Industrial Manufactures v. Nazma Crockery House) under Section

Learned counsel for the applicant submitted that offence is of compoundable nature and applicant is willing to move application for compounding of the offence. Learned counsel further submitted that he is confining his prayer only to the extent that as offence is compoundable, direction be issued to the trial court to act as per guidelines in the case of Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663. Considering the submission and prayer of the applicant, no purpose will be served in issuing notice to opposite party no.2. The matter can be disposed of at this stage with a proper direction in the light of Damodar S. Prabhu case (Supra). In Damodar S. Prabhu case, the hon'ble Supreme Court has given the following guidelines: "(i) In the circumstances, it is proposed as follows: (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for the compounding with the Legal Services Authority, or such authority as the court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before this Supreme Court, the figure would increase to 20% of the cheque amount." Hence direction is issued that if any application is moved by the applicant for compounding, the same shall be disposed of by the trial court in accordance with the aforesaid guidelines. Accordingly, this criminal misc. application filed U/s 482 Cr.P.C. stands disposed of in the aforesaid terms."

5. An application also came to be preferred by the opposite party No. 2 for expeditious disposal of the complaint in complaint case No. 520 of 2020, Application U/S 483 No. 1869 of 2024, in which on 23.10.2024, the following orders have been passed: "Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. This application under Section 483 Cr.P.C. has been filed to expedite the Complaint Case No. 520 of 2020 786 Industries Versus Nazma Crockery, under Section 138 N.I. Act, Police Station-Khurja Nagar, District- Bulandshahar, pending in the Court of Additional Chief Judicial Magistrate, Khurja Nagar, District-Bulandshahar. Expeditious disposal of a case is the right of every litigant and it is expected from every Court to endeavour to dispose of a case pending before it, expeditiously. Learned A.G.A. for the State has no objection in this regard. Considering the facts and circumstances of the case and submission made by learned counsel for the applicant, it is expedient to direct the court concerned to make its endeavour to decide the aforesaid case in spirit of provisions of Section 143(3) of Negotiable Instruments Act as expeditiously as possible, without granting any unnecessary adjournments to either of the parties, in accordance with law, if there is no other legal impediment. With the aforesaid directions, the application is disposed of."

6. It is also the case of the applicant that the first information report was also lodged by the opposite party No. 2 against the applicant under Section 406 and 420 of the IPC being FIR No. 1137 on 22.11.2020 with respect to the commission of the offences under Section 420 and 406 of IPC, pursuant whereto a post dishonouring of the cheque whereby the cheque was issued for making the payment dues which was payable by the applicant to the opposite party no. 2.

7. Questioning the same, the applicant preferred Application U/S 482 No. 23679 of 2024, in which the following orders have been passed on 25.07.2024: "Sri Sunil Kumar Dwivedi, learned counsel for the applicant and learned A.G.A. for the State are present. The present application u/s 482 Cr.P.C. has been filed with prayer to quash the entire proceedings of Case No. 47 of 2024, under Sections 406, 420 of I.P.C., P.S. Khurja Nagar, District Bulandshahar, as well as cognizance/summoning order dated 20.1.2024, pending in the Court of A.C.J.M., Khurja, Bulandshahar. Learned counsel for the applicant submitted that impugned First Information Report dated 22.11.2020 has been lodged on the basis of false and frivolous allegations with ulterior motive and only to harass the applicant. It is further submitted that as per the allegations of F.I.R., there are business transactions between the parties and one cheque alleged to have been dishonoured. In this regard, one complaint under Section 138 of N.I. Act is pending between the parties. First informant converted the civil dispute into a criminal case. Prima facie, Matter requires consideration. Notice on behalf of respondent no. 1 has been accepted by learned A.G.A. Issue notice to respondent no. 2 through C.J.M. concerned, returnable at an early date. Learned A.G.A. as well as respondent no. 2 may file their counter affidavits within three weeks. Rejoinder affidavit may thereafter be filed within one week. List this case after eight weeks. Until further orders, further proceedings of Case No. 47 of 2024, under Sections 406, 420 of I.P.C., P.S. Khurja Nagar, District Bulandshahar, pending in the Court of A.C.J.M., Khurja, Bulandshahar, shall remain stayed against the applicant."

8. An application came to be preferred by the applicant forestalling in the proceedings under Section 138 of the N.I. Act on the premise that already a proceeding in the State case had been stayed in Application 482 No. 23679 of 2024 on 25.07.2024. The said application came to be rejected on 27.02.2025 by the A.C.J.M, Khurja, bulandshahar.

9. Assailing the order dated 27.02.2025 rejecting the application for forestalling the proceedings in the complaint case no. 2494 of 2024 (786 Industrial Manufactures Vs. Nazma Crockery House) under Section 138 of N.I. Act, the present application has been filed.

10. Learned counsel for the applicant has submitted that the order dated 27.02.2025 rejecting the application for staying the proceedings under Section 138 of the N.I. Act cannot be sustained for the simple reason that simultaneously, two proceedings; one in a State case and other in a complaint case under Section 138 N.I. Act cannot be proceeded with. Submission is that though the complaint under Section 138 of the N.I. Act came to be lodged by the opposite party No. 2 on 20/21.10.2020 with respect to dishonouring of the cheque but thereafter the opposite party No. 2 had lodged a first information report bearing No. 11137 of 2020 on

22.11.2020 under Section 406 and 420 IPC with respect to the same allegations regarding dishonoring of the cheque and once the said proceedings came to be stayed in Application U/S 482 No. 23679 of 2024 on 25.07.2024 then obviously the proceedings under Section 138 of the N.I. Act cannot be proceeded with.

11. Learned AGA on the other hand submits that the subject matter of the FIR under Sections 406 and 420 IPC and proceedings under Section 138 of the N.I. Act are different and distinct as in the FIR, offences under Section 406 and 420 IPC have been alleged to have been committed but in the complaint case under Section 138 of the N.I. Act with respect to dishonoring of the cheque, offences under Section 138 of the N.I. Act have been alleged. He submits that both the proceedings can continue as there is no legal bar.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. Apparently, proceedings under Section 138 of the N.I. Act came to be preferred by the opposite party No. 2 regarding dishonoring of the cheque pursuant whereto the applicant came to be summoned under Section 138 of the N.I. Act and questioning the summoning order, the applicant had preferred application U/S 482 No. 5359 of 2022, in which on the request of the applicant, the matter was directed for being referred for compounding under Section 147 of the N.I. Act. With respect to the first information report is concerned, under Section 406 and 420 IPC lodged by the opposite party No. 2 is concerned, the applicant has obtained a stay order in Application U/S 482 No. 23679 of 2024, on 25.07.2024 on the premise that already proceedings under Section 138 of the N.I. Act have been initiated. Once the position being so, the applicant cannot insist this Court to invoke the jurisdiction to forestall the proceedings under Section 138 of the N.I. Act as law never contemplates such a situation wherein even according to the case of the applicant neither of the proceedings can be drawn. Even otherwise, the applicant cannot appropriate and de-appropriate at the same time, particularly, when in the FIR under Section 406 and 420 IPC, the stay is being obtained on the premise that proceedings under Section 138 of the N.I. Act is already going on.

14. Even otherwise, it is always open for the applicant even the Hon'ble Apex Court in in T.S. Baliah v. T.S. Rangachari; AIR 1969 Supreme Court 701 had the occasion to consider, wherein para 6 reads as under: "We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under Section 177, Indian Penal Code and Section 52 of the 1922 Act at he same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct Section 26 of the General Clauses Act states: "26. Provision as to offences punishable under two or more enactments,- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."

15. In State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others; AIR 2018 Supreme Court 5348, the Hon'ble Apex Court held as under: "7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under cither or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws, An act or an omission can amount to and constitute an offence under the IPC and at the same time, an oficnce under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897which reads as follows; "Provisions as to ofences punishable under two or more enactments ? Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

16. Looking into the case from the four corners of law as well as the nature of the allegations, this Court is not found the present case is to be fit case for interference. Accordingly, the interference is declined, the application is rejected. Order Date :- 11.7.2025 A. Prajapati

Learned counsel for the applicant submitted that offence is of compoundable nature and applicant is willing to move application for compounding of the offence. Learned counsel further submitted that he is confining his prayer only to the extent that as offence is compoundable, direction be issued to the trial court to act as per guidelines in the case of Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663. Considering the submission and prayer of the applicant, no purpose will be served in issuing notice to opposite party no.2. The matter can be disposed of at this stage with a proper direction in the light of Damodar S. Prabhu case (Supra). In Damodar S. Prabhu case, the hon'ble Supreme Court has given the following guidelines: "(i) In the circumstances, it is proposed as follows: (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for the compounding with the Legal Services Authority, or such authority as the court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before this Supreme Court, the figure would increase to 20% of the cheque amount." Hence direction is issued that if any application is moved by the applicant for compounding, the same shall be disposed of by the trial court in accordance with the aforesaid guidelines. Accordingly, this criminal misc. application filed U/s 482 Cr.P.C. stands disposed of in the aforesaid terms."

5. An application also came to be preferred by the opposite party No. 2 for expeditious disposal of the complaint in complaint case No. 520 of 2020, Application U/S 483 No. 1869 of 2024, in which on 23.10.2024, the following orders have been passed: "Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. This application under Section 483 Cr.P.C. has been filed to expedite the Complaint Case No. 520 of 2020 786 Industries Versus Nazma Crockery, under Section 138 N.I. Act, Police Station-Khurja Nagar, District- Bulandshahar, pending in the Court of Additional Chief Judicial Magistrate, Khurja Nagar, District-Bulandshahar. Expeditious disposal of a case is the right of every litigant and it is expected from every Court to endeavour to dispose of a case pending before it, expeditiously. Learned A.G.A. for the State has no objection in this regard. Considering the facts and circumstances of the case and submission made by learned counsel for the applicant, it is expedient to direct the court concerned to make its endeavour to decide the aforesaid case in spirit of provisions of Section 143(3) of Negotiable Instruments Act as expeditiously as possible, without granting any unnecessary adjournments to either of the parties, in accordance with law, if there is no other legal impediment. With the aforesaid directions, the application is disposed of."

6. It is also the case of the applicant that the first information report was also lodged by the opposite party No. 2 against the applicant under Section 406 and 420 of the IPC being FIR No. 1137 on 22.11.2020 with respect to the commission of the offences under Section 420 and 406 of IPC, pursuant whereto a post dishonouring of the cheque whereby the cheque was issued for making the payment dues which was payable by the applicant to the opposite party no. 2.

7. Questioning the same, the applicant preferred Application U/S 482 No. 23679 of 2024, in which the following orders have been passed on 25.07.2024: "Sri Sunil Kumar Dwivedi, learned counsel for the applicant and learned A.G.A. for the State are present. The present application u/s 482 Cr.P.C. has been filed with prayer to quash the entire proceedings of Case No. 47 of 2024, under Sections 406, 420 of I.P.C., P.S. Khurja Nagar, District Bulandshahar, as well as cognizance/summoning order dated 20.1.2024, pending in the Court of A.C.J.M., Khurja, Bulandshahar. Learned counsel for the applicant submitted that impugned First Information Report dated 22.11.2020 has been lodged on the basis of false and frivolous allegations with ulterior motive and only to harass the applicant. It is further submitted that as per the allegations of F.I.R., there are business transactions between the parties and one cheque alleged to have been dishonoured. In this regard, one complaint under Section 138 of N.I. Act is pending between the parties. First informant converted the civil dispute into a criminal case. Prima facie, Matter requires consideration. Notice on behalf of respondent no. 1 has been accepted by learned A.G.A. Issue notice to respondent no. 2 through C.J.M. concerned, returnable at an early date. Learned A.G.A. as well as respondent no. 2 may file their counter affidavits within three weeks. Rejoinder affidavit may thereafter be filed within one week. List this case after eight weeks. Until further orders, further proceedings of Case No. 47 of 2024, under Sections 406, 420 of I.P.C., P.S. Khurja Nagar, District Bulandshahar, pending in the Court of A.C.J.M., Khurja, Bulandshahar, shall remain stayed against the applicant."

8. An application came to be preferred by the applicant forestalling in the proceedings under Section 138 of the N.I. Act on the premise that already a proceeding in the State case had been stayed in Application 482 No. 23679 of 2024 on 25.07.2024. The said application came to be rejected on 27.02.2025 by the A.C.J.M, Khurja, bulandshahar.

9. Assailing the order dated 27.02.2025 rejecting the application for forestalling the proceedings in the complaint case no. 2494 of 2024 (786 Industrial Manufactures Vs. Nazma Crockery House) under Section 138 of N.I. Act, the present application has been filed.

10. Learned counsel for the applicant has submitted that the order dated 27.02.2025 rejecting the application for staying the proceedings under Section 138 of the N.I. Act cannot be sustained for the simple reason that simultaneously, two proceedings; one in a State case and other in a complaint case under Section 138 N.I. Act cannot be proceeded with. Submission is that though the complaint under Section 138 of the N.I. Act came to be lodged by the opposite party No. 2 on 20/21.10.2020 with respect to dishonouring of the cheque but thereafter the opposite party No. 2 had lodged a first information report bearing No. 11137 of 2020 on

22.11.2020 under Section 406 and 420 IPC with respect to the same allegations regarding dishonoring of the cheque and once the said proceedings came to be stayed in Application U/S 482 No. 23679 of 2024 on 25.07.2024 then obviously the proceedings under Section 138 of the N.I. Act cannot be proceeded with.

11. Learned AGA on the other hand submits that the subject matter of the FIR under Sections 406 and 420 IPC and proceedings under Section 138 of the N.I. Act are different and distinct as in the FIR, offences under Section 406 and 420 IPC have been alleged to have been committed but in the complaint case under Section 138 of the N.I. Act with respect to dishonoring of the cheque, offences under Section 138 of the N.I. Act have been alleged. He submits that both the proceedings can continue as there is no legal bar.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. Apparently, proceedings under Section 138 of the N.I. Act came to be preferred by the opposite party No. 2 regarding dishonoring of the cheque pursuant whereto the applicant came to be summoned under Section 138 of the N.I. Act and questioning the summoning order, the applicant had preferred application U/S 482 No. 5359 of 2022, in which on the request of the applicant, the matter was directed for being referred for compounding under Section 147 of the N.I. Act. With respect to the first information report is concerned, under Section 406 and 420 IPC lodged by the opposite party No. 2 is concerned, the applicant has obtained a stay order in Application U/S 482 No. 23679 of 2024, on 25.07.2024 on the premise that already proceedings under Section 138 of the N.I. Act have been initiated. Once the position being so, the applicant cannot insist this Court to invoke the jurisdiction to forestall the proceedings under Section 138 of the N.I. Act as law never contemplates such a situation wherein even according to the case of the applicant neither of the proceedings can be drawn. Even otherwise, the applicant cannot appropriate and de-appropriate at the same time, particularly, when in the FIR under Section 406 and 420 IPC, the stay is being obtained on the premise that proceedings under Section 138 of the N.I. Act is already going on.

14. Even otherwise, it is always open for the applicant even the Hon'ble Apex Court in in T.S. Baliah v. T.S. Rangachari; AIR 1969 Supreme Court 701 had the occasion to consider, wherein para 6 reads as under: "We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under Section 177, Indian Penal Code and Section 52 of the 1922 Act at he same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct Section 26 of the General Clauses Act states: "26. Provision as to offences punishable under two or more enactments,- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."

15. In State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others; AIR 2018 Supreme Court 5348, the Hon'ble Apex Court held as under: "7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under cither or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws, An act or an omission can amount to and constitute an offence under the IPC and at the same time, an oficnce under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897which reads as follows; "Provisions as to ofences punishable under two or more enactments ? Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

16. Looking into the case from the four corners of law as well as the nature of the allegations, this Court is not found the present case is to be fit case for interference. Accordingly, the interference is declined, the application is rejected. Order Date :- 11.7.2025 A. Prajapati