Simultaneous Prosecution Of Accused U/S 420 IPC & S.138 NI Act On Same Set Of Facts Not "Double Jeopardy": J&K&L High Court

The record before the court revealed that the respondent-complainant had filed two separated complaints alleging offences under sec 138 NI Act before trial court Srinagar. The record also revealed that prior to the filing of the aforesaid two complaints, the respondent-complainant had also filed an application before the Chief Judicial Magistrate, Budgam, pursuant to order passed by the said Court an FIR for offences under Section 420, 506 IPC of P/S, Budgam, came to be registered. It was also brought to the notice of the bench that the contents of the aforesaid FIR are identical to the impugned complaints and challan against the petitioner had been produced before the competent court wherein offences under Section 420 and 506 of IPC stand disclosed against the petitioner.

In order to deal with the moot question as to 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, the bench found it worthwhile to reproduce the observations of supreme court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, wherein the constitutional bench of SC observed:

"The fundamental right which is guaranteed under Article 20 (2) enunciates the principle of "autrefois convict" or "double jeopardy" i.e. a person must not be put in peril twice for the same offence . The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of "autrefois acquit" is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter."

Applying the said ratio the court observed that 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, the bench underscored .

The bench delving deep into the subject further recorded that 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. It is only when accused fails to make the payment within the stipulated time upon receipt of notice of demand that the offence under Section 138 of NI Act is made out against an accused. 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 bench observed.

Dismissing the petition the court stated that the mere fact of respondent-complainant 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 bench concluded.

Case Title: FAYAZ AHMAD SHEIKH Vs. MUSHTAQ AHMAD KHAN

Citation: 2022 LiveLaw (JKL) 73 

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