Case Law Details
Fayaz Ahmad Sheikh Vs Mushtaq Ahmad Khan (Jammu & Kashmir High Court)
Held 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. Person can be prosecuted under both the said sections.
Facts-
The respondent/complainant had filed a complaint for commission of offence under Section 138 of NIA Act against the petitioner before the Court of Forest Magistrate, Srinagar. In the complaint, it was alleged that the petitioner had approached the respondent and offered to sell a patch of land measuring 01 kanal, 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 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.
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.
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