IMPORTANT POINT : Offences under Section 138 of NI Act and Section 420 of IPC are distinct from each other and principle of double jeopardy or rule of estoppel does not come into play.

JUDGMENT :

By this common judgment, the afore titled two petitions filed under Section 482 of the Code of Criminal Procedure are proposed to be disposed of.

2. Through the medium of CRM(M) No.280/2021, the petitioner has challenged the complaint filed by respondent against him for commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the NI Act) as also the proceedings emanating therefrom.

3. It appears that respondent/complainant had filed a complaint for commission of offence under Section 138 of NIA Act against the petitioner before the Court of Forest Magistrate, Srinagar (hereinafter referred to as the trial Magistrate). In the complaint, it was alleged that the petitioner had approached the respondent and offered to sell a patch of land measuring 01 kanal situated at Gangbugh Tehsil and District Budgam, pursuant to which the respondent/complainant advanced a sum of Rs.29.00 lacs as part payment. It was further averred in the complaint that the petitioner/accused had promised to provide the land in question within a week’s time, failing which he was to pay damages to the tune of Rs.10.00 lacs. It was further alleged that the petitioner/accused failed to provide the land within the stipulated time as per the agreed terms which made him liable to return the amount received by him along with the damages. According to the respondent/complainant, the petitioner/accused issued three cheque bearing Nos.0010168 for an amount of Rs.5.00 lacs, 000170 for an amount of Rs.5.00 lacs and 000171 for an amount of Rs.5.00 lacs all dated 20th March, 2021, drawn on HDFC Bank Ltd. Branch office Baghat Barzulla. The respondent/complainant presented these cheques before the concerned bank but the same were dishonoured with the endorsement “drawers account closed” vide memo dated 9th April, 2021.The respondent/complainant is stated to have served a demand notice upon the petitioner/accused by sending the same through registered post on 16th April, 2021 but in spite of having received the said notice, the petitioner/accused did not liquidate the amount of cheques to the respondent/complainant compelling him to file the impugned complaint before the trial Magistrate on 30.07.2021.

4. CRM(M) No.281/2021 arises out of a complaint filed by the respondent against the petitioner before the Court of Forest Magistrate, Srinagar, alleging commission of offence under Section 138 of the NI Act. As per the impugned complaint, the petitioner/accused had offered to sell a patch of land measuring 10 marlas situated at Gangbugh Tehsil and District Budgam, to respondent. Accordingly, the respondent is stated to have advanced a sum of Rs.14.00 lacs to the petitioner/accused and it was promised by him that the land in question would be handed over to the respondent/complainant within a period of one week failing which the petitioner/accused was to return the amount along with damages to the tune of Ra.10.00 lacs. It was alleged in the complaint that the petitioner/accused did not deliver the possession of the land to the respondent/complainant within the stipulated time whereafter he, in order to liquidate the debt, issued two cheques bearing Nos.00169 for an amount of Rs.5.00 lacs and 000172 for an amount of Rs.9.00 lacs both dated 20th March, 2021, drawn on HDFC Bank Branch unit Baghat, Barzulla. The cheques, when presented to the bank for encashment, were dishonoured by the banker with the endorsement “account closed” vide memo dated 9th April, 2021, and when petitioner/accused did not liquidate the amount of cheques despite receipt of statuotyr demand notice, the impugned complaint came to be filed by the respondent/complainant before the trial Magistrate on 30.07.2021.

5. It has been contended in both the petitions that the respondent/complainant Mushtaq Ahmad, prior to the filing of the aforesaid two complaints, filed an application before the Chief Judicial Magistrate, Budgam, and pursuant to order passed by the sa