Q. Can BNS case be carried out along with Sec. 138 cheque bounce case?
Ans. The following Hon'ble Supreme Court judgments shows whether BNS case be carried out along with cheque bounce case.
Hon'ble Supreme Court Rulings regarding 138 NI Act Cheque Bounce case along with FIR under BNS.
SLP(Crl.) 5222/15
1 IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1285 OF 2015
(Arising out of S.L.P.(Crl.) No.5222 of 2015)
M/s. V.S. Reddy and Sons Appellant(s)
Versus
Muthyala Ramalinga Reddy and Another Respondent(s)
O R D E R
Leave granted.
The present appeal, by special leave, calls in question the legal validity of the order dated 16 th December, 2014 in Criminal Petition No.8362 of 2012, preferred under Section 482 of the Code of Criminal Procedure (Cr.P.C.), whereby the High Court has directed stay of Crime No.6 of 2012 instituted for the offence punishable under Section 420 of the Indian Penal Code and directed C.C. No.139 of 2012 instituted for the offence under Section 138 of the Negotiable Instruments Act to be taken up by the learned Magistrate for trial.
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2015.10.08 17:06:30 IST
Reason:
It is submitted by Mr. D. Ramakrishna Reddy learned counsel appearing for the appellants that the High Court has erroneously stayed the proceeding by forming opinion that the cases under Section 420 I.P.C and Section 138 of the SLP(Crl.) 5222/15
Negotiable Instruments Act are based on self same facts, and hence Section 300(1) of the Code of Criminal Procedure would come into play. To bolster his submission, he has placed reliance on Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Another (2012) 7 SCC 621.
In Sangeetaben Mahendrabhai Patel (supra), it has been held as follows:
"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."
On a perusal of the judgment in entirety, we find that the similar reasoning was given by the High Court which was not accepted by this Court. The attractability of Section 300 Cr.P.C. was negatived. The facts in the present case are almost similar to the case stated in Sangeetaben Mahendrabhai Patel (supra).
In view of the aforesaid, we allow the appeal and set aside the order passed by the High Court and direct that the learned Magistrate before whom both the cases are SLP(Crl.) 5222/15 3 pending, shall proceed in accordance with law. However, we direct that he shall pronounce the judgments in both the cases on the same day.
The appeal is disposed of accordingly.
....................J. [Dipak Misra]
....................J. [Prafulla C. Pant]
New Delhi
September 28, 2015.
SLP(Crl.) 5222/15 4 ITEM NO.62 COURT NO.5
SECTION II S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.5222/2015
(Arising out of impugned final judgment and order dated 16/12/2014 in CRLP No. 8362/2012,16/12/2014 in CRLPM No. 7839/2012 passed by the High Court Of Judicature at Hyderabad for The State Of Telangana and The State of Andhra Pradesh) M/S. V.S. REDDY & SONS Petitioner(s) VERSUS MUTHYALA RAMALINGA REDDY & ANR. Respondent(s) (With appln. (s) for exemption from filing O.T. and interim relief and office report)
Date : 28/09/2015
This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE PRAFULLA C. PANT
For Petitioner(s) Mr. D. Ramakrishna Reddy, Adv. Mrs. D. Bharathi Reddy, AOR For Respondent(s) Mr. B. Ramana Murthy, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is disposed of in terms of the signed order.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master (Signed order is placed on the file)
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
Page 2
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
Page 3
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.
Page 4
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
Page 5
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 subsection
(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:
“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
Page 6
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
Page 7
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)
Page 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
Page 9
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:
Page 10
“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)
Page 11
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
Page 12
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.
Page 13
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
Page 14
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
Page 15
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
Page 16
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
Page 17
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”.
Page 18
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
Page 19
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
Page 20
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
Page 21
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
Page 22
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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