Madhya Pradesh High Court
Ravi Shankar Gupta vs Babulal Dwivedi on 18 June, 2019
1
HIGH COURT OF MADHYA PRADESH AT
JABALPUR
Misc. Criminal Case No.34292 of 2018
Ravi Shankar Gupta........................................Petitioner
Versus
Babulal Dwivedi..............................................Respondent
For the Petitioner : Mr.Amit Dubey, learned
Ld. Advocate
For the Respondent : Mr. Jagannath Tripathi,
Ld. Advocate
Reserved On: 22/04/19
Delivered On: 18/06/19
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Present:
Mr. Justice Atul Sreedharan
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ORDER
(18/06/2019) The present petition has been filed against the order dated 28/07/2018 passed by the Court of the Sessions Judge, Anuppur, in Criminal Revision No.17/2018 whereby the revision preferred by the Petitioner against the order taking cognizance dated 03/07/2018 passed by the 2 Court of the learned Judicial Magistrate First Class, Anuppur, was dismissed, thereby sustaining the order summoning the Petitioner to stand trial.
2. The Petitioner was an accused in a case under section 138 of the Negotiable Instruments Act, 1881. The allegation in the said complaint was that the Respondent had given the petitioner an amount of rupees eight lacs for the supply of cement and iron rods, which the Petitioner did not deliver and when the complainant demanded the refund of rupees eight lacs, the Petitioner issued a cheque bearing No. 045326 dated 01/03/16 drawn on Axis Bank, Bhilai, Chhattisgarh. The said cheque was dishonoured for insufficient funds. After giving legal notice to the Petitioner on 31/03/16, the Respondent filed a complaint case against the Petitioner on 11/04/16. The trial court proceeded and recorded evidence and thereafter vide order dated 28/04/17 passed in Criminal Case No.270/2018, acquitted the Petitioner on the ground that the complaint was filed before the statutory period and, therefore, no cognizance could have been taken.
3. Against the said order, the Respondent preferred a petition under section 482 Cr.P.C. which was registered before this court as M.Cr.C. No.8358/2017 and was withdrawn on 03/07/17 by an order of this court granting liberty to the Respondent to file a fresh complaint. Thereafter, the Respondent filed a fresh complaint on 06/07/17 under section 138 read with 144 of the Negotiable Instruments Act. The Petitioner filed a written objection that since the Petitioner was already tried, prosecuted and acquitted for the said offence then, as per the provisions of section 300 Cr.P.C, he was protected by the rule of autrefois acquit and, 3 therefore, could not be tried again. The learned trial court rejected this objection against which the Petitioner went to the court of sessions which is also rejected by the impugned order.
4. The crux of the Petitioner's argument is that for the same offence, a second complaint could not have been made as the Petitioner was tried by a court of competent jurisdiction, evidence was and finally the Petitioner was acquitted on the ground that the complaint was preferred prematurely before the expiry of 15 days from the date of notice.
5. Per contra, learned counsel for the Respondent has argued that the rule of autrefois acquit will not apply in the present case as in the first case, the complaint was prematurely filed under the Negotiable Instruments Act. In other words, there was no offence that had been committed by the Petitioner on the date when cognizance was taken in the first case.
6. Learned counsel for the Respondent further submitted that the offence only attains fruition where after the expiry of fifteen days post issuance of demand notice, the accused does not make the payment of the cheque amount, then after the period of 15 days the offence is committed.
7. Learned counsel for the Respondent has relied upon the judgment of the Supreme Court referred in Yogendra Pratap Singh v. Savitri Pandey AIR 2015 SC 157. In the said judgment, the Supreme Court held that a complaint that is filed before the expiry of fifteen days from the date on which the notice has been served is no complaint in the eyes 4 of law and no cognizance of the offence can be taken on the basis of such complaint.
8. Section 300 Cr.P.C. provides that where the person who has once been tried by a court of competent jurisdiction for an offence has been convicted or acquitted of such an offence shall, as long as the conviction or acquittal remains in force, be not 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. A plain reading of section 300(1) Cr.P.C makes it very clear that for the protection to be available to the accused, he ought to have been tried for an offence. Offence is an act which is prohibited by law the commission of which is punishable by fine or imprisonment or both. As per section 190 cognizance is taken of an offence by the Magistrate upon receiving a complaint on facts (as in a case of an offence under section 138 of the Negotiable Instruments Act), upon a Police report of such facts (under section 173(3)(2) Cr.P.C) and upon information received from any person other than a Police Officer or upon the personal knowledge of Court itself, that such an offence has been committed.
9. The undisputed fact of this case is that the first trial against the Petitioner had ended in an acquittal only on account of the complaint having been filed before the end of 15 days after the receipt of notice by the accused. In other words, when the complaint was filed, which led to the first trial, an offence under section 138 of the Negotiable Instruments Act had not attained fruition as the accused still had the 5 time to make the payment of the cheque amount. It is only after the expiry of fifteen days during which the accused does not repay the money demanded, that the offence under section 138 could have been said to have been committed.
10. Thus, in the first trial against the Petitioner the error was on the part of the learned trial court for having taken cognizance when no offence had been committed. Thus, having proceeded with the entire trial in a case where there was no offence committed on the date on which the cognizance was taken, the first trial against the Petitioner was a mis- trial as a court can only take cognizance of an offence which is disclosed by the facts and circumstances in the complaint to have attained commission on the date on which the Magistrate is called upon to take cognizance. Therefore, the protection under section 300 Cr.P.C. awarded for acquittal is not available to the Petitioner as the first trial was never a trial but a mis-trial and was a proceeding that was void ab initio without any sanction of the law. The rule of law is that no once can be penalised for an act of court which is enshrined in the maxim actus curiae neminem gravabit. As the trial proceed in the first case as the Trial Court made an error in taking cognizance of a non-offence, the Respondent cannot be made to suffer the consequences. Therefore, this petition lacks merit and is dismissed. However, the Petitioner shall have the liberty to take all the defences available to him before the Ld. Trial Court at the appropriate stage.
(ATUL SREEDHARAN) JUDGE ss SHYAMLEE SINGH SOLANKI 2019.06.27 12:41:29 +05'30'