REPORTABLE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.1141 of 2024 Virendra Pundir ………Applicant Versus State of Uttarakhand & another ………Respondents Mr. Tilak Ram, Advocate holding brief of Mr. Shailendra Nauriyal, learned counsel for the applicant. Mr. K.S. Bora, learned Deputy Advocate General for the State. Ms. Shazia Parveen, learned counsel holding brief of Mr. Parikshit Saini, learned counsel for respondent no.2. Hon'ble Pankaj Purohit, J. (Oral) By means of this C482 applications, the applicant has prayed for quashing/ setting aside of summoning order dated 02.01.2021 in Complaint Case No.6162 of 2019, Bhagwati Kandpal vs. Virendra Singh Pundir, under Section 138 of the Negotiable Instruments Act, pending in the court of 5th ACJM, Dehradun along with entire proceedings of the aforesaid case. 2. The facts in brief are that a complaint was filed by respondent no.2 stating therein that the applicant got executed an agreement to sale of certain property and in lieu of that was paid Rs.5,50,000/- advance by the complainant/ respondent no.2. But even after repeated reminders, the applicant allegedly did not execute the sale deed. Because of which, respondent no.2 pressurized him to return the advance made. Thereafter, a cheque bearing no.958876 was issued by the applicant but, on presenting it to the bank. It was returned with the remark of funds insufficient. 3. The learned counsel for the applicant pleads that 1 the respondent no.2/complainant was not ready and willing to pay the entire sale consideration inspite of repeated reminders. Therefore, he did not execute the said sale deed. He further pleads that prior to the present complaint, respondent no.2 has already registered an FIR bearing Case Crime No.51 of 2019, under Section 420, 465, 468 and 471 IPC against the present applicant at Police Station Raipur, District Dehradun, in which, the investigation officer after investigation due to lack of evidence submitted a charge- sheet only under Sections 420 and 406 IPC. He further submits that the proceeding under Section 420 and 406 bearing Criminal Case No.5951 of 2019, State vs. Virendra Pundir has been stayed by this Hon’ble Court vide order dated 07.01.2020. Therefore, he submits that it is very clear that respondent no.2 has not filed the complaint with clean hands. Two parallel proceedings/remedies cannot be taken by the respondent/complainant together. 4. An attempt has been made by the court for amicable settlement of the dispute between the parties where the applicant made a statement before this Court that he would pay the amount under cheque i.e. Rs.5,50,000/- to the respondent no.2/complainant. The complainant/respondent no.2 was not ready to accept the amount under cheque. She wanted Rs.10 lacs as stated by her advocate, so settlement failed. 5. Having heard the learned counsel for the parties and perusing the material available on record along with keeping in mind the jurisprudential principle of Section 138 of the N.I. Act which aims to ensure financial obligations are 2 met and also to provide swift legal remedy for those whose cheques have been dishonoured and Section 420 IPC which intends to penalize people who with the requisite mens rea commit the offence of cheating. This Court opines that the purpose of both the provisions are different having different objects. From the bare perusal of Section 420 IPC and Section 138 of the NI Act following differences are quite evident : 1. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case of offence under Section 420 IPC, mens rea is relevant. 2. The offence punishable under Section 420 IPC is a serious one as the sentence of seven years can be imposed. 3. In the case under NI Act there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can only be rebutted by the person who draws the cheque. Such a requirement is not there in the offences under IPC. 4. 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 requirement for the offence under IPC. 5. The case under NI Act can only be initiated by filing a complaint. However, in IPC, there is no such requirement. 3 6. The off shoot of the above discussion is that this Court is not inclined to use its special powers under Section 482 Cr.P.C. to quash a proceeding initiated against dishonour of cheque as doing so will amount to abuse of process of law as the learned counsel for the applicant could not show any legal bar against filing of a complaint under Section 138 of the N.I. Act in a case where an FIR has already resulted into filing a charge-sheet on the similar set of facts and the cognizance has been taken by the learned trial court. 7. Accordingly, the present C482 application is hereby dismissed. (Pankaj Purohit, J.) 16.05.2025 Ravi 4