S.C.Kakar vs State of U.P.& Ors.

J. K. Mathur, J.

This petition under Section 482, Cr. P.C. seeks quashing of the proceedings pending in the Court of Xllth Addl. Chief Judicial Magistrate, Lucknow consequent to the chargesheet filed on 1121994.

The First Information Report was lodged by the opposite party No. 5 against the petitioner on 21993 at Police Station Hussain Ganj, Lucknow. The petitioner challenged that Report in Writ Petition No. 5547 (M/B) of 1993 and an interim order was passed on 9121993 by which the arrest of the petitioner was stayed. After conclusion of the investigation, a chargesheet appears to have been filed in the Court of Xllth Addl. Chief Judicial Magistrate, Lucknow. The proceedings consequent to the said chargesheet have been challenged by this petition.

Opposite Party No. 5 appeared in this Court through Counsel on 1631994 and was granted two week''s time for filing counteraffidavit, on 1241994 the case was listed again, being the date fixed on 1631994. The opposite party No. 4 did not appear. No counteraffidavit has been filed.

I have heard learned Counsel for the petitioner.

The main contention raised on behalf of the petitioner firstly was that in the case where a cheque has been dishonoured, the appropriate remedy lays in the prosecution for the offence under Section 138 of the Negotiable Instruments Act and not a prosecution under Section 420, I.P.C. It was also urged that in any view of the matter allegation, as contained in the First Information Report, did not make out any offence under Section 420, I.P.C.

The first contention raised on behalf of the petitioner is not tenable. The offence under Section 138, rests on the issuance of a cheque for payment of which there was no money available in the Account and the cheque was dishonoured while the requirement of an offence under Section 420, I.P.C. is entirely different. Under the provisions of Section 420, I.P.C. a person may be punished in case he dishonestly induces a person to deliver property to any person, or to make, alter or destroy any valuable security or part of it or any document which is capable of being converted into a valuable security.

While in offence under Section 138 of the Negotiable Instruments Act, there may not be any guilty intention to cheat at the time of issuance of a cheque, the offence under Section 420, I.P.C. can be committed only if there is an intention to cheat at the time when a person receives any property and issues a cheque knowing that it would be dishonoured. These two offences are, therefore, essentially different and the petitioner cannot claim that because the Act alleged may be an offence under Section 138 of the Negotiable Instruments Act, he may not be prosecuted for the offence under Section 420, I.P.C.

Considering the second contention, raised on behalf of the petitioner, a perusal of the First Information Report goes to show that the petitioner gave a cheque for Rs. 1895.70 on 781993 which was a part of the salary of the petitioner for the month of July, having paid the remaining amount of Rs. 500/ in cash. This cheque was returned with a remark that there were insufficient funds. On being intimated, the petitioner again asked the informant to deposit the cheque in the bank. He again sent it to the bank which returned the cheque again on 3081993 saying that three was not money in the account.

It can be assumed that by issuing cheque, the opposite party No. 5 induced the petitioner to permit the opposite party No. 5 to retain the part of salary the amount of which was mentioned in the cheque and that constituted one component of the offence of cheating as defined in Section 415, I.P.C. but it had additionally to be shown that it was done by deceiving the petitioner and fraudulently or dishonsetly.

Unless the petitioner was alleged to have delivered the cheque knowing that it would be dishonoured and with the intention to wrongful gain or to cause wrongful loss, this Act cannot amount to cheating and, therefore, did not amount to an offence under Section 420, I.P.C. There is no allegation in the First Information Report that the cheque had been issued with the intention which was dishonest or fraudulent. In absence of this allegation even if the entire set of facts alleged are proved, that would not constitute an offence under Section 420, I.P.C. It would always be open''to the petitioner to say that he had issued the cheque with the intention to wrongful gain if he is not proved to have known that the funds were not available to satisfy the cheque and that the intention of wrongfully keeping the opposite party No. 5 from getting money and there by causing loss to him.

In these circumstances, the allegations as contained in the First Information Report, do not constitute the offence of cheating and not proceedings can be continued against the petitioner for having committed of this offence.

The statement of the informant, recorded during the investigation, as contained in Annexure No. 7, also does not attribute any dishonest intention to the petitioner. Merely the informatnt''s stating that by so doing, the petitioner had indulged forgery and fraud do not fulfill the requirements of guilty intention requisite to constitute the offence under Section 420,I.P.C.

The petition is, therefore, allowed. The proceedings pending in the Court of XII Addl. Chief Judicial Magistrate, Lucknow in Case Crime No. 655 of 1993, under Section 420, I.P.C. at P.S. Hussain Ganj, Distt. Lucknow are hereby quashed.