued a cheque being no.791823 dated February 1, 2018 to the tune of Rs.30 lakh. 7. It is further alleged that after being receipt of the loan, petitioner gradually started to avoid phone calls of the opposite party no.2 and also stopped personal visit. Opposite party no.2, sensing something wrong, visited petitioner personally and requested him to make repayment and accordingly, the opposite party no.2 had also asked petitioner to issue a fresh cheque as an earlier one was about to expire. Accordingly, the petitioner issued another cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the petitioner in the alleged offence and the same has been done solely for the purpose of settling the dispute. 12. In this context, Mr. Sengupta relied upon the case laws reported in 2006(3) CHN 784 in the case of Tapan Kumar Ghosh and Ors. Vs. State of West Bengal Anr. and in the case of Sripati Singh (since deceased) through his son Gourav Singh Vs. State of Jharkhand Anr. reported in (2021) SCC OnLine SC 1002. 13. Mr. Madhusudan Sur, learned counsel for the State submits that on the basis of complaint lodged by opposite party no.2, investigation started and the proceeding should not be quashed at its threshold simply because a proceeding under Section 138 of the Negotiable Instruments Act is pending against the petitioner. 14. Considered rival submissions. It is now well-settled that in case of offence relating to dishonour of cheque, there is no bar to proceed simultaneously under Section 138 of the Negotiable Instruments Act as well as under Section 420 of the Indian Penal Code. 15. In Sangeetaben Mahendrabhai Patel Vs. State of Gujarat another reported in (2012) 7 SCC 621 Apex Court was pleased to observe as follow: 27. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement that there was all along good relationship and for which there cannot be any mala fide intention from the very beginning in taking loan or issuing cheque, where signature got differed. 17. Admittedly in the present case petitioner took loan of Rs. 30,00,000/- from opposite party no.2/ complainant. Petitioner also not denied specifically that he had given the impugned cheque to opposite party no. 2 towards repayment of debt. Documents transpire that impugned cheque got dishonoured on the ground Drawer s signature differs . 18. In this context, it is to be mentioned that the drawer of the cheque will have to take abundant precaution while issuing the cheque, so that the cheque should be honoured and contracted obligations are fulfilled. If the drawer intentionally tampers with the cheque, the cheque with difference in signature, will be definitely returned. In the present case even after service of statutory notice, the amount involved in the cheque are not paid by the petitioner. In such circumstances, petitioner will have to explain that tampering of cheque if any, was not made with any oblique motive. The mens rea behind issuing such cheque will have to be determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an u ..... 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