The prosecution under Section 420 of IPC after an acquittal in a case under Section 138 of the Negotiable Instruments Act does not constitute double jeopardy if the essential elements of the offences differ.

1 The petitioner is the sole accused in C.C. No. 21 of 2007 pending On the file of the Court of District Munsif-cum-Judicial Magistrate, Kodumudi and he is facing the prosecution for the alleged commission of the offences under Section 420, 467 , 468 and 401 of IPC. This criminal original petition is filed for quashment of the said proceedings.

2. The facts leading to the filing of this petition for quashment are as follows:

Originally, the respondent herein filed a case in C.C. No. 105 of 2002 on the file of the above said Court to prosecute the petitioner herein for the alleged commission of the offence under Section 138 of the Negotiable Instruments Act, alleging that the petitioner/accused borrowed a sum of Rs. 5,00,000/- from the respondent/complainant by executing a demand promissory note and on the demand made by the complainant, the petitioner/accused issued a cheque for a sum of Rs. 5,00,000/- dated 22.6.2002 drawn on State Bank of Minisal Branch towards part loan amount. The complainant presented the said cheque dated 22.6.2002 before the ICICI Bank, Kodumudi Branch and the same was returned with an endorsement “ insufficient funds ” . The complainant issued a statutory notice dated 16.7.2002 to the accused demanding the amount due and payable under the dishonoured cheque and the accused on receipt of the same, had sent a reply. Since the accused has failed to comply with the terms of the statutory notice, the complainant has filed the above said case.

3. During the pendency of the complaint in C.C. No. 105 of 2002, the respondent/complainant filed M.P. No. 2228 of 2003 for altering the Section from 138 of the Negotiable Instruments Act to Section 420 of IPC, stating that the bank official who was one of the witnesses examined, had deposed that the account in which the cheque was drawn and signed by the accused does not belong to him and since the act of the accused constitute the commission of the offence under Section 420 of IPC, the complainant prayed for alteration of the Section. The said application was dismissed on 20.4.2004 by the said Court, after contest.

4. Challenging the vires of the said order of dismissal, the complainant filed a revision in Crl. R.C. No. 1213 of 2004 before this Court and the same was admitted and notice was ordered to the respondent/accused who is the petitioner in this criminal original petition. However, the respondent/accused, has not chosen to enter appearance.

5. In the interregnum, C.C. No. 105 of 2002 filed by the respondent against the petitioner/accused under Section 138 of the Negotiable Instruments Act, has ended in acquittal. However, the dismissal of the said case was not brought to the knowledge of this Court at the time of disposal of Crl. R.C. No. 1213 of 2004.

6. This Court vide order dated 31.8.2006, made in Crl. R.C. No. 1213 of 2004, has set aside the order dated 20.4.2004 made in Crl. M.P. No. 2228 of 2003 in C.C. No. 105 of 2002 and held that prima facie case is made out against the accused to frame charge for the commission of the offence under Section 420 of the IPC, and citing the said reason, allowed the criminal revision. Thereafter, the respondent herein filed a case in C.C. No. 21 of 2007 against the petitioner/accused herein seeking his prosecution for the alleged commission of the offence under Section 420, 467 , 468 and 481 of IPC, which has been taken cognizance and summons were issued and seeking quashment of the said complaint, the present criminal original petition is filed by the accused.

7. The respondent herein has filed a counter stating that the act on the part of the accused in issuing a cheque knowing pretty well that he is not the holder of the account and the same would constitute the offence of cheating and allied offences and hence prayed for the dismissal of this Criminal Original Petition.

8. Heard the submissions of Mr. N. Manokaran, learned counsel appearing for the petitioner and Mr. B. Vijayakumar, learned counsel a