Proceedings under Section 138 of the Negotiable Instrument Act and the IPC are separate and can proceed simultaneously.

JUDGMENT

ORDER

Pushpendra Singh Bhati, J. - Petitioner has preferred this misc. petition under section 482 of Cr.P.C., 1973 for quashing the FIR No. 44/2015 (dated 10.03.2015) Police Station Khinwara (Pali) for the offence under Section 406, 420 IPC.

2. The factual matrix of the case is that the petitioner Ashu Parihar took a shop including house on rent from Mohan Lal and started business of readymade garments in the name of Supriya selection and agreement was signed by both the parties and they commenced with the business pertaining to the readymade garments. Meanwhile, the landlord Mohan Lal wanted the present petitioner to vacate the shop and house.

3. On 26.02.2015, complainant armed with weapons came and beat up the husband of the petitioner. They also outraged her modesty and abuse them by saying cast based remarks, the shop and house were forcefully vacated. The present petitioner filed a complaint before the Superintendent of Police on 28.02.2015 upon which a case was registered. Earlier, the petitioner while doing business with the complainant assured him that she shall do the business and in lieu of that gave certain cheques to the respondent, the goods was purchased and cheques were accordingly issued.

4. The complaint filed an FIR and simultaneously invoked proceedings under Section 138 of Negotiable Instrument Act. The non-petitioner''s FIR was that Ashu Parihar pretended to be the proprietor of Supriya Selection and produced certain goods on credit and when the payment was demanded, the cheques were issued to the complainant. The complainant was not informed that that the owner of the Supriya Selection was Supriya and not Ashu Parihar. On dis-honoring of cheques, appropriate action was taken by the complainant.

5. The contention of counsel for the petitioner is that the contents of the FIR were false and fabricated and at best it was a bad transaction between two parties doing business together and therefore, the maximum liability of the present petitioner was to be decided and determined in accordance with the specialized law for the purpose of default in the cheque i.e. under the Negotiable Instrument Act.

6. Counsel for the petitioner has also referred to the case law of Sharat Babu Digmurti vs. Government of NCT of Delhi, AIR 2017 Supreme Court 150, whereby the Hon''ble Apex Court has said that whenever there shall be a special law it shall be prevail over the general law and prior laws and thus, the petitioner was to be tried under the specialized law under the Negotiable Instrument Act and could not have been tried for the offence under theIPC.

7. Learned Public Prosecutor has however, submitted the precedent law in Sangeetaben Mahendrabhai Patel vs. State of Gujarat & Anr. Reported in (2012) 7 Supreme Court Cases 621, in which the Hon''ble Apex Court has said that plea of double Jeopardy for quashing the said proceedings under IPC on the ground that appellant had proceeded under section 138 of Negotiable Instrument Act was not tenable as the ingredients of the offence under Section 138 of Negotiable Instrument Act were entirely different from the offence under Section 420 IPC. Hon''ble Apex Court has further laid down in the same precedent law, the offence under the IPC have no legal presumption of antecedent law against the drawer of cheque and no fine can be imposed to meet a legally enforceable liability. Thus, the Hon''ble Apex Court in the aforementioned judgment deal with the plea of autrefois convict and double jeopardy and has held that proceeding with the petitioner under Section 138 of the Negotiable Instrument Act and under Section 406 and 420 IPC was permissible and did not amount to double jeopardy.

8. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that on the bare reading of the FIR, the offence is prima facie made out and it cannot be termed as a case where the FIR itself does not reflect the constitution of the offence. Once the offen