Merely because complaint u/s138 NIA is filed–is no ground to quash the separate FIR u/s420/406 IPC. Offences u/s138 NIA and u/s 420/406 IPC not mutually exclusive. Both can go on side-be-side. No double jeopardy: Punjab and Haryana High Court
It appeared that Article 20 of the Constitution of India prohibits the conviction of a person twice for the ‘same offence’ and not for separate and distinct offences. Similarly, Section 300 of Crpc. prohibits prosecution and conviction of a person again; only after such person is tried and convicted or acquitted of the said offence once. None of the above is the situation in the present case. So the protection against double jeopardy is not even remotely attracted in the present case. In view of the above, this Court does not find any ground to quash the FIR against the present petitioner held by Hon’ble Justice Rajbir Sehrawat in Sazid Khan versus State of Haryana and another [CRM-M-31873-2018].
The facts leading to this case relate to the M/s Goel Sales Corporation had filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act on 10.01.2018. It was pleaded in the complaint that one Hasan Ahmed, the State Head, of M/s Astro Suppliers, had assured the complainant to get the work of the Distributorship from Bombay Dyeing for District Gurugram. After that the Hasan Ahmed met the complainant personally and the complainant had applied for Distributorship along with various documents which were given to Hasan Ahmed. For the above-said assurance, Hasan Ahmed had taken the money. However, in the meantime, Hasan Ahmed had also ensured to the complainant that the work orders from the present petitioner firm. In the course of business, the complainant had supplied the ordered item to the accused in the complaint case, which happened to be the company as well as its proprietor, the present petitioner. Since the complainant had supplied goods to the accused company and its proprietor, therefore, as per the ledger account an amount of Rs.54,17,017/- was outstanding towards the accused up to 31.11.2017. For discharging of their liability, the petitioner, proprietor of the accused firm had issued a cheque bearing No.050758 dated 29.11.2017 for an amount of Rs.20,00,000/-. That cheque was returned unpaid by the banker of the accused with the endorsement ‘Funds Insufficient’. For that non-payment of the cheque, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. Thereafter, the complainant firm also lodged an FIR No.24 dated 23.01.2018 registered under Sections 120-B, 406,420 of IPC. The allegations are that the complainant had transferred Rs.50 lakhs in the account of the firm M/s Astro Suppliers through RTGS. The complainant was not provided Distributorship, as assured to him. Therefore, cheating has been done on him. It was further alleged that after the money was paid; the complainant contacted the above said Hasan Ahmed for getting the Distributorship. However, when the complainant contacted the above said Hasan Ahmed for demanding his money back the latter said that he did not have any money to return, and if any money was demanded back he would kill the complainant.
During the investigation, it came that when cornered by the complainant for not ensuring the Distributorship to the complainant, the said Hasan Ahmed allured the complainant to procure more business for him from various firms and therefore, asked the complainant to supply goods for several firms. Money was not paid even for these goods supplied for various firms. Hence case was registered. It deserves mention here that in the FIR case, the present petitioner is not named by the complainant in the FIR as the accused. However, during the investigation, he is found involved in the case as a part of conspiracy under Section 120-B of IPC.
While arguing the case, learned counsel for the petitioner has submitted that once the criminal complaint is filed under Section 138 of the Negotiable Instruments Act before registration of the police case then the FIR under Section 420/406 of IPC cannot be lodged for the same cause of action. It is further contended that offences under Section 138 of the Negotiable Instruments Act and the offences under Section 420, 406 IPC are mutually exclusive. Still, further, it is contended that continuing the FIR case amounts to double jeopardy.
It is clear from the record that the case under Sections 420 and 406 IPC was initiated against the firm M/s Astro Suppliers and its authorised agent, Hasan Ahmed. The present petitioner is found involved in the case by police as a participant in the conspiracy since the present petitioner received certain goods supplied by the complainant through Hasan Ahmed. This aspect has been duly supported by the Final Report filed by the Police under Section 173 Crpc. In any case, it is not a stage where the present petitioner is being held finally guilty either in the FIR case or in the complaint case. If the petitioner is not involved in any conspiracy he will have every occasion to get his name cleared at several stages by showing to the Court that he is not involved in any conspiracy. If he succeeds in showing to the Court that it was a distinct and pure business transaction between the complainant and the present petitioner then, of course, it would be only the complaint case that shall be effective. But till then the material collected by the Police justifies the involvement of the present petitioner in a conspiracy of committing an offence under Sections 420, 406 IPC as well. This Court does not find any factual basis either; to terminate the proceedings midway at this stage. “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 Crpc. prohibits prosecution and conviction of a person again; only after such person is tried and convicted or acquitted of the said offence once. None of the above is the situation in the present case. So the protection against double jeopardy is not even remotely attracted in the present case”. The court does not find any ground to quash the FIR against the present petitioner.