A criminal proceedings for cheating under the provisions of the Indian Penal Code (IPC) is maintainable in law even after initiation of a separate proceedings under Section 138 of the Negotiable Instruments (NI) Act, 1881, in a cheque dishonour case, said the High Court of Karnataka.
“In a case under the NI Act, what is required to be noticed is whether it is for a legally enforceable debt and a fine is imposed. In an offence involved on the same instrument under Sections 406 or 420 IPC, a sentence of seven years can be imposed and the element of mens rea is what is required to be seen in a case for offence of cheating under Section 420 of the IPC inter alia,” the High Court said.
Justice M. Nagaprasanna passed the order while dismissing a petition filed by directors of a company questioning lodging of a First Information Report under Section 420 of the IPC against them by the complainant , who had initially initiated proceedings under Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the NI Act.
Initiation of separate proceedings for cheating under IPC in addition to proceedings under Section 138 of NI Act does not amount to ‘double jeopardy’, the High Court said.
The separate proceedings cannot be violative of the Article 20(2) of the Constitution of India, which states that, “No person shall be prosecuted and punished for the same offence more than once,” or Section 300(1) of the Code of Criminal Procedure, which states that, “Person once convicted or acquitted not to be tried for same offence”, the High Court said while citing a judgement of the apex court.
