IMPORTANT POINT
Double Jeopardy – Plea of Double Jeopardy cannot be sustained where subsequent offence is entirely different from previous offence.

JUDGMENT

Ajay Kumar Gupta, J.—By the present revisional application, the petitioner/accused challenged the order dated 09.01.2020 passed by the learned Metropolitan Magistrate, 9th Court at Calcutta in connection with G.R. Case No. 17/2014 arising out of Park Street Police Station Case No. 05/2014 dated 2nd January, 2014 under Sections 406/420/506 of the Indian Penal Code thereby the learned Magistrate rejected the prayer for discharge of the petitioner from the said proceeding.

2. Sans unnecessary details, the facts of the instant case are as under: -

2a. In the year 2007, the petitioner entered into an agreement for hypothecation of a vehicle (ALTO/LXi) by availing loan amount of Rs. 2,86,000/- from the ICICI Bank Limited with terms and conditions that the petitioner shall re-pay in equal monthly instalments till final payments of principal and interest accrued therein. The said vehicle remained in the possession of the petitioner for his use. subsequently vide deed of assignment dated 31.12.2007, the said ICICI Bank assigned the loans/debts payable by the petitioner to the M/s Kotak Mahindra Bank Limited, opposite party no. 2 herein. The vehicle in question being registration No. WB 02 TE 3679 was fraudulently taken away by one Lakshman Das and others from the possession of the petitioner. They did not return the vehicle even on several requests by the petitioner. Petitioner neither hiding away the vehicle nor sold to anyone. As such, the petitioner had compelled to file a criminal case under Section 156(3) of the Cr.PC, 1973 on 13.02.2009 being Misc. Case No. 169 of 2009 against one Lakshman Das and others. In pursuance of order passed by the learned Court of Additional Chief Judicial Magistrate in the said criminal proceeding, an FIR was registered by the police as Noapara Police Station Case No. 29/2009 dated 14.02.2009 under Section 420 of the IPC against Lakshman Das and others and same is still pending.

2b. During pendency of the said case, the opposite party no. 2/ M/s Kotak Mahindra Bank Limited filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner, inter alia, alleging that the petitioner had availed a loan facility for purchasing a vehicle under Loan Account being No. LACAL00004077499 as executed by and between the parties. A Cheque bearing No. 745064 dated 05.01.2010 amount to Rs.2,89,100/- was drawn on State Bank of India, Ichapur Branch for discharging his liability but the said cheque was dishonoured. Be that as it may, the said complaint case was dismissed by the learned Metropolitan Magistrate, 16th Court at Calcutta due to non- appearance of the complainant and finally petitioner was acquitted from the case filed under Section 138 of the N.I. Act, 1881 vide order dated 23.11.2011.

2c. It is further case of the petitioner that even after dismissal or acquittal by the learned Magistrate, the opposite party no. 2 did not prefer any appeal/revision against the said order even a lapse of more than 3 years. Rather the opposite party no. 2 lodged another false complaint against the petitioner, which was registered as Park Street Police Station Case No. 5/2014 dated 02.01.2014 under Sections 406/420/506 of the Indian Penal Code, 1860. After culmination of investigation, a charge sheet has been submitted by the Investigating Officer mechanically and perfunctory manner against the petitioner under Sections 406/420/506 of the IPC on 25th September, 2014 and thereby the learned Court below also erred in taking cognizance against the petitioner without sufficient materials. As such, the petitioner has filed an application under Section 239 of the Code of Criminal Procedure, 1973 praying for discharge from the said proceeding on certain grounds but the learned Court below rejected the prayer whimsically and capriciously without considering the case of the petitioner vide order dated 09.01.2020, which is the subject matter of challenge in this revisional application and the same has