AI Drafter 
TaxTMI 
TaxTMI 
2022 (7) TMI 1027
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....and offered to sell a patch of land measuring 01 kanal situated at Gangbugh Tehsil and District Budgam, pursuant to which the respondent/complainant advanced a sum of Rs. 29.00 lacs as part payment. It was further averred in the complaint that the petitioner/accused had promised to provide the land in question within a week's time, failing which he was to pay damages to the tune of Rs. 10.00 lacs. It was further alleged that the petitioner/accused failed to provide the land within the stipulated time as per the agreed terms which made him liable to return the amount received by him along with the damages. According to the respondent/complainant, the petitioner/accused issued three cheque 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 b....
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.... the competent court and as per the challan, the offences under Section 420 and 506 of IPC stand disclosed against the petitioner. 6. On the strength of the aforesaid admitted facts, learned counsel for the petitioner has vehemently argued that the petitioner cannot be prosecuted twice on the basis of some set of facts as it would amount to double jeopardy. He has contended that continuance of proceedings in the impugned criminal complaints against the petitioner would be an abuse of process of law and it would amount of forum shopping. In support of his contentions, learned counsel for the petitioner has relied upon the judgments of the Supreme Court in the case of Union of India vs. 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 c....
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.... 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. 11. In State of Bombay vs. S.L. Apte and anr. AIR 1961 SC 578, a Constitution Bench of the Supreme Court, while dealing with the issue of double jeopardy under Article 20(2), held as under: To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. 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 Ac....
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....ase of Sangeetaben Mahendrabhai Patel vs. State of Gujarat & anr. (2012) 7 SCC 621, 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 as under: 27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is subjudice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of 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....
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....ecision in a prosecution under Section 420, I.P.C. Some times at the time of issuing the cheque a person may induce the other person to part with property, etc. If such inducement is dishonest or fraudulent he may be committing the offence of cheating and thereby he becomes liable for prosecution. If such a person later within the time stipulated under the provisions of Negotiable Instruments Act repays the other person amount covered by the cheque he will not be liable for prosecution for the offence under Section 138 of the Act but still he can be prosecuted for the offence of cheating if at the time of issuing the cheque he had fraudulently or dishonestly induced the other person to part with property, etc. In a 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 ....