2022 (7) TMI 1027 - HC - Indian Laws

Dishonor of Cheque - forum shopping - complaints have been filed after about two and half months of service of statutory notice of demand by the petitioner/accused - offences under Section 420 and 506 of IPC stand disclosed against the petitioner - prosecution twice on the basis of some set of facts - double jeopardy - Section 138 of NI Act - HELD THAT - The Supreme Court in the case of SANGEETABEN MAHENDRABHAI VERSUS STATE OF GUJARAT ANR. 2012 (4) TMI 728 - SUPREME COURT , while dealing with exactly the same question i.e. whether prosecution for offence under Section 138 of the NI Act and offences under Section 406, 420 of IPC can be continued simultaneously against an accused on same set of facts, observed that 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. Thus, it is clear that offences under Section 138 of the NI Act and Section 420 of IPC are distinct from each other because ingredients of the two offences are different. While in a prosecution under Section 138 of NI Act, fraudulent or dishonest intention at the time of issuance of cheque need not be proved but in a prosecution under Section 420 of IPC, such intention is an important ingredient to be established. For proving offence under Section 138 of NI Act, it has to be established that the cheque has been issued by the accused to discharge a legally enforceable debt or liability and the same has been dishonoured for insufficiency of funds etc. and despite receipt of statutory notice of demand, the accused has failed to pay the amount of cheque within the stipulated time - offence under Section 420 of IPC is made out at the time of issuance of the cheque itself which is not the case with offence under Section 138 of NI Act. Therefore, the two offences are distinct from each other and the principle of double jeopardy or rule of estoppel does not come into play. The mere fact that respondent Mushtaq Ahmad had lodged an FIR, which has culminated in lodging of a challan against the petitioner containing allegations relating to the same transaction which is subject matter of the impugned complaints, does not make out a case of forum shopping or double jeopardy. The complainants are well within their rights to continue prosecution for both these offences i.e. offences under Section 138 of NI Act and Section 420 of IPC simultaneously. The contention of learned counsel for the petitioner in this regard is without any merit. Petition dismissed.

Summary

Issues Involved:
1. Double Jeopardy
2. Forum Shopping
3. Timeliness of Filing Complaints

Detailed Analysis:

1. Double Jeopardy:
The petitioner argued that being prosecuted for the same set of facts under both Section 138 of the Negotiable Instruments Act (NI Act) and Section 420 of the Indian Penal Code (IPC) constitutes double jeopardy. The court analyzed the legal position on double jeopardy, referencing several landmark judgments. In *Maqbool Hussain v. State of Bombay*, the Supreme Court held that double jeopardy applies when a person is tried for the same offense twice, but the offenses under Section 138 NI Act and Section 420 IPC have different ingredients. Similarly, in *State of Bombay vs. S.L. Apte*, the court emphasized that the offenses must be identical for double jeopardy to apply. The court also cited *Sangeetaben Mahendrabhai Patel vs. State of Gujarat*, which clarified that the mens rea required for Section 420 IPC is not necessary for Section 138 NI Act, making the offenses distinct. Therefore, the principle of double jeopardy does not apply as the ingredients of the two offenses are different.

2. Forum Shopping:
The petitioner contended that the respondent's filing of multiple complaints for the same transaction amounts to forum shopping. The court rejected this argument, stating that the respondent is within their rights to pursue both prosecutions simultaneously. The court referenced *V. Kutumba Rao vs. Chandrasekhar Raso*, which held that the offenses under Section 420 IPC and Section 138 NI Act are distinct, and prosecuting them simultaneously does not constitute forum shopping. The court concluded that the respondent's actions do not amount to forum shopping or double jeopardy.

3. Timeliness of Filing Complaints:
The petitioner argued that the complaints were filed beyond the stipulated time. The court noted that the complaints were filed during the period covered by the Supreme Court's order in *IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION*, which excluded the period from 15.03.2020 to 28.02.2022 from the limitation period due to the COVID-19 pandemic. Therefore, the complaints were not filed belatedly, and the trial Magistrate's order to take cognizance and issue process was upheld.

Conclusion:
The court dismissed both petitions, ruling that the prosecutions under Section 138 NI Act and Section 420 IPC do not constitute double jeopardy or forum shopping, and the complaints were filed within the extended limitation period. The trial Magistrate's order was deemed appropriate, and no interference was warranted.