Prosecutions under Section 420 IPC and Section 138 N.I. Act are distinct; trial for both based on same facts not permissible due to differing evidentiary requirements.

JUDGMENT :

(ARUN DEV CHOUDHURY, J.)

1. Heard Mr. P. P. Dutta, learned counsel for the petitioners. Also heard Mr. K. K. Das, learned Additional Public Prosecutor, Assam representing the State respondent, Mr. D. Chakraborty, learned counsel for the respondent No. 1 and Mr. A. K. Bhuyan, learned Amicus Curiae.

2. The present petition under Section 482 of the Code of Criminal Procedure read with Section 401 /397 Cr.P.C. is filed assailing an order dated 29.05.2015 passed in Criminal Revision No. 176/2014 by the learned Additional Session Judge, Cachar, Silchar allowing the revision petition, by setting aside the order dated 09.06.2014 passed by the learned Additional Chief Judicial Magistrate, Cachar Silchar in N.I.Case No. 55/2015, (CR Case No. 55/2012), by which the present petitioners were discharged under Section 420 of the IPC. The further challenge is the order dated 20.10.2016 passed in the said NI Case No.55/2015, whereby, on remand, the learned Additional Chief Judicial Magistrate, Cachar Silchar, framed charges under Section 420 /34 of IPC against the present petitioners.

3. The brief facts leading to the filing of this present case in nutshell is to the following effect:

I. The respondent No.1 herein filed a complaint before the Court of the learned Chief Judicial Magistrate, Cachar, Silchar, alleging commission of an offence under Section 138 of N.I. Act and under Section 420 IPC. The complaint was registered as N.I. Case No. 55 of 2012, under section 138 N.I. Act, 1881 and Section 420 /34 of the INDIAN PENAL CODE and was transferred to the learned Additional Chief Judicial Magistrate, Cachar, for disposal.

II. On 9/7/2012, cognizance of offence under Section 138 Negotiable Instruments Act, 1881 was taken against accused/Petitioner No.1, and cognizance of offence u/s 420 IPC was taken against all the accused person.

III. Thereafter, by an order dated 9/6/2014 passed in N.I. Case No. 55/2012, the learned Trial Court (Addl. Chief Judicial Magistrate, Cachar) discharged the Accused/petitioners No. 2 & 3 from the offence u/s 420/34 IPC and proceeded against the accused/petitioner No.1 u/s 138 NI Act.

IV. Against the order dated 9/6/2014, the Complainant/Opposite party No.1 preferred a Revision petitioner registered as Crl. Revision No. 176/14 before the Session Judge, Cachar. By the impugned order dated 29/5/2015 passed in Crl. Revision No. 176/14, learned Additional Session Judge, Cachar allowed the revision by setting aside the order dated 9/6/2014 passed in N.I. Case No. 55/2012 (Annexure-3) and directed the learned trial court to consider the matter afresh, after considering all the evidence adduced by the complainant and after giving an opportunity of hearing to both the parties and to proceed with the case.

V. Thereafter, the learned Addl. Chief Judicial Magistrate, Cachar, by the impugned order dated 20/10/2016, passed in N.I. Case No. 55/2012 framed charges under Section 420 IPC against all 3 accused persons i.e. petitioner herein, and charge u/s 138 N.I. Act was framed separately against accused/petitioner No.1 Nizame Uddin Barbhuiya. Challenging both the orders i.e. order dated 29/5/2015 passed in Crl. Revision No. 176/14, learned Additional Session Judge, Cachar and order dated 20/10/2016 passed in N.I. Case No. 55 of 2012, the present petition is filed before this Court.

4. The learned counsel for the petitioner fundamentally argues the following:

I. Both the offences under Section 420 IPC and Section 138 of N.I. Act, 1881 are distinct and different offence, and same cannot be tried in the same trial. It is his contention that both are different in the procedure required to be followed for conducting the prosecution; standard of proof are also different, including the requirement of mens rea. In su