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Sunday, November 4, 2012

PERSON CONVICTED UNDER S.138 N.I ACT (CHEQUE BOUNCE) CAN BE PROSECUTED UNDER S.420 IPC


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