TMI Blog2022 (7) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que bearing Nos. 0010168 for an amount of Rs. 5.00 lacs, 000170 for an amount of Rs. 5.00 lacs and 000171 for an amount of Rs. 5.00 lacs all dated 20th March, 2021, drawn on HDFC Bank Ltd. Branch office Baghat Barzulla. The respondent/complainant presented these cheques before the concerned bank but the same were dishonoured with the endorsement drawers account closed vide memo dated 9th April, 2021. The respondent/complainant is stated to have served a demand notice upon the petitioner/accused by sending the same through registered post on 16th April, 2021 but in spite of having received the said notice, the petitioner/accused did not liquidate the amount of cheques to the respondent/complainant compelling him to file the impugned complaint before the trial Magistrate on 30.07.2021. 4. CRM(M) No. 281/2021 arises out of a complaint filed by the respondent against the petitioner before the Court of Forest Magistrate, Srinagar, alleging commission of offence under Section 138 of the NI Act. As per the impugned complaint, the petitioner/accused had offered to sell a patch of land measuring 10 marlas situated at Gangbugh Tehsil and District Budgam, to respondent. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/S. Cipla Ltd. (2017) 5 SCC 262 and Rajiv Thapar Ors. vs. Madan Lal Kapoor, 2013 1 Crimes (SC) 169. 7. It has also been urged by the petitioner that the impugned complaints have been filed by the respondent/complainant beyond the stipulated time, inasmuch as the complaints have been filed after about two and half months of service of statutory notice of demand by the petitioner/accused. 8. I have heard learned counsel for the parties and perused the material on record including the trial court record. 9. It is not in dispute that the cheques which are subject matter of the two impugned complaints also find mention in the challan filed against the petitioner emanating from FIR No. 85/2021 of Police Station, Budgam. It is also not in dispute that respondent Mushtaq Ahmad has lodged the said FIR on the basis of allegations which are identical to the allegations made in the impugned complaints. The question that arises for consideration is whether a person can be prosecuted for offence under Section 420 of IPC as also for offence under Section 138 of NI Act on the same set of facts and whether or not it would amount to double jeopardy. In order to find answer to this questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. xx xx xx xx The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to the act or omission constituting an offence under two or more enactments , the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to shall not be liable to be punished twice for the same offence . If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. 12. In A.A. Mulla Ors. v. State of Maharashtra Anr., AIR 1997 SC 1441, the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. 14. A similar question arose before the Andhra Pradesh High Court in the case of V. Kutumba Rao vs. Chandrasekhar Raso and anr. 2003 CriLJ 4405. It would be apt to reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution under Section 138, Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under Section 420, I.P.C. mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, I.P.C. Therefore, the two offences covered by Section 420, IPC and Section 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr.P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and Section 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and Section 420 of IPC simultaneously. The contention of learned counsel for the petitioner in this regard is without any merit. 17. The other contention raised by the petitioner is with regard to belated filing of the impugned complaints. In this regard it is to be noted that the impugned complaints have been filed by respondents/complainants during the period which is covered by the order of the Supreme Court dated 10th January, 2022, passed in the case titled IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION (Suo Motu writ petition (C) No. 3 of 2020), wherein it has been laid down that the period from 15.03.2020 till 28.02.2022 shall stand excluded in computing the periods prescribed under proviso (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881. In view of the aforesaid order of the Supreme Court, it cannot be stated that the impugned complaints have been filed by respondents belatedly. Therefore, the order of taking cognizance and issuing process by the learned trial Magistrate, which has been impugned herein, does not call for any interference from this Court. 18. For the foregoing reasons, both the petitions lack merit and the same are dismissed accord ..... 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