TMI Blog2018 (9) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... ation because investigation is yet to be unfolded. From perusal of the case diary, it appears that interrogation/ statements of the petitioners are yet to be taken therefore, it would be too early to jump to the conclusion about role of the petitioners and since the plea of double jeopardy was discarded in the preceding paragraphs therefore, scope of interference on merits constricts to the detriments of petitioners. It is for the investigating officer to decide and take the call. He is free to take appropriate decision as per law. No such directions can be given to the authority at this juncture. In the cumulative analysis and considered opinion of this Court, scope of interference at this juncture regarding quashment of FIR does not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Instrument Act, 1881 (for short NI Act ) has been filed at the instance of respondent No.2. Now for remaining amount, respondent No.2 tried to persuade the petitioners by way of oral request as well as issuance of legal notice dated 10/02/2018 as well as 22/05/2018 but to no avail therefore, police complaint was filed on which FIR has been registered. According to counsel appearing for the petitioners, once respondent No.2 has resorted to proceeding under Section 138 of NI Act then following the principle of Double Jeopardy as enshrined under Article 20(2) of the Constitution of India as well as under Section 300 of Cr.P.C., petitioners cannot be tried for the same offence or default for which they are already tried. It is further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioners to approach this Court under Section 482 of Cr.P.C. specially when anticipatory bail of petitioner No.2 was rejected on 08/08/2018 therefore, petitioners instead of availing the remedy under Section 438 of Cr.P.C. are trying to assert by way of Section 482 of Cr.P.C. It is further submitted that scope of NI Act and scope of offence under IPC are different. It is further submitted that petitioner No.1 Ajit Kumar Jain borrowed the money in individual capacity as well as in proprietor capacity and he is also the Karta of HUF (Gannalal Dhannalal Jain) and having the separate pen number for this and therefore, he was the person who borrowed the money from the parties but it appears that petitioner No.1 borrowed ₹ 41,50, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, criminal breach of trust and cheating and criminal conspiracy have been alleged. The main ground of attack over the FIR at this stage is principle of Double of Jeopardy try to be asserted by counsel for the petitioner. Although proceedings under Section 138 of Act of 1881 may be pending against the petitioners but so far as those proceedings are concerned they are in respect of dishonour of cheque issued by the petitioner for discharging the debt or other liability but here the ingredients of offence involving mens rea has been alleged. Therefore, plea of Double Jeopardy as enshrined under Article 20(2) of the Constitution of India or encoded under Section 300 of Cr.P.C. are not attracted. Despite the fact that both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. Wherein during the pendency of the proceedings under Section 138 of the NI Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to the abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raied nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case. 36. Same remained the position s o far as the judgment in Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao is conerned. It has been held therein that once the conviction under Section 138 of the NI Act has been recorded, the question of trying the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of Cr.P.C. at the instance of petitioner No.2. Petitioners cannot be allowed to nullify the effect of order under Section 438 of Cr.P.C. passed against petitioner No.2. The Hon'ble Apex Court in the case of State of Telangana Vs. Habib Abdullah Jeelani and Others, (2017) 2 SCC 779 has deprecated the practice of inference under Section 482 and 483 of Cr.P.C. while using inherent power in a matter of quashment of FIR. Exercise of judicial restrained was mandated by the Apex Court while entertaining petitions under Section 482 of Cr.P.C. Besides that, one more aspect, is infant stage of investigation because investigation is yet to be unfolded. From perusal of the case diary, it appears that interrogation/ statements of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
