Uttarakhand High Court
Pawan Kumar Badoni vs State Of Uttarakhand And Another on 6 December, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 2471 of 2019
(Under Section 482 of Cr.P.C.)
Pawan Kumar Badoni ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
Advocate: Mr. Raj Kumar Singh, Advocate, for the applicant.
Mr. Subhash Tyagi, Deputy Advocate General, along with Mr.
Balvinder Singh Thind, Brief Holder, for the State
Mr. Piyush Garg, Advocate, for the respondent
Hon'ble Sharad Kumar Sharma, J.
Though not involving consideration, the learned counsel for the applicant since had ventured to put a challenge to the proceedings of Criminal Case No. 103 of 2016, State Vs. Pawan Kumar Badoni, which is being tried against him for his alleged involvement in commission of offence Under Sections 420, 406, 504 and 506 of IPC, in a FIR, which was registered against him being FIR No. 103 dated 14th September 2016, which was registered at Police Station, Vasant Vihar, district Dehradun on which the investigation was carried and a Chargesheet, being Chargesheet No. 13 of 2017 dated 4th February 2017, was submitted by the Investigating Officer, on which the cognizance have been taken by the Court of learned 2nd Judicial Magistrate, Dehradun by an order dated 21st March 2017.
2. A very peculiar argument which has been raised by the learned counsel for the applicant. Initially, he 2 had attempted to contend, that the initiation of the criminal proceedings is bad in the eyes of law, because there was already a pending 138 proceeding.
3. Later on, when the arguments proceeded further, it was argued, that the institution of the proceedings itself belies the arguments which had been extended by the learned counsel for the applicant. As the FIR, on which the cognizance have been taken, resulting into a registration of Criminal Case No. 103 of 2016, is as a consequence of an earlier instituted FIR dated 14th September 2016, and the registration of the complaint case is much later thereafter i.e. on 17th October 2016 whereby two Complaint Cases, being Complaint Case No. 4204 of 2016 and Complaint Case No. 4205 of 2016 were got instituted by the respondent under Section 138 of the Negotiable Instruments Act. Hence, the argument, which was initially attempted to be extended by the learned counsel for the applicant is foiled, as the institution of the complaint proceedings since being subsequent to the FIR, it will not have any adverse bearing on it.
4. There is another reason, that the act and action which has been complained of in the complaint proceedings is falling within the scope of Section 138 of the Negotiable Instruments Act, which would be confined to for taking an action under a special Act in an event of dishonour of cheque. Because the proceedings for dishonour of cheque in itself will not entail, a trial of an applicant for an act of malicious 3 intent of committing a criminal offence, for which the FIR, already stood registered prior in time i.e. on 14th September 2016.
5. The learned counsel for the applicant argues, that the subject matter of the complaint proceedings and the proceedings on a criminal side are similar hence, the criminal case couldn't be proceeded with.
6. This contention is not acceptable by this Court, for the reason being, that the proceedings under Section 138 of N.I. Act, which is apparently subsequent in time, is all together having a different legislative intent, to be met with in accordance with the SOR (Statements of objects and Reasons) of Negotiable Instruments Act, which is absolutely independent in its application to the provisions of the general panel action, provided under the provisions of Indian Panel Code.
7. The proceedings under the provisions of Indian Penal Code in itself will not cloud the proceedings under Section 138, maybe that factually it might be entailing consideration of same factual controversy with regard to the extension of the financial assistance, the duping of the opposite party, which is complained of in the criminal case.
8. Duping of the financial assistance extended, is altogether a different subject matter, than that of the dishonor of the cheque, because the very fact, that the cheque was issued, would amount to be an admission 4 of an allegation levelled in the criminal proceedings since being a proceeding drawn subsequent in time.
9. The learned counsel for the applicant has referred to the provisions contained under Section 300 of the CrPC, contending thereof that drawing of a subsequent proceedings would be barred in the light of the provisions contained under Section 300 of CrPC.
10. There are two reasons for not to accept the arguments, which had been extended by the learned counsel for the applicants. One, the bar of Section 300 of CrPC as per opinion of this Court would be only attracted when there is a prior conviction or acquittal; this is not the case at hand. Secondly, the parties to the proceedings cannot take the liberty to dissect a provision of law and read it, according to its own convenience by excluding the principal head, which necessitated the legislature to formulate a provision of law.
11. The restraint of initiation of a subsequent proceeding as per Section 300 of CrPC, is only in an event with when there is a conviction or an acquittal, which is factually not a case at hand under either of the circumstances i.e. under the proceedings under the criminal law or under Section 138 of the Negotiable Instruments Act and hence Section 300 of CrPC would not be attracted under the facts of this case as attempted to be attracted by the learned counsel for the applicant.
512. The learned counsel for the applicant has made reference to a judgement as reported in 2022 SCC OnLine SC 1010, J. Vedhasingh Vs. R.M. Govindan and Others, where the Hon'ble Apex Court has referred to the effect of double jeopardy, as a consequence of the implications of Section 300(1) of CrPC.
13. The principle of double jeopardy dealt with by the Hon'ble Apex Court, in the said case, with all due reverence at my command, would only be attracted when there is a prior adjudication or a determination of a liability by a concluded criminal proceedings, and not be attracted at the stage when the proceedings are still pending and that too under a different act which have a different intention to be met with. Hence, the judgement relied by the learned counsel for the applicant and particularly, when he refers to para 13 of the said judgment, which is extracted hereunder, is altogether under a different context, wherein it was observed that where the allegations are similar and that too for the prosecution of the offences under Section 138 of the Negotiable Instruments Act, as well as that of Section 406 and 420 of the IPC, which are similar in nature, this Court is of the view, even if that observation is to be remotedly accepted in order to attract Section 300(1) of CrPC, since the Hon'ble Apex Court has not observed or laid any principle, as to what would be the effect of the head of Section 300(1) of CrPC, where it refers to "conviction or an acquittal", 6 the judgement would not be of any avail, as far as the present applicant is concerned, to attract the bar to the proceedings of Criminal Case No. 103 of 2016, which was instituted prior to the complaint proceedings under Section 138 of the Negotiable Instruments Act. Para 13 of the said judgment reads as under:-
"13. 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 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 7 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 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?
(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?"
14. As per the opinion of this Court, there is a reason behind it. If this analogy is accepted, it will be very convenient for any person, to take an advantage of institution of proceedings under Section 138 of the Negotiable Instruments Act, at a subsequent stage, in order to argue, that the proceedings under Section 138 of Negotiable Instruments Act, would be a subsequent proceedings, and cognizance of an offence under the same set of facts, which could not be taken into consideration, because of pending criminal proceeding.
815. I am of a different opinion, with all due reverence at my command, that it is always the intention of an Act, which has to be considered for the purposes of drawing a proceeding. A same set of facts, when it entails a consideration of two perspectives of indulgement of a person in commission of offence, which entails a consideration of an act complaint of under criminal law or an offence, which entails a consideration of an act of dishonor of cheque, they would be absolutely distinct to one another and they will not overlap the proceedings, in order to attract the provisions contained under Section 300 of CrPC. Rather, this Court is of the view, that as soon as the cheque was issued, which was dishonored, which compelled the respondent to initiate the proceedings under Section 138 of the Negotiable Instruments Act, that itself would support the criminal proceedings drawn by the applicant, because issuance of a cheque would be an acceptance of the set of allegations which are levelled in the FIR.
16. Apart from it, the learned counsel for the respondent had made a reference to yet another judgement reported in 2012 (7) SCC 621, Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another, and the aspect of double jeopardy in the context of Article 20(2) was considered by the Hon'ble Apex Court therein, in the light of the provisions contained under Section 300 of CrPC to be read with Section 26 of the General Clauses Act.
917. The Hon'ble Apex Court, in para 37, 38 and 39 of the said judgment of Sangeetaben Mahendrabhai Patel (supra), has taken a different view, that the bar of initiation of proceeding under Section 420 could only be attracted when there is a conviction under Section 138 of N.I. Act, hence, this case factually being distinguishable, in the light of the principles laid down by the Hon'ble Apex Court in the said judgement of Sangeetaben (supra), the argument of the learned counsel for the applicant is not acceptable by this Court, The relevant paras 37, 38 and 39 of the said judgment of Sangeetaben Mahendrabhai Patel (supra) are extracted hereunder:-
"37. 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.
38. 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.
29. 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."10
18. Hence, C482 Application lacks merits and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 06.12.2022 Mahinder/