Initiation of proceedings under Section 420 I. P. C. when proceedings are pending for offence under Section 138, N. I. Act would not amount to double jeopardy.

This revision is filed by the petitioners challenging the order of dismissal of the discharge petition filed by them, by the learned Judicial Magistrate No.I, Namakkal, in Crl.M.P.3166 of 2005, dated 1. 2006.

2. The petitioners have been arrayed as A-3 to A-5. The sum and substance of the allegation levelled against them is that prior to the month of April 2001, A-1 to A-5 committed criminal conspiracy by agreeing to do an illegal act of cheating the public by falsely informing them to form an organisation in the name of J.T.P.R.O. (Jai Thamodhaya Public Relation Organisation) to conduct a small scale industries for a Japan company for which job opportunity to be offered to the persons who were able to appoint organisers by sponsoring 100 members each with collection of a sum of Rs.100/- per member apart from Rs.3000/-a contribution with an intention to cheat the public and collect huge amount from them. Therefore, they have been charged for the alleged offence under Sections 120-B, 420 and 420 r/w.34 IPC.

3. It is also mentioned in the complaint as well as in the charge-sheet that A3 issued a post-dated cheque, dated 4. 2002, in favour of the de-facto complaint to the extent of Rs.3,88,500/- and the same was dishonored on the ground of insufficient fund.

4. The petitioners have filed discharge petition, raising the ground that the first petitioner/A3 has issued a cheque to one of the witnesses and on that basis, and on the return of the cheque on the ground of insufficient fund, a case was also filed before the Judicial Magistrate, No.I, Namakkal, in C.C.No.5 of 2003, and the first petitioner was discharged from the above case, on 30.1.2004. It is contended in the discharge petition that the only remedy available for the complainant is to file a complaint under Section 138 of Negotiable Instruments Act and as a matter of fact, the complaint has also been filed under Section 138 of Negotiable Instruments Act and the same is pending before the Judicial Magistrate Court. Therefore, it is contended by the learned counsel for the petitioners that filing a case for the offence of cheating would amount to double jeopardy.

5. Mr.R.Rajan, the learned counsel for the petitioners, vehemently contended that the informant has already initiated proceedings under Section 138 of the Negotiable Instruments Act and as such, he is not entitled to initiate another proceeding for the offence of cheating, as the same would amount to double jeopardy. It is also submitted by the learned counsel for the petitioners that only with a view to humiliate and harass the petitioner, the informant resorted to initiate proceedings for the offence of cheating.

6. The learned Additional Public Prosecutor, on the other hand, contended that the learned Magistrate rightly dismissed the petition filed by the petitioner for discharge. It is contended by the learned Additional Public Prosecutor that the complaint as well as the materials available on record clearly constitutes the offence under Section 420 r/w 34 I.P.C. and there are enough materials available on record to implicate the petitioners herein and there is absolutely no ground made out for discharge of the petitioners. The contention raised by the learned counsel for the petitioners is unacceptable as the proceedings initiated against the petitioners on the basis of the complaint of the de-facto complainant for the offence under Section 420 I.P.C. is very much maintainable in spite of the fact that already the de-facto complainant has initiated proceedings under Section 138 of the Negotiable Instruments Act and the same would not amount to double jeopardy as the ingredients of the offence of cheating is made out on the basis of the complaint.

7. I have carefully considered the rival submissions put forth by the either side and also perused the entire materials available on record, including the complaint and the charge-sheet and other respective records.

8. The only contention raised in