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2022 (7) TMI 1027 - JAMMU & KASHMIR HIGH COURTDishonor 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.
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