REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 645 of 2012
Sangeetaben Mahendrabhai Patel …Appellant
Versus
State of Gujarat & Anr.
…Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 18.8.2011 passed by the High Court of Gujarat at
Ahmedabad in Criminal Misc. Application No. 7807 of 2006, by which the
High Court has dismissed the application filed by the present appellant
under Section 482 of Criminal Procedure Code, 1973 (hereinafter
referred as `Cr.P.C.’) for quashing the I.CR No. 18 of 2004 and
Criminal Case No. 5 of 2004 pending before the Chief Judicial
Magistrate, Patan, on the plea of double jeopardy for the reason that
the appellant has already been tried and dealt with under the
provisions of Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred as `N.I. Act’) for the same offence.
2. Facts and circumstances giving rise to this appeal are that:
A. Respondent No. 2 filed a complaint dated 22.10.2003 i.e.
Criminal Case No. 1334 of 2003 under Section 138 of N.I. Act on the
ground that the appellant had taken hypothecation loan of Rs. 20 lakhs
and had not repaid the same. In order to meet the said liability, the
appellant issued cheque bearing no. 59447 and on being presented, the
cheque has been dishonoured.
B. Subsequent thereto on 6.2.2004, the respondent no. 2 filed an
FIR being I.C.R. No. 18 of 2004 under Sections 406/420 read with
Section 114 of Indian Penal Code, 1860 (hereinafter referred as `IPC’)
with the Sidhpur Police Station for committing the offence of criminal
breach of trust, cheating and abetment etc.
C. In the criminal case No.1334 of 2003 filed under Section 138 of
N.I. Act, the trial court convicted the appellant. Aggrieved,
appellant preferred Appeal No. 12 of 2006, before the District Judge
wherein, he has been acquitted. Against the order of acquittal,
respondent no. 2 has preferred Criminal Appeal No. 1997 of 2008 before
the High Court of Gujarat which is still pending consideration.
D. Appellant filed an application under Section 482 Cr.P.C.,
seeking quashing of ICR No. 18 of 2004 and Criminal Case No. 5 of 2004,
pending before the Chief Judicial Magistrate, Patan, on the grounds,
inter-alia, that it amounts to abuse of process of law. The appellant
stood acquitted in criminal case under Section 138 of N.I. Act. Thus,
he cannot be tried again for the same offence. In the facts of the
case, doctrine of double jeopardy is attracted. The High Court
dismissed the said application.
Hence, this appeal.
3. Shri Abhishek Singh, learned counsel appearing for the
appellant, has submitted that the ICR as well as the criminal case
pending before the Chief Judicial Magistrate, Patan, is barred by the
provisions of Section 300 Cr.P.C. and Section 26 of the General Clauses
Act, 1897 (hereinafter called ‘General Clauses Act’) as the appellant
has already been dealt with/tried under Section 138 of N.I. Act for the
same offence. Thus, the High Court committed an error in not quashing
the said ICR and the criminal case. It amounts to double jeopardy and,
therefore, the appeal deserves to be allowed.
4. On the contrary, Shri Rakesh Upadhyay, learned counsel
appearing for the respondent no. 2 and Mr. S. Panda, learned counsel
appearing for the State of Gujarat, have vehemently opposed the appeal
contending that the provisions of Section 300 Cr.P.C. i.e. `Doctrine of
Double Jeopardy’ are not attracted in the facts and circumstances of
the case, for the reason, that the ingredients of the offences under
Sections 406/420 read with Section 114 IPC are entirely distinct from
the case under Section 138 of N.I. Act, and therefore, do not
constitute the same offence. The appeal is devoid of any merit and
liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
The sole issue raised in this appeal is regarding the scope and
application of doctrine of double jeopardy. The rule against double
jeopardy provides foundation for the pleas of autrefois acquit and
autrefois convict. The manifestation of this rule is to be found
contained in Section 300 Cr.P.C; Section 26 of the General Clauses Act;
and Section 71 I.P.C.
Section 300(1) Cr.P.C. reads:
“A person who has once been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence,
nor on the same facts for any other offence for which a
different charge from the one made against him might have been
made under sub-section (1) of Section 221, or for which he
might have been convicted under sub-section (2) thereof.”
Section 26 of the General Clauses Act, 1897 reads:
“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.”
Section 71 of I.P.C. reads:
1 “Limit of punishment of offence made up of several offences. - Where
anything which is an offence is made up of parts, any of which
parts is itself an offence, the offender shall not be punished
with the punishment of more than one of such his offences,
unless it be so expressly provided.
…………………………..”
?6. In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, the
Constitution Bench of this Court dealt with the issue wherein the
central issue arose in the context of the fact that a person who had
arrived at an Indian airport from abroad on being searched was found in
possession of gold in contravention of the relevant notification,
prohibiting the import of gold. Action was taken against him by the
customs authorities and the gold seized from his possession was
confiscated. Later on, a prosecution was launched against him in the
criminal court at Bombay charging him with having committed the offence
under Section 8 of the Foreign Exchange Regulation Act, 1947
(hereinafter called `FERA’) read with the relevant notification. In the
background of these facts, the plea of “autrefois acquit” was raised
seeking protection under Article 20(2) of the Constitution of India,
1950 (hereinafter called the ‘Constitution’). This court held that the
fundamental right which is guaranteed under Article 20 (2) enunciates
the principle of “autrefois convict" or "double jeopardy" i.e. a person
must not be put in peril twice for the same offence. The doctrine is
based on the ancient maxim "nemo debet bis punire pro uno delicto",
that is to say that no one ought to be twice punished for one offence.
The plea of “autrefois convict” or "autrefois acquit" avers that the
person has been previously convicted or acquitted on a charge for the
same offence as that in respect of which he is arraigned. The test is
whether the former offence and the offence now charged have the same
ingredients in the sense that the facts constituting the one are
sufficient to justify a conviction of the other and not that the facts
relied on by the prosecution are the same in the two trials. A plea of
"autrefois acquit" is not proved unless it is shown that the verdict of
acquittal of the previous charge necessarily involves an acquittal of
the latter.
7. The Constitution Bench of this Court in S.A.Venkataraman v.
Union of India & Anr., AIR 1954 SC 375, explained the scope of
doctrine of double jeopardy, observing that in order to attract the
provisions of Article 20 (2) of the Constitution, there must have been
both prosecution and punishment in respect of the same offence. The
words ‘prosecuted’ and ‘punished’ are to be taken not distributively so
as to mean prosecuted or punished. Both the factors must co-exist in
order that the operation of the clause may be attractive.
8. In Om Prakash Gupta v. State of U.P., AIR 1957 SC 458; and
State of Madhya Pradesh v. Veereshwar Rao Agnihotri, AIR 1957 SC 592,
this Court has held that prosecution and conviction or acquittal under
Section 409 IPC do not debar trial of the accused on a charge under
Section 5(2) of the Prevention of Corruption Act, 1947 because the two
offences are not identical in sense, import and content.
9. In Leo Roy Frey v. Superintendent, District Jail, Amritsar &
Anr., AIR 1958 SC 119, proceedings were taken against certain persons
in the first instance before the Customs Authorities under Section
167(8) of the Sea Customs Act and heavy personal penalties were imposed
on them. Thereafter, they were charged for an offence under Section 120-
B IPC. This Court held that an offence under Section 120-B is not the
same offence as that under the Sea Customs Act:
“The offence of a conspiracy to commit a crime is a different
offence from the crime that is the object of the conspiracy
because the conspiracy precedes the commission of the crime and
is complete before the crime is attempted or completed, equally
the crime attempted or completed does not require the element
of conspiracy as one of its ingredients. They are, therefore,
quite separate offences.”
(Emphasis
added)
10. In The State of Bombay v. S.L. Apte and Anr. AIR 1961 SC 578,
the Constitution Bench of this Court while dealing with the issue of
double jeopardy under Article 20(2), held:
“To operate as a bar the second prosecution and the
consequential punishment thereunder, must be for “the same
offence”. The crucial requirement therefore for attracting the
Article is that the offences are the same i.e. they should be
identical. If, however, the two offences are distinct, then
notwithstanding that the allegations of facts in the two
complaints might be substantially similar, the benefit of the
ban cannot be invoked. It is, therefore, necessary to analyse
and compare not the allegations in the two complaints but the
ingredients of the two offences and see whether their identity
is made out.
xx xx xx xx xx xx
xx
The next point to be considered is as regards the scope of
Section 26 of the General Clauses Act. Though Section 26 in its
opening words refers to “the act or omission constituting an
offence under two or more enactments”, the emphasis is not on
the facts alleged in the two complaints but rather on the
ingredients which constitute the two offences with which a
person is charged. This is made clear by the concluding portion
of the section which refers to “shall not be liable to be
punished twice for the same offence”. If the offences are not
the same but are distinct, the ban imposed by this provision
also cannot be invoked.” (Emphasis added)
11. In Roshan Lal & Ors. v. State of Punjab, AIR 1965 SC 1413, the
accused had caused disappearance of the evidence of two offences under
sections 330 and 348 IPC and, therefore, he was alleged to have
committed two separate offences under section 201 IPC. It was held
that neither section 71 IPC nor section 26 of the General Clauses Act
came to the rescue of the accused and the accused was liable to be
convicted for two sets of offences under section 201 IPC, though it
would be appropriate not to pass two separate sentences.
A similar view has been reiterated by this Court in Kharkan &
Ors. v. State of U.P., AIR 1965 SC 83.
12. In Bhagwan Swarup Lal Bishan Lal v. The State of Maharashtra,
AIR 1965 SC 682, while dealing with the issue, held:
“The previous case in which this accused was convicted was in
regard to a conspiracy to commit criminal breach of trust in
respect of the funds of the Jupiter and that case was finally
disposed of by this Court in Sardul Singh Caveeshar v. State of
Bombay, AIR 1957 SC 747. Therein it was found that Caveeshar
was a party to the conspiracy and also a party to the
fraudulent transactions entered into by the Jupiter in his
favour. The present case relates to a different conspiracy
altogether. The conspiracy in question was to lift the funds of
the Empire, though its object was to cover up the fraud
committed in respect of the Jupiter. Therefore, it may be that
the defalcations made in Jupiter may afford a motive for the
new conspiracy, but the two offences are distinct ones. Some
accused may be common to both of them, some of the facts proved
to establish the Jupiter conspiracy may also have to be proved
to support the motive for the second conspiracy. The question
is whether that in itself would be sufficient to make the two
conspiracies the one and the same offence….
The two conspiracies are distinct offences. It cannot even
be said that some of the ingredients of both the conspiracies
are the same. The facts constituting the Jupiter conspiracy are
not the ingredients of the offence of the Empire conspiracy,
but only afford a motive for the latter offence. Motive is not
an ingredient of an offence. The proof of motive helps a court
in coming to a correct conclusion when there is no direct
evidence. Where there is direct evidence for implicating an
accused in an offence, the absence of proof of motive is not
material. The ingredients of both the offences are totally
different and they do not form the same offence within the
meaning of Article 20(2) of the Constitution and, therefore,
that Article has no relevance to the present case.”
(Emphasis added)
13. In The State of A.P. v. Kokkiligada Meeraiah & Anr., AIR 1970
SC 771, this Court while having regard to Section 403 Cr.P.C., 1898,
held:
“The following important rules emerge from the terms of Section
403 of the Code of Criminal Procedure:
(1) An order of conviction or acquittal in respect of any
offence constituted by any act against or in favour of a person
does not prohibit a trial for any other offence constituted by
the same act which he may have committed, if the court trying
the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences
are committed for which separate charges could have been made,
but if a person is tried in respect of some of those charges,
and not all, and is acquitted or convicted, he may be tried for
any distinct offence for which at the former trial a separate
charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted
by any act, and that act together with the consequences which
resulted therefrom constituted a different offence, he may
again be tried for that different offence arising out of the
consequences, if the consequences had not happened or were not
known to the court to have happened, at the time when he was
convicted.
(4) A person who has once been tried by a Court of
competent jurisdiction for an offence and has been either
convicted or acquitted shall not be tried for the same offence
or for any other offence arising out of the same facts, for
which a different charge from the one made against him might
have been made or for which he might have been convicted under
the Code of Criminal Procedure.” (Emphasis added)
14. The Constitution Bench of this Court in The Assistant Collector
of the Customs, Bombay & Anr. v. L. R. Melwani & Anr. AIR 1970 SC 962,
repelled the contention of the respondents therein that their criminal
prosecution for alleged smuggling was barred because proceedings were
earlier instituted against them before Collector of Customs. It was
observed that neither the adjudication before the Collector of Customs
was a prosecution, nor the Collector of Customs was a Court. Therefore,
neither the rule of autrefois acquit can be invoked, nor the issue
estoppel rule was attracted. The issue estoppel rule is a facet of
doctrine of autrefois acquit.
15. This Court has time and again explained the principle of issue
estoppel in a criminal trial observing that where an issue of fact has
been tried by a competent court on an earlier occasion and a finding
has been recorded in favour of the accused, such a finding would
constitute an estoppel or res judicata against the prosecution, not as
a bar to the trial and conviction of the accused for a different or
distinct offence, but as precluding the acceptance/reception of
evidence to disturb the finding of fact when the accused is tried
subsequently for a different offence. This rule is distinct from the
doctrine of double jeopardy as it does not prevent the trial of any
offence but only precludes the evidence being led to prove a fact in
issue as regards which evidence has already been led and a specific
finding has been recorded at an earlier criminal trial. Thus, the rule
relates only to the admissibility of evidence which is designed to
upset a finding of fact recorded by a competent court in a previous
trial on a factual issue. (Vide: Pritam Singh & Anr. v. The State of
Punjab, AIR 1956 SC 415; Manipur Administration, Manipur v. Thokchom
Bira Singh, AIR 1965 SC 87; Workmen of the Gujarat Electricity Board,
Baroda v. Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu
Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626).
16. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988
SC 1106, wherein the accused were prosecuted under Customs Act, 1962
(hereinafter referred to as `Customs Act’) and subsequently under Gold
(Control) Act, 1968, (hereinafter called as `Gold (Control) Act’) it
was held that the ingredients of the two offences are different in
scope and content. The facts constituting the offence under the Customs
Act are different and are not sufficient to justify the conviction
under the Gold (Control) Act. It was held that what was necessary is to
analyse the ingredients of the two offences and not the allegations
made in the two complaints.
17. In M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement
AIR 1993 SC 1188, it was held:
“The further contention that under the Sea Custom Act for the
self same contravention, the penalty proceedings terminated in
favour of the appellant, is of little avail to the appellant
for the reasons that two Acts operate in different fields, one
for contravention of FERA and the second for evasion of excise
duty. The mere fact that the penalty proceedings for evasion of
the excise duty had ended in favour of the appellant, does not
take away the jurisdiction of the enforcement authorities under
the Act to impose the penalty in question. The doctrine of
double jeopardy has no application.”
(See also: State of Bihar v. Murad Ali Khan & Ors., AIR 1989 SC 1;
Union of India etc. etc. v. K.V. Jankiraman etc. etc., AIR 1991 SC
2010; State of Tamil Nadu v. Thiru K.S. Murugesan & Ors., (1995) 3
SCC 273; and State of Punjab & Anr. v. Dalbir Singh & Ors., (2001) 9
SCC 212).
18. In A.A. Mulla & Ors. v. State of Maharashtra & Anr., AIR 1997
SC 1441, the appellants were charged under Section 409 IPC and Section
5 of the Prevention of Corruption Act, 1947 for making false panchnama
disclosing recovery of 90 gold biscuits on 21-9-1969 although according
to the prosecution case the appellants had recovered 99 gold biscuits.
The appellants were tried for the same and acquitted. The appellants
were also tried for offence under Section 120-B IPC, Sections 135 and
136 of the Customs Act, Section 85 of the Gold (Control) Act and
Section 23(1-A) of FERA and Section 5 of Import and Export (Control)
Act, 1947. The appellants filed an application before the Judicial
Magistrate contending that on the selfsame facts they could not be
tried for the second time in view of Section 403 of the Code of
Criminal Procedure, 1898 (corresponding to Section 300 Cr.P.C.). This
Court held:
“After giving our careful consideration to the facts and
circumstances of the case and the submissions made by the
learned counsel for the respective parties, it appears to us
that the ingredients of the offences for which the appellants
were charged in the first trial are entirely different. The
second trial with which we are concerned in this appeal,
envisages a different fact-situation and the enquiry for
finding out facts constituting offences under the Customs Act
and the Gold (Control) Act in the second trial is of a
different nature……. Not only the ingredients of offences in the
previous and the second trial are different, the factual
foundation of the first trial and such foundation for the
second trial is also not indented (sic). Accordingly, the
second trial was not barred under Section 403 CrPC of 1898 as
alleged by the appellants.” (Emphasis added)
19. In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001 SC
1092, this Court considered the argument that if the punishment had
already been imposed for Court Martial proceedings, the proceedings
under the Central Rules dealing with disciplinary aspect and misconduct
cannot be held as it would amount to double jeopardy violating the
provisions of Article 20 (2) of the Constitution. The Court explained
that the Court Martial proceedings deal with penal aspect of the
misconduct while the proceedings under the Central Rules deal with the
disciplinary aspect of the misconduct. The two proceedings do not over-
lap at all and, therefore, there was no question of attracting the
doctrine of double jeopardy. While deciding the said case, the court
placed reliance upon its earlier judgment in R. Viswan & Ors. v. Union
of India & Ors., AIR 1983 SC 658.
20. In Union of India & Anr. v. P.D. Yadav, (2002) 1 SCC 405, this
Court dealt with the issue of double jeopardy in a case where the
pension of the official, who stood convicted by a Court-Martial, had
been forfeited. The Court held:
"This principle is embodied in the well-known maxim nemo debet
bis vexari si constat curiae quod sit pro una et eadem causa,
meaning no one ought to be vexed twice if it appears to the
court that it is for one and the same cause. Doctrine of double
jeopardy is a protection against prosecution twice for the same
offence. Under Articles 20-22 of the Indian Constitution,
provisions are made relating to personal liberty of citizens
and others….. Offences such as criminal breach of trust,
misappropriation, cheating, defamation etc., may give rise to
prosecution on criminal side and also for action in civil
court/ other forum for recovery of money by way of damages
etc., unless there is a bar created by law. In the proceedings
before General Court Martial, a person is tried for an offence
of misconduct and whereas in passing order under Regulation 16
(a) for forfeiting pension, a person is not tried for the same
offence of misconduct after the punishment is imposed for a
proven misconduct by the General Court Martial resulting in
cashiering, dismissing or removing from service. Only further
action is taken under Regulation 16 (a) in relation to
forfeiture of pension. Thus, punishing a person under Section
71 of the Army Act and making order under Regulation 16 (a) are
entirely different. Hence, there is no question of applying
principle of double jeopardy to the present cases."
21. In State of Rajasthan v. Hat Singh & Ors. AIR 2003 SC 791, this
Court held that as the offence of glorification of Sati under Section 5
of the Rajasthan Sati (Prevention) Act, 1987, is different from the
offence of violation of prohibitory order issued under Section 6
thereof, the doctrine of double jeopardy was not attracted for the
reason that even if prohibitory order is promulgated, a subsequent
criminal act even if falls under Section 5 could not be covered under
Section 6(3) of the said Act. Doctrine of double jeopardy is
enshrined in Section 300 Cr.P.C. and Section 26 of the General Clauses
Act. Both the provisions employ the expression “same offence”.
22. Similar view has been reiterated by this Court in State of
Haryana v. Balwant Singh, AIR 2003 SC 1253, observing that there may be
cases of misappropriation, cheating, defamation etc. which may give
rise to prosecution on criminal side and also for action in civil
court/other forum for recovery of money by way of damages etc.
Therefore, it is not always necessary that in every such case the
provision of Article 20(2) of the Constitution may be attracted.
23. In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR 2003 SC
2545, this Court while considering the case for quashing the criminal
prosecution for evading the customs duty, where the matter stood
settled under the Kar Vivad Samadhan Scheme 1988, observed that once
the tax matter was settled under the said Scheme, the offence stood
compounded, and prosecution for evasion of duty, in such a
circumstance, would amount to double jeopardy.
24. In view of the above, the law is well settled that in order to
attract the provisions of Article 20(2) of the Constitution i.e.
doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC
or Section 26 of General Clauses Act, ingredients of the offences in
the earlier case as well as in the latter case must be the same and not
different. The test to ascertain whether the two offences are the same
is not identity of the allegations but the identity of the ingredients
of the offence. Motive for committing offence cannot be termed as
ingredients of offences to determine the issue. The plea of autrefois
acquit is not proved unless it is shown that the judgment of acquittal
in the previous charge necessarily involves an acquittal of the latter
charge.
25. In Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3
SCC 581, while dealing with the proceedings under the provisions of
Foreign Exchange Regulation Act, 1973, this Court quashed the
proceedings (by a majority of 2:1) under Section 56 of the said Act
because adjudication under Section 51 stood finalised. The Court held :
“The ratio which can be culled out from these decisions can
broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary
before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are
independent in nature to each other;
(iv) The finding against the person facing prosecution in
the adjudication proceedings is not binding on the proceeding
for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate
is not prosecution by a competent court of law to attract the
provisions of Article 20(2) of the Constitution or Section 300
of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour
of the person facing trial for identical violation will depend
upon the nature of finding. If the exoneration in adjudication
proceedings is on technical ground and not on merit,
prosecution may continue; and
(vii) In case of exoneration, however, on merits where the
allegation is found to be not sustainable at all and the person
held innocent, criminal prosecution on the same set of facts
and circumstances cannot be allowed to continue, the underlying
principle being the higher standard of proof in criminal
cases.”
The ratio of the aforesaid judgment is not applicable in this
case for the reason that proceedings under Section 138 of N.I. Act are
still sub judice as the appeal is pending and the matter has not
attained finality.
26. Learned counsel for the appellant has further placed reliance
on the judgment in G. Sagar Suri & Anr. v. State of U.P. & Ors.,
(2000) 2 SCC 636, wherein during the pendency of the proceedings under
Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been
launched. This Court quashed the criminal proceedings under Sections
406/420 IPC, observing that it would amount to abuse of process of law.
In fact, the issue as to whether the ingredients of both the offences
were same, had neither been raised nor decided. Therefore, the ratio of
that judgment does not have application on the facts of this case.
Same remained the position so far as the judgment in Kolla
Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703,
is concerned. It has been held therein that once the conviction under
Section 138 of N.I. Act has been recorded, the question of trying a
same person under Section 420 IPC or any other provision of IPC or any
other statute is not permissible being hit by Article 20(2) of the
Constitution and Section 300(1) Cr.P.C.
27. Admittedly, the appellant had been tried earlier for the
offences punishable under the provisions of Section 138 N.I. Act and
the case is sub judice before the High Court. In the instant case, he
is involved under Sections 406/420 read with Section 114 IPC. In the
prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent
or dishonest intention at the time of issuance of cheque is not
required to be proved. However, in the case under IPC involved herein,
the issue of mens rea may be relevant. The offence punishable under
Section 420 IPC is a serious one as the sentence of 7 years can be
imposed. In the case under N.I. Act, there is a legal presumption that
the cheque had been issued for discharging the antecedent liability and
that presumption can be rebutted only by the person who draws the
cheque. Such a requirement is not there in the offences under IPC. In
the case under N.I. Act, if a fine is imposed, it is to be adjusted to
meet the legally enforceable liability. There cannot be such a
requirement in the offences under IPC. The case under N.I. Act can
only be initiated by filing a complaint. However, in a case under the
IPC such a condition is not necessary.
28. There may be some overlapping of facts in both the cases but
ingredients of offences are entirely different. Thus, the subsequent
case is not barred by any of the aforesaid statutory provisions.
The appeal is devoid of any merit and accordingly dismissed.
….....…….……………………..J.
(Dr. B.S. CHAUHAN)
.......……………………………J.
(JAGDISH SINGH KHEHAR)
New Delhi,
April 23, 2012
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