ATUL KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard Mr. Nemi Chand Choudhary, the learned counsel for the petitioner, Mr. Nitin Jain, the learned counsel for the complainant, and Mr. Peeyush Kumar, the learned Public Prosecutor for the State.

(2.) The learned counsel for the petitioner has contended that although no transaction had taken place between the petitioner and the complainant, still on 14.11.2011, the complainant filed a F.I.R., wherein he claimed that the petitioner had bought gold jewelry worth Rs.48,36,228/- from him. He further claimed that a cheque for the amount of Rs.47,80,000/- was given to him. Despite the fact that he has been asking the petitioner to pay the money, the petitioner had on 06.05.2011, requested his Bank to stop the payment of the cheque. Hence, despite the transaction, the amount has not been given. According to the learned counsel, it is a false case, which is being created against the petitioner. For, no transaction had taken place with regard to the jewelry. Secondly, the falsity of the case is apparent from the fact that after a thorough investigation, the Police has submitted a negative Final Report. Although, a protest petition has been filed, before a statement could be, in the meanwhile, the Police filed an application requesting the learned Magistrate to return the case diary, as further investigation needed to be continued. Thirdly, it is a clear case of bouncing of cheque, which is punishable under Section 138 of Negotiable Instruments Act ['the N.I. Act', for short]. Therefore, the F.I.R. for offences under Sections 420 and 406 I.P.C. is not even maintainable. Once, an offence is covered by a Special Act, F.I.R. for the general offence under the general law, i.e. Indian Penal Code is not even maintainable.

(3.) Relying on the case of Siddharam Satlingappa Whetre Vs. State of Maharashtra and Others, 2011 1 SCC 694, the learned counsel for the petitioner, has contended that the falsity of the case should be kept in mind, while dealing with an anticipatory bail. Moreover, it is only in the exceptional cases, where arresting the accused is imperative that anticipatory bail should be declined. Lastly, the proceedings under Section 138 of the N.I. Act have already commenced and notice has been served upon the petitioner. Therefore, anticipatory bail should be granted to the petitioner.