A prosecution for distinct offences is not barred by double jeopardy after acquittal under Section 138 of the NI Act.

The petitioners challenged private complaints referred to the police under Section 156(3) of the Code of Criminal Procedure (CrPC), and the resulting proceedings, alleging that the complaints arose from business transactions involving dishonoured cheques.

The petitioners had been acquitted in prosecutions under Section 138 of the Negotiable Instruments Act, 1881, and argued that the later proceedings on the same facts amounted to double jeopardy.

They also contended that the complainant had not filed the affidavit contemplated in Priyanka Srivastava v. State of Uttar Pradesh.

The police had investigated and filed charge sheets, and the cases were pending before the trial court.

Whether the private complaints and resulting proceedings were barred as double jeopardy because the petitioners had been acquitted of offences under Section 138 of the Negotiable Instruments Act

Whether the referral of the complaints for investigation under Section 156(3) CrPC was invalid because the complainant had not filed an affidavit as discussed in Priyanka Srivastava

Section 156(3) CrPC permits a Magistrate to refer a complaint to the police for investigation.

In Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287, the Supreme Court addressed the filing of an affidavit with an application seeking such a referral, to ensure responsibility for allegations made.

An acquittal under Section 138 of the Negotiable Instruments Act does not, by itself, bar proceedings alleging a distinct and separate offence on the relevant facts.

The Court found that the charge-sheet material alleged a distinct and separate offence, so the acquittal under Section 138 did not make the pending proceedings double jeopardy.

On the affidavit objection, it noted that the Magistrate had referred the complaints to the police under Section 156(3) CrPC and treated the affidavit requirement as serving to make the complainant more responsible for the complaint.

It further observed that the complainant could be held responsible for malicious prosecution if the petitioners succeeded in the pending cases.

The Court considered that the petitioners could pursue discharge or raise their defences before the trial court.

It left the petitioners’ available defences open, including the right to seek discharge by an appropriate application before the trial court.