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

 on 02 08 CRM M 31873 20181Sr. No.126IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHCRM M 31873 2018Date of decision:27.07.2018Sazid Khan......PetititonerversusState of Haryana and another.......RespondentsCoram:HON BLE MR. JUSTICE RAJBIR SEHRAWATPresent:Mr. Samrendra Kumar Advocate for the petitioner.Rajbir Sehrawat J(Oral)The present petition has been filed for quashing of FIR No.24dated 23.01.2018 registered under Sections 120 B 406 420 of IPC at PoliceStation Gurgaon City District Gurugram and all subsequent proceedingsarising therefrom.The brief facts of this case are that M s Goel Sales Corporationhad filed a complaint under Section 138 read with Section 142 of theNegotiable Instruments Act on 10.01.2018. It was pleaded in the complaintthat one Hasan Ahmed the State Head of M s Astro Suppliers had assuredthe complainant to get the work of the Distributorship from Bombay Dyeingfor District Gurugram. Thereafter the said Hasan Ahmed met thecomplainant personally and the complainant had applied for Distributorshipalong with various documents which were given to Hasan Ahmed. For theabove said assurance Hasan Ahmed had taken money. However in themean time Hasan Ahmed had also ensured to the complainant the work orders from the present petitioner firm. In the course of business the on 02 08 CRM M 31873 20182complainant had supplied the ordered item to the accused in the complaintcase which happened to be company as well as its proprietor the presentpetitioner. Since the complainant had supplied goods to the accusedcompany and its proprietor therefore as per the ledger account an amountof Rs.54 17 017 was outstanding towards the accused upto 31.11.2017.For discharging of their liability the petitioner proprietor of the accusedfirm had issued cheque bearing No.050758 dated 29.11.2017 for an amountof Rs.20 00 000 . That cheque was returned unpaid by the banker of theaccused with the endorsement Funds Insufficient . For that non payment ofthe cheque the complainant filed the complaint against the accused thepresent petitioner under Section 138 of the Negotiable Instruments Act. Inthat complaint the present petitioner has been summoned as an accused.However thereafter the complainant firm also lodged an FIRNo.24 dated 23.01.2018 registered under Sections 120 B 406 420 of IPC atPolice Station Gurgaon City District Gurugram. In this FIR the allegationsare that the complainant had transferred Rs.50 lakhs in the account of thefirm M s Astro Suppliers through RTGS. The complainant was notprovided Distributorship as assured to him. Therefore cheating has beendone to him. It was further alleged that after the money was paid thecomplainant contacted the above said Hasan Ahmed for getting theDistributorship. However when complainant contacted the above saidHasan Ahmed for demanding his money back the latter said that he did nothave any money to return and if any money was demanded back he wouldkill the complainant. On these allegations the said FIR was registered. After investigation the challan was filed by the Police againstthe accused including the present petitioner. During the investigation it on 02 08 CRM M 31873 20183came that when cornered by complainant for not ensuring theDistributorship to the complainant the said Hasan Ahmed allured thecomplainant to procure more business for him from various firms andtherefore asked the complainant to supply goods for several firms. Moneywas not paid even for these goods supplied for various firms. Hence casewas registered. Out of those firms the proprietor of M s Om Sons SunilGupta was arrested. Thereafter their servant was also arrested for helpingthe owner of that firm escape from arrest. The accused Hasan Ahmed wasalso arrested. When arrested the accused Hasan Ahmed disclosed that outof the goods supplied by the complainant the goods amounting toRs.51 30 575 have gone to Vijay Tiwari proprietor of M s ShandilyaEnterprises. Likewise the goods worth Rs.20 17 848 have gone to SunilGupta and goods for Rs.8 88 660 have gone to M s Sanu Drishti ExportPvt. Ltd. and goods worth Rs.54 17 017 have gone to Sajid Khan beingproprietor of M s Oriental Hometex. That is how the name of the presentpetitioner cropped up in the criminal case involved in the FIR as part of theconspiracy to take out the goods in the name of the business from thecomplainant. It deserves mention here that in the FIR case the presentpetitioner is not named by the complainant in the FIR as the accused.However during investigation he is found involved in the case as a part ofconspiracy under Section 120 B of IPC. While arguing the case learned counsel for the petitioner hassubmitted that once the criminal complaint is filed under Section 138 of theNegotiable Instruments Act before registration of the police case then theFIR under Section 420 406 of IPC can not be lodged for the same cause ofaction. In support of his argument he has relied upon the judgment of the on 02 08 CRM M 31873 20184Supreme Court rendered in 2000(1) RCR(Cr.) 707 G.Sagar Suri andanother vs. State of UP. and others and also the judgment of this Courtrendered in CRM M 32912 2007 titled as Ashok Puri vs. State of Punjaband another decided on 19.12.2011 which is solely based on the abovesaid judgment of the Supreme Court. Learned counsel for the petitioner hassubmitted that the proceedings under Sections 420 406 IPC as initiated onthe basis of FIR in question are bound to be quashed. It is further contendedthat offences under Section 138 of the Negotiable Instruments Act and theoffences under Section 420 406 IPC are mutually exclusive. Still further itis contended that continuing the FIR case amounts to double jeopardy. However this Court does not find any force in the argumentsof learned counsel for the petitioner. There is no concept of same cause ofaction or for that matter of cause of action in the criminal jurisprudence.What is punishable in criminal law is the conduct of an accused or theconsequences arising from such conduct as reflected in a fact or set of facts.If such two distinct facts or set of facts or the consequences thereofconstitute more than one offences then the accused is liable to be prosecutedand punished for all such offences whether the offences are punishableunder the general penal law as contained in IPC only or the same arepunishable under general criminal and special criminal law separately. It issettled law that mere fact that a conduct is punishable under special law isnot the ground to hold that such conduct can not be punished under generalcriminal law. In the present case the set of facts involved are of twodifferent stages. In the complaint case the factum of issuance of cheque ona business transactions and the dishonour thereof is involved. For that thecriminal complaint has been filed under Section 138 of the Negotiable on 02 08 CRM M 31873 20185Instruments act. No fault could be found in that. Even the petitioner hasnot questioned the validity of the complaint filed by the complainant underSection 138 of the Negotiable Instruments Act in the present proceedings.So far as the FIR is concerned it relates to several transactions set of factsincluding supply of some of the goods by the complaint on therepresentation of the accused Hasan Ahmed which were ultimately receivedby the present petitioner. The present petitioner does not claim to have anyconnection with the complainant of business or otherwise therefore thegoods were supplied only through representation by Hasan Ahmed.Admittedly the petitioner has received the goods but has not made thepayment. After investigation it has been found by the Police as mentionedin the Final Form Report(under Section 173 Cr.P.C.) that instead ofreturning the money taken by Hasan Ahmed for getting the Distributorshipto the complainant he started alluring the complainant further to supplycertain goods to certain entities through the said Hasan Ahmed. One ofthose entities happened to be the firm of the present petitioner. Afterinvestigation the Police has found an angle of conspiracy in this matterwhich involves the present petitioner as well. As is so discernible from theFIR even the name of the present petitioner does not find mentioned in it.Therefore it can not be said by any stretch of imagination that theproceedings in the FIR against the petitioner has been started by thecomplainant as misuse of the process of the court and therefore should bequashed on that ground. Once the Police has found material to present thechallan against the petitioner showing his involvement in the conspiracy then per se the FIR can not be quashed on this ground. The argument of learned counsel for the petitioner that the on 02 08 CRM M 31873 20186offences under Section 138 of Negotiable Instruments Act and Section420 406 IPC are mutually exclusive and therefore once the complaint underSection 138 of Negotiable Instruments Act has been filed and summonshave been issued by the Trial Court in the complaint case finding primafacie the existence of legally enforceable liability thereafter the FIR underSection 406 420 IPC which presumes criminal intent is not maintainablein law also does not find favour from this Court. It is well settled law thatin criminal jurisprudence an act of an accused becomes punishable from thestage of attempt although in some cases it becomes punishable even fromthe stage of preparation. However by any means attempt to commit anoffence conspiracy to commit an offence and the commission ofsubstantive offence in one stage and chain of acts and then as aconsequence of those acts but at different stage and different act resultinginto a different offence under a different law can always be carried forwardseparately. So far as the complaint under Section 138 NegotiableInstruments Act is concerned the set of facts which constitute this offencestart only from the stage when liability is created in discharge of thatliability the cheque is issued and completed when the cheque is dishonored.This offence neither explicably requires mense rea nor explicitly excludes it.However there can definitely be situations where liability incurred by theaccused of offence under Section 138 of the Negotiable Instruments Actresults from fraud misrepresentation or through a conspiracy committed atprior stage of sequence or facts. In that situation by no means it can besaid that an accused can not be prosecuted for the fraud committed by him conspiracy in which it is involved or the misrepresentation from which hehas benefitted. Therefore simply because a complaint is filed under on 02 08 CRM M 31873 20187Section 138 of the Negotiable Instruments Act does not mean that underany circumstances a person can not be prosecuted under Sections 420 406IPC. Even in case where the legally enforceable liability is incurred by aperson under a commercial agreement which was procured by such personby coercion undue influence fraud or misrepresentation the liability canstill be enforced by the person upon whom fraud was played as prescribedunder Section 19 and 19 A of the Indian Contract Act. Such agreement isvoidable only at the option of the person who has been cheated and not voidaltogether or voidable at the option of the person who has cheated. Sodespite being based on fraud such liability remains legal and valid againstthe person who had played the fraud. In that situation a person woulddefinitely be liable for the offence under Sections 420 and 406 IPC as wellas under Section 138 of the Negotiable Instruments Act. Another aspect which clarifies this situation is that in a trialonly under Section 138 of the Negotiable Instruments Act Court can notconvict a person for fraud or misappropriation although the liability may bearising from entrustment of the amount itself as well. The limited scope oftrial and punishment for Section 138 of the Negotiable Instruments Act isthe punishment for dishonor of the cheque. If the argument of learnedcounsel for the petitioner is accepted then the offence under Section 406 or120 B IPC or for that matter Section 420 IPC are liable to go unpunished despite the same having been committed in the open glare of law. Although the learned counsel for the petitioner has relied uponthe judgment of the Hon ble Supreme Court in the case of G.Sagar Suri(supra) however that judgment has not laid down as a matter of precedent that once a complaint is filed under Section 138 A of the Negotiable on 02 08 CRM M 31873 20188Instruments Act then no FIR under any circumstances be filed or carriedon against the accused for an offence under Sections 406 420 IPC or underSection 120 B IPC. This judgment is distinguishable on the facts of thepresent case. A bare perusal of the judgment shows that this judgment wasrendered by the Hon ble Supreme Court in the facts and circumstances ofthat case. Entire family of the accused was sought to be involved in thecrime. In that case the accused had even retired from the company as aDirector the Police had not filed challan against the accused and there waseven difference of names of the persons mentioned in the FIR. Otherwise the judgment gives an indication that Section 420 and 406 IPC could havebeen added in the complaint filed under Section 138 of the NegotiableInstruments Act. Therefore the Hon ble Supreme Court observed that once for the same grievance the petitioner in that case has lodged complaintunder Section 138 of the Negotiable Instruments Act then in the name ofseparate prosecution he has no reason or occasion to harass the entirefamily. In the present case it is clear from the record that the case underSections 420 and 406 IPC was initiated against the firm M s AstroSuppliers and its authorised agent Hasan Ahmed. The present petitioner isfound involved in the case by police as participant in the conspiracy sincethe present petitioner received certain goods supplied by the complainantthrough Hasan Ahmed. This aspect has been duly supported by the FinalReport filed by the Police under Section 173 Cr.P.C.In any case it is not a stage where the present petitioner isbeing held finally guilty either in the FIR case or in the complaint case. Ifthe petitioner is not involved in any conspiracy he will have every occasionto get his name cleared at several stages by showing to the Court that he is on 02 08 CRM M 31873 20189not involved in any conspiracy. If he succeeds in showing to the Court thatit was a distinct and pure business transaction between the complainant andthe present petitioner then of course it would be only the complaint casewhich shall be effective. But till then the material collected by the Policejustifies the involvement of the present petitioner in conspiracy ofcommitting offence under Sections 420 406 IPC as well. This Court doesnot find any factual basis either to terminate the proceedings midway at thisstage. The next argument of the learned counsel that the FIR case ishit by protection against Double Jeopardy is also without any substance.Article 20 of the Consitution of India prohibits conviction of person twicefor the same offence and not for separate and distinct offences. Similarly Section 300 of Cr.P.C. prohibits prosecution and conviction of a personagain only after such person is tried and convicted or acquitted of the saidoffence once. None of the above is the situation in the present case. So theprotection against double jeopardy is not even remotely attracted in thepresent case. In view of the above this Court does not find any ground toquash the FIR against the present petitioner. Dismissed. 27th July 2018[RAJBIR SEHRAWAT]Shivani Kaushik JUDGEWhether speaking reasonedYes NoWhether ReportableYes No 

Summary: 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.