Himachal Pradesh High Court
Rajan Chopra vs Kishori Lal on 24 April, 2024
Rajan Chopra Versus Kishori Lal Cr.MP (M) No.1504 of 2023 .
24.04.2024 Present: Mr. Ashok Kumar, Advocate, for the applicant/appellant.
Mr. Sahil Malhotra, Advocate, for the respondent.
Cr.MP (M) No.1504 of 2023 This is an application under Section 378(4) Cr.P.C. praying for leave to appeal against the judgment dated 29.09.2022 [Annexure P-1] of acquittal of respondent-accused [Kishori Lal] herein.
2. The factual matrix of the case is that a complaint under Section 138 of the Negotiable Instruments Act was filed by the applicant-
appellant [Rajan Chopra] against the respondent-
accused [Kishori Lal] herein on 07.08.2012. The aforesaid complaint was tried and the complaint was dismissed and the respondent-accused [Kishori Lal] was acquitted by the Learned Trial Court on 13.04.2016.
3. During pendency of the proceedings under Section 138 of the Negotiable Instruments Act [instituted since 07.08.2012 to 13.04.2016], the applicant-appellant [Rajan Chopra] herein had filed a complaint under Section 420 of the Indian Penal ::: Downloaded on - 01/05/2024 20:30:17 :::CIS Code on 06.12.2014 which was dismissed by the .
Learned Trial Court on 29.09.2022 [Annexure P-1].
4. This order dated 29.09.2022 [Annexure P-1] passed by the Learned Trial Court has been assailed in accompanying Criminal Appeal [yet to be registered] along with an application [Cr.MP(M) No.1504 of 2023] under Section 378 (4) Cr.P.C. for granting the Leave to Appeal.
5. Upon issuance of notice on this application for Leave to Appeal, on 20.06.2023, Mr. Sahil Malhotra, has filed the reply to this application;
opposing the grant to leave, by relying on Section 300 (1) of Code of Criminal Procedure and stating that once the matter in relation to the cheque in proceedings under Section 138 of NI Act was adjudicated leading to acquittal, therefore, on same issue the complaint under Section 420 IPC could not be instituted by the appellant/applicant [Rajan Chopra] and in these circumstances, the leave to appeal may not to be granted.
In order to support his contention Mr. Sahil Malhotra, learned counsel for the respondent, places reliance on the judgment passed by the Hon'ble Supreme Court in Kolla ::: Downloaded on - 01/05/2024 20:30:17 :::CIS Veera Raghav Rao versus Gorantla Venkateswara .
Rao & Anr., (2011) 2 SCC 703, that once the offence has been tried leading to conclusion or acquittal, therefore, as per under Section 300 (1) of the Code of Criminal Procedure, same facts cannot be made the subject matter of subsequent proceedings. The relevant paras are reproduced hereunder:-
"3. The learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission.
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 ::: Downloaded on - 01/05/2024 20:30:17 :::CIS Section 420 IPC was barred by Section 300(1) CrPC."
.
6. The contention of learned counsel for the respondent/non-applicant, Mr. Sahil Malhotra, prima facie appears to be impressive. But on close scrutiny of the facts of instant case, this Court is of the view that the judgment in case of Kolla Veera Raghav, is not applicable, for the reason, that the aforesaid judgment was rendered in the context of the peculiar facts whereby, after the conviction under Section 138 of the Negotiable Instruments Act, the question arose with respect to the effect of the complaint/ prosecution under Section 420 of Indian Penal Code, on the same set of facts, whereas in the instant case, the complaint-prosecution under Section 420 IPC was initiated during the pendency of the proceedings under Section 138 of the Negotiable Instruments Act.
Moreover, the learned counsel for the non-
applicant/accused has also not pointed out that the ingredients of both the offences under Section 138 of Negotiable Instruments Act and Section 420 of Indian Penal Code were same.
7. Per contra, Mr. Ashok Kumar, learned counsel for the applicant-appellant places reliance ::: Downloaded on - 01/05/2024 20:30:17 :::CIS on the judgment passed by the Hon'ble Supreme .
Court of India in Criminal Appeal No.645 of 2012, titled as Sangeetaben Mahendrabhai Patel versus State of Gujrat & anr., decided on 23.04.2012.
The relevant paras are reproduced hereunder:-
"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 Constitutional and Section 300 (1) Cr.P.C.
::: Downloaded on - 01/05/2024 20:30:17 :::CIS27. 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 r 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."
8. Notably, the Hon'ble Supreme Court in T.P.Gopalakrishnan versus State of Kerala (2022) 14 SCC 323 has outlined the principle of Article 20(2) ::: Downloaded on - 01/05/2024 20:30:17 :::CIS of the Constitution of India and Section 300 Cr.P.C. as .
under:
"24. Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, so long as an order r of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section.
25. Section 300 of the CrPC is based on the maxim nemo deber bis vexari, sicostest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged. As per the decision of this Court in Vijayalakshmi vs. Vasudevan (1994) 4 SCC 656 in order to bar the trial of any person already tried, it must be shown that:
(i) he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts,
(ii) he has been convicted or acquitted at the trial, and
(iii) such conviction or acquittal is in force."::: Downloaded on - 01/05/2024 20:30:17 :::CIS
9. In the background of the mandate of the .
entirety of the facts and circumstances and the law, in case of Sangeetaben Mahendrabhai Patel's and T.P. Gopalakrishnan (supra), this Court, is of the considered view that the bar contained in Section 300 Cr.P.C. cannot apply when, the complaint under Section 420 IPC was filed on 06.12.2024 during the pendency of the complaint from 07.08.2012 to 13.04.2016 before the learned Judicial Magistrate. The bar under Section 300 Cr.P.C. applies when, the offene is tried leading to acquittal or conviction, which is not the facts in instant case. Even, the issue as to whether the proceedings under Section 138 of the Negotiable Instruments Act and complaint under Section 420 of Indian Penal Code arose from same facts-situation constituting same or different offences under Sub-
Section (2) to (5) of Section 300 Cr.P.C. needs to be examined, in the accompanying appeal. Further, even, on facts, Mr. Sahil Malhotra, learned counsel for the non applicant-respondent does not dispute, that the principles of Section 300 Cr.P.C. are not attracted in this case. However, the validity of the impugned order dated 29.09.2022 [Annexure P-1] needs to be examined in accompanying appeal.
::: Downloaded on - 01/05/2024 20:30:17 :::CISIn view of the above discussion, the .
application is allowed; and contentions of Learned Counsel for respondent-accused/non-applicant are devoid of any merit.
Accordingly, the Leave to Appeal is granted and the application stands disposed of.
r to Criminal Appeal No._____/2024 Be registered.
List the matter after three weeks.
(Ranjan Sharma)
April 24, 2024 Judge
(Shivender)
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