Cognizance Under N.I. Act Dismissed for Procedural Issues; Charges u/ss 406 & 420 IPC to Proceed to Trial. The HC partially allowed the petition, ruling that cognizance under Section 138 of the N.I. Act was improper due to procedural non-compliance, thus ...
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Cognizance Under N.I. Act Dismissed for Procedural Issues; Charges u/ss 406 & 420 IPC to Proceed to Trial.
The HC partially allowed the petition, ruling that cognizance under Section 138 of the N.I. Act was improper due to procedural non-compliance, thus dismissing it. However, the court upheld the lower court's decision to take cognizance under Sections 406 and 420 IPC, allowing these charges to proceed to trial for further examination.
Issues Involved: Challenge to order u/s 420 and 406 IPC and 138 of N.I. Act by Judicial Magistrate, Patna City.
Issue 1: Cognizance u/s 138 of N.I. Act
The petitioner challenged the order taking cognizance u/s 138 of N.I. Act, arguing that filing a police case is barred under Section 142, which mandates complaints for such cases. The court noted the special provisions of Sections 138 and 142 of the N.I. Act, emphasizing that cognizance can only be taken upon a written complaint by the payee or holder in due course of the cheque. Referring to legal precedents, the court highlighted the principle that statutory powers must be exercised as prescribed, prohibiting alternative modes. The court concluded that cognizance u/s 138 was improper as the correct procedure was not followed, allowing the petition on this ground.
Issue 2: Cognizance u/s 406 and 420 IPC
Regarding the charges u/s 406 and 420 IPC, the petitioner contended that the FIR did not establish these offenses. The court acknowledged that determining these offenses required examining trial evidence and circumstances. It found no error in the lower court's decision to take cognizance under IPC sections 406 and 420, indicating that further evaluation during trial was necessary to ascertain the elements of these offenses. Consequently, the court allowed the petition in part, disallowing cognizance u/s 138 of N.I. Act but permitting proceedings u/s 406 and 420 IPC to continue.
Conclusion:
The court held that while cognizance u/s 138 of N.I. Act was incorrect due to procedural non-compliance, the charges u/s 406 and 420 IPC were deemed valid pending trial evidence examination. The petition was partly allowed, directing the lower court to proceed with the IPC offenses while dismissing the N.I. Act charge cognizance.
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