Madhya Pradesh High Court
Kailash Chandra Jain vs Jain Kumar Jian on 20 February, 2017
1 MCRC 1415/2015
(Kailash Chandra Jain vs. Jai Kumar Jain & Anr.)
20.2.2017
Shri R.K. Sharma, counsel for the applicant.
Shri J.P. Mishra, counsel for the respondent No.1.
Shri Girdhari Singh Chauhan, Public Prosecutor for the respondent No.2/State.
This petition under Section 482 of Cr.P.C. has been filed against the order dated 10-12-2014 passed by 3 rd A.S.J., Shipuri in Cr.r. No. 31/2012 by which the order dated 19-9-2011 passed by J.M.F.C., Shivpuri in Criminal Case No. 1430 of 2011 has been affirmed.
The necessary facts for the disposal of the present application in short are that the respondent no. 1 had filed a criminal complaint against the applicant for offences under Sections 420,406,120B of I.P.C. against the applicant and the son of the applicant namely Himanshu Jain. It was alleged by the respondent no.1/complainant that the applicant is running a firm in the name and style M/s Nemichand Kailashchandra Jain. The said firm was appointed as C&F for Pepsi Cold drinks and therefore, the said firm granted dealership of Pepsi cold drinks to M/s Jain Sales Agency, Shivpuri which is a proprietorship firm of the respondent no.1/complainant. That the complainant had deposited Rs. 50,000 by way of security to the firm of the applicant. With the passage of time, the respondent no.1/complainant decided not to continue with the dealership therefore, requested the applicant for settlement of accounts. The accounts were settled between the parties, and the applicant who had initially projected himself to be the sole proprietor of M/s Nemichand Kailash Chand Firm, accepted that his firm has to pay Rs. 4,25,088/- to 2 MCRC 1415/2015 the firm of respondent no.1/complainant and accordingly three cheques of Rs. 50,000, 2 lacs and 1,75,088 were given by the applicant. Out of three cheques, one cheque of Rs. 1,75,088/- was returned back by the bank in view of the stop payment instructions given by the firm of the applicant. Therefore, the respondent no.1/complainant, filed a complaint under Section 138 of Negotiable Instruments Act. In that proceedings, the applicant disclosed for the first time, that in fact his son Himanshu Jain, is the proprietor of M/s Nemichand Kailashchandra Jain and the cheque in question was in fact signed and issued by his Himanshu Jain, whereas till then, the applicant was projecting himself to be the proprietor of the firm. The complaint under Section 138 of Negotiable Instruments Act was rejected on the ground that the cheque was signed and issued by Himanshu Jain and he was not made a party.
Thereafter, the present complaint was filed for the offences under Section 420,406,120B of I.P.C. on the ground that earlier the applicant was projecting himself as the proprietor of the firm and in fact the applicant had settled the accounts and had given the cheque. A police report was made but since, the police did not take any action, therefore, the complaint was filed.
The Trial Court by order dated 19-9-2011 took cognizance of offence against the applicant for offence under Section 420 of I.P.C. and did not take cognizance against Himanshu Jain.
Being aggrieved by the order of the Magistrate, the applicant filed a criminal revision, which too has suffered dismissal by order dated 10-12-2014. Hence, this petition.
It is contended by the counsel for the applicant that 3 MCRC 1415/2015 since, the complaint filed by the respondent no.1/complainant under Section 138 of Negotiable Instruments Act was dismissed, therefore, the present complaint for offence under Section 420 of I.P.C. is not maintainable, as the prosecution of the applicant would amount to double jeopardy which is violative of Article 20 of the Constitution of India as well as Section 300 of Cr.P.C. It was further submitted that even if the entire allegations as made in the complaint are accepted in too, no offence under Section 420 of I.P.C. would be made out. The cheque was signed by his son and he had merely given the cheque to the respondent no.1/complainant and thus, even otherwise, he has not committed any offence. To buttress his contentions, the Counsel for the applicant relied upon Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., AIR 2011 SC 641, G. Sagar Suri & Ano. v. State of U.P. & Ors., (2000) SCC (Cri) 513, Ashish v. State of M.P., 2015(1) MPLJ (Cri) 374 and Rakesh Gupta v. State of M.P., 2015(2) MPLJ (Cri) 157.
Per contra, it is submitted by the Counsel for the respondent no. 1, that merely because the applicant has been acquitted under Section 138 of Negotiable Instruments Act, it would not mean that he cannot be prosecuted for offence punishable under Section 420 of I.P.C. and the prosecution of the applicant does not amount to double jeopardy. The Counsel for the respondent no.1 relied upon judgment of Supreme Court in the case of Sangeetaben Mahendrabhai Patel vs. State of Gujarat & Anr. reported in (2012) 7 SCC 621.
Heard, the learned Counsel for the parties.
4 MCRC 1415/2015The first contention made by the Counsel for the applicant that after the acquittal of the applicant for offence under Section 138 of Negotiable Instruments Act, his prosecution under Section 420 of I.P.C. would amount to double jeopardy is concerned, the same is misconceived and is hereby rejected. The Supreme Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat (2012) 7 SCC 621 has held as under :
"9. The sole issue raised in this appeal is regarding the scope and application of the 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 CrPC; Section 26 of the General Clauses Act and Section 71 IPC.
10. Section 300(1) CrPC 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 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."5 MCRC 1415/2015
12. Section 71 IPC 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 of his offences, unless it be so expressly provided."
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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 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the 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 the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the 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.
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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.6 MCRC 1415/2015
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.
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. Thus, in the light of the judgment passed by the Supreme Court in the case of Sangeetaben (Supra) it is held that merely because the applicant was acquitted in complaint filed under Section 138 of Negotiable Instruments Act, 1881, the prosecution of the applicant for offence under Section 420 of I.P.C. does not amount to double jeopardy.
The next contention of the Counsel for the applicant is that the allegations made against the applicant do not prima facie make out a case for offence under Section 420 of I.P.C.
Section 420 reads as under :
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either 7 MCRC 1415/2015 description for a term which may extend to seven years, and shall also be liable to fine."
It is submitted by the Counsel for the applicant that at the time of handing over the cheque, the applicant had not induced the respondent no.1 to deliver any property, therefore, it cannot be said that any offence under Section 420 of I.P.C. is made out.
On the contrary, it was submitted by the respondent no. 1/complainant that the respondent no. 1/complainant was appointed as Dealer for Pepsi Cold drink for Shivpuri District and when the respondent no. 1/complainant expressed his inability to continue with the dealership and requested for settlement of accounts, the accounts were calculated by the applicant himself and had informed that he is liable to pay Rs. 4,25,088/- and therefore, he had given 3 cheques out of which one was returned back by the Bank under the instructions of Stop Payment. Therefore, it was contended by the Counsel for the respondent no. 1/complainant that during the currency of dealership, the applicant had taken certain amount from the complainant which ultimately remained unutilized and since, the applicant himself had admitted his liability to return the said amount and by withholding an amount of Rs. 1,75,088 by giving the instructions of stop payment, the applicant has infact committed the offence of cheating.
If the allegations as contained in the criminal complaint are considered then it would be clear that Firm M/s Nemichand Kailashchandra was the C&F of Pepsi Cold Drinks, whereas the respondent no.1/complainant was appointed as dealer by the Firm M/s Nemichand Kailashchandra. Thus, it was clear that the cold drinks were 8 MCRC 1415/2015 being supplied by the Firm to the respondent no. 1/complainant in the capacity of C&F. Once, the complainant had decided not to continue with the dealership, then the applicant himself after settlement of accounts admitted that a total amount of Rs. 4,25,088 is outstanding against his firm and therefore, three cheques were given. Thus, it is not a case that at a subsequent stage there was a failure on the part of the applicant to keep up his promise. The complainant witnesses in their statements under Section 200 and 202 of Cr.P.C. have stated that only after the cheque were given by the applicant, the remaining stock whether empty or filled was returned. Therefore, it is clear that with an intention to induce the respondent no. 1 to return the remaining stock, the cheques were given out of which in respect of one cheque instruction to stop payment was issued. Thus, it is clear that prima facie offence under Section 420 of I.P.C. is made out. Merely because the transactions between both the firms in the capacity of C&F and Dealer were business transactions, then that by itself would not be sufficient to dismiss the complaint on the ground that the dispute is of civil in nature. The Supreme Court in the case of Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, has held as under :
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [(1995) 6 SCC 194], 9 MCRC 1415/2015 Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar vs. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan vs Vijay Singh [(2001) 8 SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the 10 MCRC 1415/2015 basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
Thus, this Court is of the considered opinion that prima facie offence punishable under Section 420 of I.P.C. is made out. However, the observations of this Court should not be understood as any finding on a question. The observations have been made in order to consider the submissions made by the Counsel for the applicant. Therefore, the Trial Court should decide the case on the basis of the evidence which would come on record.
Accordingly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge