August 14, 2018
Cheque Dishonor – Complaint u/S 138 of NI Act, does not mean that a person can’t be prosecuted u/S 420, 406 IPC.
In this recent case, the High Court of Punjab & Haryana while brushing aside the plea of double jeopardy held that complaint for cheque dishonor under Section 138 of Negotiable Instrument Act does not mean that FIR registered under Section 420/406 of IPC would be barred.
Case name: Sazid Khan v. State of Haryana & Anr.
The Petitioner in the case prayed for quashing of FIR registered under Sections 120-B/406/420 of IPC on the ground that the complainant had also lodged complaint under Section 138 of Negotiable Instrument Act and that continuing the FIR on the same cause of action amounted to double jeopardy.
The High Court of Punjab & Haryana refused to quash the FIR and made the following observations in the case:
- That there is no concept of ‘same cause of action’ or for that matter, of ’cause of action’ in the criminal jurisprudence. What is punishable in criminal law is the conduct of an accused or the consequences arising from such conduct as reflected in a fact or set of facts. If such two distinct facts or set of facts or the consequences thereof constitute more than one offences then the accused is liable to be prosecuted and punished for all such offences, whether the offences are punishable under the general penal law under IPC only or the same are punishable under general criminal and special criminal law separately.
- That it is settled law that mere fact that a conduct is punishable under special law is not the ground to hold that such conduct cannot be punished under general criminal law.
- That an act of an accused becomes punishable from the stage of attempt, although in some cases it becomes punishable even from the stage of preparation. However, by any means, attempt to commit an offence, conspiracy to commit an offence, and the commission of substantive offence, in one stage and chain of acts, and then as a consequence of those acts but at different stage and different act resulting into a different offence under a different law can always be carried forward separately.
- That as far as the complaint under Section 138 of Negotiable Instrument Act is concerned, the set of facts which constitute this offence start only from the stage when liability is created, in discharge of that liability the cheque is issued and completed when the cheque is dishonored. This offence neither explicably requires mens rea nor explicitly excludes it. However, there can definitely be situations where liability incurred by the accused of offence under Section 138 of the Negotiable Instruments Act results from fraud, misrepresentation or through a conspiracy committed at prior stage of sequence or facts. In that situation, by no means it can be said that an accused cannot be prosecuted for the fraud committed by him, conspiracy in which it is involved or the misrepresentation from which he has benefitted. Therefore, simply because a complaint is filed under Section 138 of Negotiable Instrument Act, does not mean that under any circumstances, a person cannot be prosecuted under Sections 420, 406 IPC.
- That the FIR case is not hit by protection against ‘Double Jeopardy’. That Article 20 of the Constitution of India prohibits conviction of person twice for the ‘same offence’ and not for separate and distinct offences. Similarly, Section 300 of Cr.P.C. prohibits prosecution and conviction of a person again; only after such person is tried and convicted or acquitted of the said offence once. So the protection against double jeopardy is not even remotely attracted in the present case.
The entire case can be accessed here.