REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2022
ARISING OUT OF SLP (CRL.) NO.2864 OF 2019
J. Vedhasingh …..APPELLANT(S)
VERSUS
R.M. Govindan & Ors. ..…RESPONDENT(S)
J U D G M E N T
J.K. Maheshwari, J.
Leave granted.
2. The instant appeal has been filed assailing the final order
dated 06.12.2018 passed by the High Court of Madras in
CRL.O.P. No. 6750 of 2017, whereby the High Court allowed the
criminal petition filed by the respondents no.1 to 4 under Section
482 of Code of Criminal Procedure, 1973 (for short “Cr.P.C”) and
quashed proceedings under Sections 120B, 406, 420 and 34 of
the Indian Penal Code, 1860 (for short “IPC”) being C.C. No. 33
12022 INSC 825
of 2017 pending before Judicial Magistrate Court No. III,
Coimbatore.
3. The brief facts necessary for the instant appeal are that the
appellant herein was working as a Civil Engineer in Saudi Arabia.
On his return back to India in the year 2011, he purchased a site
from respondent no.2 who is the father of respondent no.1 in
Coimbatore. Apart from this, the respondents owned 7 other
house sites in total in V.C.K. Layout, Trichy Road, Coimbatore
City, which all were mortgaged to Tamil Nadu Industrial
Investment Corporation, way back from 12.10.2006. Appellant
contended that the respondents approached and asked him to
invest money for the development of the land of the said 7 sites
and assured that profit shall be divided amongst the appellant
and respondents. Pursuant to it a profitsharing agreement was
executed between the parties. The appellant made the investment
of a sum of Rs.62,32,754/, but neither profit was shared nor
any piece of land was given to the appellant. Consequently, the
appellant asked to repay the amount. Under guise of assurance
of repayment by respondent no.1, the appellant did not lodge
any criminal prosecution as per his request. The respondent no.1
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handed over a cheque dated 09.09.2015 for an amount of
Rs.87,00,000 in lieu of repayment of principal sum and interest.
4. On presenting the said cheque to the bank it was
dishonored on account of insufficient funds on 09.09.2015. Being
aggrieved, a demand notice was issued on 30.10.2015 and
complaint under Section 138 of Negotiable Instruments Act, 1881
(for short “NI Act”) being S.T.C. No.792 of 2015 renumbered as
C.C. No.199 of 2016 on the file of Fast Track Magistrate No.1 of
Coimbatore (for short “138 Proceedings”) was lodged by the
appellant on 07.12.2015. Prior to initiating 138 proceedings, the
appellant lodged a complaint under section 156(3) Cr.P.C being
CMP No. 5083 of 2015 before Judicial Magistrate No. III
Coimbatore on 30.10.2015. The Magistrate directed respondent
no. 5 to register the FIR but by filing a report dated 29.01.2016,
it was said that no offence is made out against the respondents.
The appellant challenged the same by filing CRL.O.P. No. 6766 of
2016 before the High court of Madras and also prayed for
direction against respondent no.5 to conduct fresh investigation.
The High Court disposed of the same with an observation that
the appellant may raise objection on closure report by way of
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protest petition. In pursuance thereof, the appellant filed a
protest petition being Crl.M.P. No. 3891 of 2016, which was
allowed by the Magistrate vide order dated 24.09.2016 directing
the respondent no. 5 to register the case against the respondent
no. 1 to 4 and to complete the investigation. Thereafter only, the
respondent no.5 registered the case against respondent no.1 to 4
at Crime No.49 of 2016 for the offences under Sections 120B,
406, 420 and 34 of IPC on 01.10.2016, and after investigation,
challan was filed before the competent Magistrate on which
cognizance was taken by him.
5. The respondents, being aggrieved by the same, filed
CRL.O.P. No. 6750 of 2017 before the High Court of Madras for
quashment of the aforesaid proceedings. The High Court by the
impugned order allowed the said petition and quashed the
proceedings taking into consideration that proceedings under
Section 138 of the N.I. Act pertaining to the same cause of action
and on the same facts and grounds are pending, prior to the
registration of the present proceedings. It was observed that,
looking to the allegations made in the FIR, only offence under
section 138 of NI Act can be made out and continuance of the
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present proceedings for offences under sections 406, 420, 120B
and 34 of IPC would amount to abuse of process of the Court.
The said order passed by the High Court is assailed by the
appellant in the instant appeal.
6. Learned senior counsel Mr. S. Nagamuthu contends that in
the facts of the present case the plea of double jeopardy or bar of
Section 300(1) of Cr.P.C. would attract only when the earlier
offence and the later offence is same or have same ingredients.
The identity of the allegations on fact is not relevant, in fact, the
identity of the ingredients of the offence is relevant. The plea
taken by respondent no.1 to 4 that a person who is previously
acquitted cannot be tried for the same offence subsequently,
shall apply only when it is shown that acquittal for the previous
charge would lead to acquittal in the subsequent charge. In an
offence under Section 138 of the NI Act, requirement to prove
mens rea is not necessary although for an offence under Section
420, fraudulent and dishonest intention i.e. mens rea is relevant
to prove. In support of the said contention, reliance has been
placed on the judgment of Sangeetaben Mahendrabhai Patel v.
State of Gujarat and Anr, (2012) 7 SCC 621. The said
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judgment has also been relied in the case of M/s V.S. Reddy and
Sons v. Muthyala Ramalinga Reddy and Anr. (Crl Appeal No.
1285 of 2015) decided on 28.09.2015. Therefore, urged the
quashment of the proceedings for an offence under Sections 420,
406, 120(B) and 34 IPC as directed by the High Court is wholly
unjustified.
7. On the other hand, learned counsel for the respondents
contends that as per the judgment of Kolla Veera Raghav Rao
v. Gorantla Venkateswara Rao and Anr, (2011) 2 SCC 703,
this Court has held that if the offences are different and the facts
are the same, the prosecution under Section 420 of the IPC is
barred by virtue of Section 300(1) of the Cr.P.C. Further reliance
has been placed on a judgment of this Court in the case of G.
Sagar Suri and Anr. v. State of UP and Others, (2000) 2 SCC
636, wherein also the offences under Section 138 of NI Act as
well as the offence under Sections 406 and 420 of IPC were
allegedly committed by the accused of that case. After lodging the
complaint under Section 138 of NI Act, a petition under Section
482 before the High Court was filed for quashment of the
complaint which was dismissed. On filing the special leave
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petition before this Court, it was allowed and the Court directed
that the prosecution under Sections 420 and 406 is not tenable
and quashed.
8. After having heard learned counsel appearing on behalf of
the appellant as well as the respondents who have advanced their
contentions relying upon the judgments of this Court. The
reliance placed by the appellant is on a judgment of
Sangeetaben Mahendrabhai Patel (supra) wherein this Court
has considered various judgments. The relevant portion of the
judgment of Sangeetaben Mahendrabhai Patel (supra) is
reproduced as thus:
“35. The learned counsel for the appellant has further
placed reliance on the judgment in G. Sagar
Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC
(Cri) 513] wherein during the pendency of the
proceedings under Section 138 of the NI 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 the 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.
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36. Same remained the position so far as the
judgment in Kolla Veera Raghav Rao v. Gorantla
Venkateswara Rao [(2011) 2 SCC 703 : (2011) 1 SCC
(Cri) 882 : (2011) 1 SCC (Civ) 547] is concerned. It has
been held therein that once the conviction under
Section 138 of the NI Act has been recorded, the
question of trying the same person under Section 420
IPC or any other provisions of IPC or any other statute
is not permissible being hit by Article 20(2) of the
Constitution and Section 300(1) CrPC.
37. Admittedly, the appellant had been tried earlier
for the offences punishable under the provisions of
Section 138 of the NI 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 of the
NI 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.
38. In the case under the NI 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 the NI 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
the NI Act can only be initiated by filing a complaint.
However, in a case under IPC such a condition is not
necessary.
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39. There may be some overlapping of facts in both
the cases but the ingredients of the offences are
entirely different. Thus, the subsequent case is not
barred by any of the aforesaid statutory provisions.
40. The appeal is devoid of any merit and is
accordingly dismissed.”
On perusal of the same, it is clear that the judgment of G. Sagar
Suri (supra) has been considered but because the issue
regarding the ingredient of both offences were same was not
raised or decided, it has been said that the ratio of that judgment
does not have application in the facts of the case. Similarly, the
judgment of Kolla Veera Raghav Rao (supra) has also been
considered but distinguished on fact while observing that when a
conviction under Section 138 of the NI Act has been recorded, the
prosecution to try the same person under Section 420 of the IPC
is not permissible as per Section 300(1) of Cr.P.C. The judgment
of Sangeetaben Mahendrabhai Patel (supra) has been relied in
the case of M/s. V.S. Reddy and Sons (supra).
9. Learned counsel for the respondents have relied upon the
judgment of G. Sagar Suri (supra) and contended that the said
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issue has been settled more than two decades prior. The relevant
paragraphs of the said judgment are reproduced as thus:
“13. In the circumstances of the case in hand the
conclusion is inescapable that invoking the jurisdiction
of a criminal court for allegedly having committed
offences under Sections 406/420 IPC by the
appellants is certainly an abuse of the process of law.
In the counteraffidavit filed on behalf of the
complainant it is now admitted that none of the two
appellants is a Director of Ganga Automobiles Ltd.
Only in respect of the first appellant it is stated that he
is the authorised signatory of that Company and that
in fact he had signed the cheques which were
returned dishonoured. Apart from making the omnibus
statement that the first appellant with dishonest
intentions and misrepresentations got a loan of Rs
50,00,000 from the complainant Company for Ganga
Automobiles Ltd. there is nothing said as to what were
those misrepresentations and how the complainant
Company was duped. The only part attributed to the
second appellant is that the first appellant along with
Ashwani Suri, Managing Director and Mukender
Singh, Director approached the complainant in June
1996 and had represented that they and Shalini Suri,
Shama Suri (Appellant 2), Charanjit Singh and M.L.
Kampani were the Directors of Ganga Automobiles
Ltd. There is nothing stated in the counteraffidavit
about the role, if any, played by the second appellant.
A complaint under Section 138 of the Negotiable
Instruments Act has already been filed by the
complainant. There is no allegation of any corrupt
practice by any of the accused as if they duped the
Finance Company in parting with the amount of Rs
50,00,000. As normally understood, the business of a
finance company is to invite deposits, pay interest on
that and also to give loans and earn interest. A
finance company also advances shortterm loans. In
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that case it is essentially a commercial transaction.
After the first two cheques were dishonoured two
cheques were again issued, which again were
dishonoured resulting in filing of complaint under
Section 138 of the Negotiable Instruments Act. None of
the respondents has been able to explain as to why
offences under Sections 406/420 IPC were not added
in the complaint filed under Section 138 of the
Negotiable Instruments Act and why resort was had
to filing of a separate first information report. A certain
motive has been attributed to the investigating officer
but we think we need not go into that. There is also no
answer as to why the investigation against the three
other Directors was still stated to be pending when the
same role is assigned to all the accused. In the FIR it
is Sukhvinder Singh, who first approached the
complainant, but later it is Mukender Singh. There is
no answer as to why there are two different names.
As to who are the Directors of Ganga Automobiles Ltd.
could have been easily found by the complainant after
going through the records of the Registrar of
Companies and also about its status. As noted above,
in the subsequent statement by the complainant he
does not assign any role to the first appellant. The
allegation that in the first instance three persons
contacted the complainant Company, who told the
complainant of other Directors with whom the
complainant conversed on telephone appears to be
rather improbable.
14. We agree with the submission of the appellants
that the whole attempt of the complainant is evidently
to rope in all the members of the family particularly
those who are the parents of the Managing Director of
Ganga Automobiles Ltd. in the instant criminal case
without regard to their role or participation in the
alleged offences with the sole purpose of getting the
loan due to the Finance Company by browbeating and
tyrannising the appellants with criminal prosecution.
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A criminal complaint under Section 138 of the
Negotiable Instruments Act is already pending against
the appellants and other accused. They would suffer
the consequences if offence under Section 138 is
proved against them. In any case there is no occasion
for the complainant to prosecute the appellants under
Sections 406/420 IPC and in his doing so it is clearly
an abuse of the process of law and prosecution
against the appellants for those offences is liable to be
quashed, which we do.
15. The appeal is allowed and the judgment of the
High Court dated 651999 is set aside and
prosecution of the appellants under Sections 406/420
IPC in Criminal Case No. 674 of 1997 (now Criminal
Case No. 6054 of 1998) and pending in the Court of
Chief Judicial Magistrate, Ghaziabad is quashed.”
10. Similarly in the case of Kolla Veera Raghav Rao (supra)
this Court reaffirmed the view taken in the said case. The relevant
paragraphs are reproduced as thus:
“4. It may be noticed that there is a difference
between the language used in Article 20(2) of the
Constitution of India and Section 300(1) CrPC. Article
20(2) states:
“20. (2) No person shall be prosecuted and punished
for the same offence more than once.”
On the other hand, Section 300(1) CrPC states:
“300. Person once convicted or acquitted not to be
tried for same offence.—(1) 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
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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 subsection (1) of
Section 221, or for which he might have been
convicted under subsection (2) thereof.”
5. Thus, it can be seen that Section 300(1) CrPC is
wider than Article 20(2) of the Constitution. While
Article 20(2) of the Constitution only states that “no
person shall be prosecuted and punished for the same
offence more than once”, Section 300(1) CrPC states
that no one can be tried and convicted for the same
offence or even for a different offence but on the same
facts.
6. In the present case, although the offences are
different but the facts are the same. Hence, Section
300(1) CrPC applies. Consequently, the prosecution
under Section 420 IPC was barred by Section 300(1)
CrPC.”
11. In that case, on similar set of allegations, cognizance under
Section 138 of NI Act on filing a private complaint was taken and
accused were tried, while in other complaint it is alleged that the
offence under Sections 406 and 420 is also made out, however, as
directed by Court separate prosecution was lodged. On filing the
quash petition, this Court held that on the same set of allegations
two different offences i.e., under NI Act and IPC cannot be
proceeded with and the proceedings under Sections 420 and 406
of IPC is liable to be quashed.
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12. On perusal of the judgment of Sangeetaben Mahendrabhai
Patel (supra) relied in the case of M/S. V.S. Reddy and Sons
(supra) by the appellant and the judgments relied upon by the
respondents in the case of G. Sagar Suri (supra) and Kolla
Veera Raghav Rao (supra) as afore quoted, the facts and the
allegations were similar and that too the prosecution for the
offences under Section 138 of the NI Act and, under Sections 406
and 420 of the IPC were also similar. In the judgment of
Sangeetaben Mahendrabhai Patel (supra) it was held that the
requirement to prove an offence under the NI Act and an offence
under the IPC is different, and it was observed that there may be
some overlapping of facts but the ingredients of the offences are
entirely different, therefore, the subsequent cases are not barred
by any statutory provisions. While in the case of G. Sagar Suri
(supra) and Kolla Veera Raghav Rao (supra), the Court
concluded that as per Section 300(1) Cr.P.C. no one can be tried
and convicted for the same offence or even for a different offence
on the same facts, therefore, the prosecution under Section 420
of the IPC is barred by Section 300(1) of Cr.P.C and accordingly
liable to be quashed. It is to observe that in the case of
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Sangeetaben Mahendrabhai Patel (supra) the judgments of G.
Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) have
been referred but distinguished on the ground that it was not
raised and decided that ingredients of both offences were not
same, and the bar of Section 300(1) of Cr.P.C. would not attract.
It is relevant to note here that the judgments cited by both the
parties are rendered by benches having the strength of two
Judges. In our considered view, the bench of this Court in the
case of Sangeetaben Mahendrabhai Patel (supra) followed in
M/s. V.S. Reddy and Sons (supra) has taken a different view
from the previous judgments of G. Sagar Suri (supra) and Kolla
Veera Raghav Rao (supra) rendered by the bench of the same
strength. The view taken in both the cases are conflicting to each
other. Needles to observe that it is a trite law, if any issue is
decided in a previous judgment by a bench of the same strength,
conflicting view in the subsequent judgment should not be
rendered on the pretext that the issue has not been raised or
considered in the previous judgment. In this regard the judgment
in District Manager, APSRTC, Vijaywada v. K. Sivaji, (2001)
2 SCC 135, Chandra Prakash v. State of U.P., 2002 AIR SCW
15
1573 can be profitably referred whereby it is observed that
judicial decorum demands that if judgments passed by two
judges’ bench of equal strength are conflicting, the issue of law
involved must be referred to a larger bench as the same is
desirable to avoid confusion and maintain consistency of law. In
our view, the aforesaid judgments cited by the respective parties
are conflicting, however, to avoid any further confusion and to
maintain consistency, we deem it appropriate to refer this issue
for decision by the larger bench to answer the following
questions:
(1) Whether the ratio of the judgment, in the case of G. Sagar
Suri (supra) and Kolla Veera Raghav Rao (supra) lay down the
correct law?
or
The view taken in the case of Sangeetaben Mahendrabhai
Patel (supra) as followed in M/s V.S. Reddy and Sons (supra)
which is subsequent and conflicting, lay down the correct
proposition of law?
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(2) Whether on similar set of allegations of fact the accused can
be tried for an offence under NI Act which is special enactment
and also for offences under IPC unaffected by the prior conviction
or acquittal and, the bar of Section 300(1) Cr.P.C. would attract
for such trial?
13. In view of the above discussion, in our view, the judgments
relied by learned counsel for both the parties are in conflict with
each other on the legal issue. Therefore, the above questions of
law have been formulated for answer by a larger bench for
decision. In such circumstances, we request the Registry to place
the file before Hon’ble the Chief Justice of India for orders.
..………….……………….J.
(S. ABDUL NAZEER)
……...……………………J.
(J.K. MAHESHWARI)
NEW DELHI;
AUGUST 11, 2022.
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