- (1.) Heard Sri Sushil Shukla, learned counsel for the revisionist and learned A.G.A. for the State.
(2.) Under challenge is the order dated 8.12.2004 whereby the learned Magistrate summoned the revisionist for offences under Sections 420,452,323,504 and 506 I.P.C. on the protest petition filed by the informant against the final report submitted by the investigating officer. The prosecution case is that the informant published an advertisement in which he offered help to the borrowers of loan from banks on certain conditions. The accused approached the informant and entered into an agreement on 15.9.2003. In furtherance of the agreement, the accused advanced two cheques, one of L 1 lakh and the other of L 1,77,000/-. The cheques were dishonored . The informant then lodged a first information report dated 15.5.2004 alleging therein that the accused entered into two agreements on 1.11.2003 and 12.1.2004 in respect of the loan of L 10 lakhs. The accused knew that there was no sufficient amount in the bank account of the accused, still the accused issued a cheque in order to cheat the informant. The accused was contacted on telephone whereon the accused Bhajan Singh alongwith his son Gurubhag Singh came to the informant's house with naked sward and called the informant to come out ; the informant took fright and did not come out whereon both father and son entered the house and belabored the complainant; the witnesses were attracted to intervene and save the informant; the accused left threatening. The police investigated the case and pressed the final report finding not sufficient evidence for filing charge-sheet. It is pointed out that the investigating officer took into consideration the complaint filed by the informant for offence under Sections 138 and 142 of Negotiable Instruments Act.When the final report was pressed by the police in the State Case, the informant filed protest petition alongwith copies of the affidavits and some other documents. The learned magistrate considered the police report and the protest petition and also the affidavits filed alongwith the protest petition and passed the order impugned summoning the accused under Sections 420,452,323,504 and 506 (2) I.P.C. It may be pointed out that in the complaint case filed by the informant under sections 138 and 142 of Negotiable Instruments Act, the Magistrate summoned the accused for offences under Section 420 I.P.C. and Sec. 138 of the Negotiable Instruments Act. Learned counsel for the revisionist argues that the offence under Section 420 I.P.C. has been taken cognizance of in the State case as well as in the complaint case. The State case, therefore, would be an abuse of the process of law and, therefore, the order summoning the accused in the State case be set aside.
(3.) The State case was instituted for offences under Sections 420,452,323,504 and 506 (2) I.P.C. If the entire order for summoning the accused to face the trial for offences under Sections 420,452,323,504 and 506 (2) I.P.C. is set aside, the informant shall not have remedy for the offences not cognizable under the inevitable complaint filed and, therefore, the order taking cognizance and summoning the accused in the State case cannot be set aside. However, the trial of the accused in the complaint case as well as in the State case cannot be repeated for offence under Section 420 I.P.C. because the offence under Section 420 I.P.C. has been attached to the offence under Section 138 Negotiable Instruments Act.;