Madhya Pradesh High Court
Brijnandan Deewan vs The State Of Madhya Pradesh on 27 January, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH MCRC No.42642/2019 (BRIJNANDAN DEEWAN AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS ) Gwalior dtd. 27/01/2020 Shri Ankur Tiwari, learned counsel for the petitioners. Shri R.K.Upadhyay, learned Public Prosecutor for the State. This application under Section 482 of Cr.P.C. has been filed seeking the quashment of the FIR in Crime No.551/2014 registered at Police Station Gwalior (Kila Gate), District Gwalior for offence under Section 420 of IPC.
It is submitted by the counsel for the petitioners that according to prosecution case, the petitioners had agreed to sale certain piece of land after receiving an amount of Rs.16,40,000/- and when the petitioners could not execute the sale deed, therefore, in order to return the amount, the petitioners issued two cheques, which stood bounce.
The petitioners were prosecuted under Section 138 of N.I.Act in which they were convicted, however, in the Lok Adalat of this Court, the matter was compromised and the petitioners have repaid the amount to the complainant. Thus, it is prayed that the FIR as well as charge-sheet may be quashed on the ground of compromise.
It is well established principle of law that even after the conviction of the accused under Section 138 of N.I.Act, they can be prosecuted for offence under Section 420 of IPC and the subsequent prosecution would not amount to double jeopardy, as the nature of offence under Section 138 of N.I.Act and under Section 420 of IPC 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.42642/2019 (BRIJNANDAN DEEWAN AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS ) are different.
The Supreme Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another reported in (2012) 7 SCC 621 has held as under:-
"9. 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.
10. Section 300(1) Cr.P.C. reads:
"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 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."
11. Section 26 of the General Clauses Act, 1897 reads:
"26. Provision as to offences punishable 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.42642/2019 (BRIJNANDAN DEEWAN AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS ) 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."
12. Section 71 of I.P.C. reads:
"71. 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.
33. 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.4
THE HIGH COURT OF MADHYA PRADESH MCRC No.42642/2019 (BRIJNANDAN DEEWAN AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS )
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 of the 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 IPC such a condition is not necessary.
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."5
THE HIGH COURT OF MADHYA PRADESH MCRC No.42642/2019 (BRIJNANDAN DEEWAN AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS ) At this stage, the counsel for the petitioners seeks permission of this Court to withdraw this application with liberty to file an application under Section 320(2) of Cr.P.C. before the Trail Court.
With the aforesaid liberty, this application is dismissed as withdrawn.
(G.S.Ahluwalia)
Pj'S/- Judge
PRINCEE BARAIYA
2020.01.31
13:20:51 -08'00'