9911796707
TMI Blog2012 (8) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.15,00,000/- . In pursuance thereof, Rs.10,00,000/- was paid and later on Rs.5,00,000/- was also paid against consideration of the sale amount which the parties agreed to. After some time, the informant approached the petitioner accused-persons but they neither executed the sale-deed with regard to the agreed land nor returned the money. After persuasion, four cheques were handed over to the informant but later on the Bank had returned all the cheques on the ground of there being insufficient fund in the account. 4. On 2nd January 2011 at about 6:00 P.M. Pravin Kumar, petitioner along with three persons came there on motorcycle and threatened for dire consequences, if the informant will go to take legal action. The informant lodged FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by any agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able but later on having felt the necessity this was brought in the statute by way of amendment. On perusal of Section 142 of the N.I. Act it is clear that it starts with non-obstante clause which says that notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing made by the payee or as the case may be, the holder in due course of the Cheque. So it itself shows that Section 142 has overriding effect on the general law i.e. Code of Criminal Procedure. It is well settled principle of law that when a statute provides particular mode for the act to be done then that act can only be done through that mode alone provided unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Delhi) (2012) (2) PLJRE 229 (Mosmat Swaran vs. State of Bihar) and 2009 (2) PLJR 265 (Khichri Ram v. State of Bihar). 11. In view of the aforesaid position of law this Court holds that the court below has wrongly taken cognizance u/s 138 of N.I.Act and the mode prescribed for filing the case has not been followed by way of fling complaint and lodging of FIR is not prescribed in law and to that extent this petition is allowed. But with regard to the cognizance u/s 406 and 420 IPC is concerned, this Court does not find any substance, while coming to a right conclusion, the court will have to examine evidence led during trial and the attending circumstance to find out the necessary ingredients constituting offence u/s 406 & 420 IPC. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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