Can I file a case under section 420 IPC and section 138 as well?
Can I also file a 420 complaint against someone whose cheque has bounced and I have filed a 138 NI case against him already? It will put more pressure on him and he will pay my money to save himself from going to jail.
Yes, you can register a Criminal Complaint under Section 420 of the Indian Penal Code along with a Section 138 NI Act Complaint.
There are different views taken by different High Court, however, the Hon'ble Supreme Court while differentiating the two offences had held that:
In the prosecution under Section 138 N.I. 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 under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
Therefore both the complaints can be filed simultaneously.
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