A person tried earlier for the offences
punishable under the provisions of section 138 of the Negotiable Instrument Act
(for cheque bounce) is not a bar for
punishing under section 420 Indian Penal Code (IPC). Doctrine of Double
Jeopardy not attracted. As observed in the Hon’ble Supreme Court decision in Sangeetaben Mahendrabhai Patel Vs State of Gujarat
& Another20.
The Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel Vs State of Gujarat
& Another20 held:
“Admittedly, the appellant had been tried earlier for the offences punishable
under the provisions of section 138 N.I Act and the case is sub judice 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 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.
There may be some overlapping 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.”
Prepared by:
S. Hemanth
Advocate at Hemanth
& Associates
