1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4379 OF 2009 1. Sanjay Santukrao Jawalekar, Age-38 years, Occu-Business, R/o.N-11-A, 75/4, Sudarshannagar, C/o.Venkatesh Colour Home, T.V.Center, HUDCo, Aurangabad. 2. Venkatesh Santukarao Jawalekar, Age-43 years, Occu-Service, R/o.Shantiniketan Colony, Tq. And Dist. Osmanabad. APPLICANTS VERSUS 1. The State of Maharashtra, 2. Laxman S/o.Dashrath Patil, Age-57 years, Occu-Agriculturist, R/o.N-9, H-164/3, Hudco, Aurangabad RESPONDENTS Mr.N.V.Gaware, learned counsel for applicants. Mr.S.G.Nandedkar, learned APP for State Mr.V.G.Sakolkar, learned counsel for respondent no.2. CORAM : A.V.POTDAR, J. DATE : 16/07/2010 ORAL JUDGMENT : 1. By the present application, the applicants have approached this Court to quash and set aside the FIR lodged in respect of CR No. 2 233/2007, registered in N-7, Cidco Police Station of Aurangabad, for the alleged offence punishable u/s. 420, 506 r/w. 34 of IPC. 2. Heard learned counsel for applicants, learned APP for State, and learned counsel for original complainant/respondent no.2. Perused the papers of investigation till carried out. 3. Rule. 4. Rule made returnable forthwith. 5. By consent of the parties, heard finally at the stage of admission 6. Such of the facts which are necessary to consider the submissions made across the bar by the learned counsel for applicants and respondent no.2, can be summarized as follows. It appears that respondent no.2 has filed complaint on 27/04/2007 against the brother of these applicants by name Dhananjay Jawalekar in the Court of J.M.F.C. Aurangabad for the offence punishable u/s. 138 of The N.I.Act. The contents of the complaint shows that on the assurance given by the said Dhananjay, who pretends himself to be dealing in the share market as a share broker, induced/given temptation to the 2nd respondent to invest his money in the share business. Accordingly, the respondent no.2 handed over cash in the sum of Rs.72,000/- for investment in the 3 shares. But, it appears that Dhananjay failed to invest money of respondent no.2 properly in the share business. On this count, dispute arose between the said Dhananjay and respondent no.2. Ultimately, the said Dhananjay issued cheque in the sum of Rs. 72,000/- in favour of 2nd respondent. When this cheque was presented in the bank, it was dishonoured with remarks of the concerned bank “for want of sufficient funds”, which gave rise to file SCC No.2451/2007 before the J.M.F.C. Aurangabad. It further appears that during the pendancy of said application, the said Dhananjay and 2 nd respondent have settled the matter amicably and accordingly pursis was filed before 4 th J.M.F.C. Aurangabad on 18/10/2008, duly signed by the said Dhananjay, 2 nd respondent and their advocates. It appears that the said pursis was marked at Exh. 16 in the said proceeding and on 03/12/2008, on the basis of said pursis, the complaint was disposed of as withdrawn by the 2 nd respondent. 7. It appears that before withdrawal of the said complaint, one application was moved by the 2 nd respondent before P.I., N-7, Cidco Police Station, Aurangabad. On the basis of said application, present offence was registered on 03/11/2007 vide station diary entry no.28, dated 03/11/2007. It is alleged in the said complaint that the said Dhananjay alongwith his wife and these applicants induced the 2nd respondent, who is also complainant in the complaint filed u/s. 138 of The N.I.Act, and that all of them with their common intention, cheated the 2 nd respondent under the garb to invest money in the 4 share business, and thus there is wrongful gain to those 4 persons including the 2 applicants and wrongful loss to the 2nd respondent. 8. This complaint is the offshoot of the complaint, which is earlier lodged u/s. 138 of The N.I.Act by the same respondent. 9. It is the first principle of law that, for the offences arises out of same transaction, the person shall not be tried twice. On perusal of the contents of the complaint u/s. 138 of The N.I.Act and the contents of the present complaint, it reveals that both these complaints are the offshoot of same transaction. Then it is clear that for the same transaction, there shall not be two offences and if those are two offences, they require to be tried together. It is admitted position that the complaint lodged u/s.138 of The N.I.Act was disposed of as withdrawn. Apart from it, the said Dhananjay and his wife have filed Cri.Appl.No.2951/2008 before this Bench and was allowed vide judgment and order dated 11/08/2009. It is observed in para no.6 to 9 of the said order that, The averments in the subsequent proceedings, more or less, are in tune to the subject matter of proceedings under section 138 which is now terminated. The only difference is impleading wife of the present applicant in the said proceedings, who was not party in the prosecution under section 138. I quite see that since there was already agitation of claim by respondent no.2 in SCC No.2451/2007, which 5 has been rightly addressed to by virtue of withdrawal order dated 03/12/2008, there could not have been anything left over for further prosecution as against accused/applicant and particularly vide separate proceedings referred above, giving rise to FIR No.I-233/2007. The allegations are, as stated earlier, being repetition and no new grounds are discovered, could not have been further prosecuted. The allegations are, indeed, multiplication and it amounts to abuse of process. The Hon’ble Apex Court, in the matter of G.Sagar Suri and another Vs.State of U.P. And others (AIR 2000 Supreme Court 754) in a matter similarly placed, for an offence under section 138 of The Negotiable Instruments Act, the complainant therein had prosecuted accused for an offence under sections 406 and 420 of IPC for the same events. The Apex Court observed that such prosecution can not further be entertained and it should not be treated as a short cut for a decree of money. Then now the question arose, after the complaint lodged against the principal accused is quashed by the order of this Court, whether the said complaint to proceed against these applicants, who have not received any gain or not caused any loss to the 2nd respondent. The fact remains that these applicants are not the beneficiaries out of the transaction entered into between the 2nd respondent and said 6 Dhananjay and if it is so, by virtue of the earlier complaint lodged against the said Dhananjay which was disposed of as withdrawn, the present complaint is nothing but the abuse of process of law and if it so, the said complaint is liable to be quashed and set aside. Accordingly, the complaint lodged to the extent of these applicants in N-7, Cidco Police Station vide CR No.233/2007, registered on 03/11/2007 is hereby quashed and set aside. 10. Rule thus made absolute as indicated above. 11. Application stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/JULY 2010/cri.appl.4379-09