The main legal point established in the judgment is the distinction between the ingredients of offences under different statutes and the inapplicability of the plea of Double Jeopardy in this case.

JUDGMENT :

1. Shri Anil Kumar Mishra and Shri F. A. Shah, learned counsel for petitioners. Shri Kuldeep Singh, learned Public Prosecutor for respondent No. 1-State. Shri Anil Sharma, learned counsel for respondent No. 2- complainant.

2. Heard on admission. The present petition under section 482 of Criminal Procedure Code is being preferred by the petitioners for quashment of FIR registered at Police Station Jhansi Road, Gwalior vide Crime No. 321/2018 for the offence under sections 420, 406, 506, 120-B of Indian Penal Code and the investigation proceeded on the basis of registration of FIR.

3. Precisely stated facts of the case (and prosecution story) are that a written application was submitted by respondent No. 2/ complainant on 4-8-2018 at Police Station Jhansi Road, Gwalior with the allegations that he lent some amount by way of hundi transaction to petitioner No. 1 under the knowledge of petitioner No. 2, part of which was repaid by the petitioners and as of now Rs. 41,50,000/- is to be paid by the petitioner No. 1.

4. Since petitioner No. 1 started dilly dallying the matter and was not prompt in repayment therefore, social involvement was sought by respondent No. 2 resulted into issuance of cheque for payment of Rs. 28,00,000/-, which got dishonoured for which private complaint under section 138 of Negotiable Instrument Act, 1881 (for short “NI Act”) has been filed at the instance of respondent No. 2. Now for remaining amount, respondent No. 2 tried to persuade the petitioners by way of oral request as well as issuance of legal notice dated 10-2-2018 as well as 22-5-2018 but to no avail therefore, police complaint was filed on which FIR has been registered.

5. According to counsel appearing for the petitioners, once respondent No. 2 has resorted to proceeding under section 138 of Negotiable Instruments Act then following the principle of Double Jeopardy as enshrined under Article 20(2) of the Constitution of India as well as under section 300 of Criminal Procedure Code, petitioners cannot be tried for the same offence or default for which they are already tried. It is further submitted that section 31 of Reserve Bank of India Act bars the hundi transaction therefore, any transaction which is void ab initio, cannot be asserted by way of prosecution. Learned counsel also refers the judgment rendered by the Hon’ble Apex Court in the case of Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 and submits that all the offences of the FIR are of such nature where maximum punishment can be of seven years and below therefore, it is not required for the police to arrest the petitioners and petitioners can be interrogated without being arrested.

6. Learned counsel for the petitioners also inform that the anticipatory bail under section 438 of Criminal Procedure Code filed at the instance of petitioner No. 2 got rejected by the trial Court but the same has not been preferred before the High Court and petitioner No. 1 has not preferred any anticipatory bail. He prayed for quashment of FIR. Petitioners relied upon the judgments of the Hon’ble Apex Court in the case of G. Sagar Suri and another vs. State of U.P. and others, 2000 (2) SCC 636 and Kola Veera Raghav Rao vs. Gorantla Venkateswara Rao and anr., (2011) 2 SCC 703 while asserting for quashment of FIR.

7. Per contra, learned counsel for the respondents/ State opposed the prayer made by the petitioners and on the basis of case diary submits that the investigation is at initial stage.

8. Learned counsel for the private respondent try to match the vehemence of the petitioners and submits that it is too early for the petitioners to approach this Court under section 482 of Criminal Procedure Code specially when anticipatory bail of petitioner No. 2 was rejected on 8-8-2018 therefore, petitioners instead of availing the remedy under section 438 of Criminal Procedure Code are trying to assert by way of section 482 of Criminal Procedure Code It is further submitted that scope of Negotiable Instr