Orissa High Court
Pradeep Kumar Sethy vs State Of Odisha & Another ....... Opp. ... on 23 December, 2020
Equivalent citations: AIRONLINE 2020 ORI 220
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
ORISSA HIGH COURT, CUTTACK
AFR W.P.(CRL.) NO.53 OF 2020
(In the matter of an application under Articles 226 & 227 of the Constitution of
India).
Pradeep Kumar Sethy ....... Petitioner
-Versus-
State of Odisha & another ....... Opp. Parties
For Petitioner : Mr. Milan Kanungo,
(Senior Advocate) along with
M/s. C.Mishra & S.R. Mohanty
For Opp. Party No.1 : Mr. Janmejaya Katikia
Additional Govt. Advocate
For Opp. Party No.2 : Mr. Sarthak Nayak
(for C.B.I.)
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI
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Date of Hearing : 27.11.2020 Date of Judgment : 23.12.2020
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S.K. PANIGRAHI, J.
1. The present Writ Petition preferred under Article 226, 227 read with Article 20(2) of the Constitution of India and Section 300 of the Cr P.C. seeking safeguard of the fundamental rights of the Petitioner. This Writ Petition has been filed challenging the conviction order dated 15.11.2017 passed 2 by the CJM-cum-ASJ, Sambalpur in G.R. Case No.1014 of 2013 in which the petitioner has been convicted under Sections 120-B, 406, 426, 506/34 of the Indian Penal Code and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and other cases arising out of the same transaction at different places in Odisha.
2. Other cases arising out of the same transaction have been lodged at different places in Odisha vide (a) G.R. Case Nos.- Phulbani Town P.S. Case No.19(8) of 2013 corresponding to G.R. Case No.45/2013, Kandhamal; (b) Baripada Town P.S. Case No.52(18) of 2013, Mayurbhanj; (c) Udit Nagar P.S. Case No.78 of 2013, Sundargarh; (d) Keonjhar Town P.S. Case No.125 of 2013 corresponding to G.R. Case No.569 of 2013 Keonjhar; (e) G.R. Case No.129 of 2013, Ganjam; (f) G.R. Case No.732 of 2013, Ganjam; (g) G.R. Case No.982 of 2013, Ganjam,
(h) G.R. Case No.867 of 2013, Ganjam; (i) G.R. No.183/2013, Ganjam; (j) C.T. Case No.2056 of 2013, Bhubaneswar; (k) C.T. Case No.1041 of 2013, Balasore; (l) G.R. Case No. 427 of 2013, Nayagarh respectively .
3. The background germane to better appreciate the instant challenge are that the petitioner herein was the Chairman/Managing Director of one "Artha Tatwa Consultancy Pvt. Ltd" having its registered office at Bhubaneswar as well as the President of Artha Tatwa Multipurpose Co- operative Society Ltd. and Artha Tatwa Multi-State Credit Co-operative Society Ltd.
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4. The Special CJM, CBI, Bhubaneswar in SPE No.42(A) of 2014 has convicted the Petitioner for committing offences u/s. 120-B, 294, 341, 406, 409, 420, 471, 506/34 of IPC read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 vide its order dated 06.04.2017. The petitioner has been in judicial custody since 13.5.2013 and has served a jail term of seven years and has paid a fine of 30,000. The selfsame court has also ordered that M/s. Artha Tatwa Multi-Purpose Co-operative Societies Ltd., M/s. Artha Tatwa Infra India Ltd. and all other associated artificial juristic persons shall pay compensation amount of 250 Crores.
5. Based on the selfsame facts and circumstances, another complaint was registered against the Petitioner at Kharavela Nagar P.S. The CJM-cum- ASJ, Khurda without considering the facts and circumstances as well as the prior conviction of the petitioner for the same offence, took cognizance of above Criminal Case No.145 of 2013 corresponding to C.T. Case No.2056 of 2013 and vide judgment dated 31.07.2017 the petitioner was convicted and sentenced for the same set of offences for seven years and fine up to 75,000 under same provisions as above i.e., Section 120-B, 406, 420 read with Section 34 of the IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
6. The Artha Tatwa Group of Companies which were primarily registered under the Companies Act and the Multi-State Co-operative Societies Act, 4 2002 were engaged in the business of collecting funds from public through various schemes with promise of high returns. The funds were also collected through other companies like Artha Tatwa Enterprises Pvt. Ltd. (ATEPL), Artha Tatwa Infra India Ltd. (ATHL) and Systematix Developers and Builder Pvt. Ltd. (SDBPL). The depositors were promised better returns compared to banks and other financial institutions and being allured money for such bodacious schemes. Subsequently, an income tax raid was conducted which unearthed some irregularities such information got out and spread like wildfire making the depositors panic-stricken.
7. The aforesaid incident brought a grinding halt to the operations of the companies. Subsequently, the Artha Tatwa Group of Companies were accused of cheating the investors and complaints were filed across different Police Stations throughout the State. The substance of the complaints of the depositors is that they had deposited huge sums with Artha Tatwa group of Companies in the hope of getting higher returns as promised under its various schemes as well as cheap flats/plots etc.
8. The Petitioner and his companies/societies in question began to default in payments owed to the depositors, after a point, which caused a huge public outcry across the State. The wrath of the masses precipitated a complete cessation in the activities of the companies/societies. In February 2013 the investigation was conducted by the State Police and apropos the order of the State Government. Realizing the gravity of the 5 issue and on the allegation of the cheating the common investors, the matter was handed over to the E.O.W. (Economic Offences Wing) and charge-sheets were submitted before the Ld. CJM-ASJ, Bhubaneswar corresponding to various FIRs lodged against the petitioner and the Artha Tatwa Group of Companies.
9. Meanwhile, a PIL was filed by one Alok Jena before the Supreme Court of India wherein directions were issued by the apex Court in W.P. (C) No.413 of 2013 tagged with W.P. (C) No. 401 of 2013. The apex Court vide order dated 9.05.2014 directed to transfer the cases registered in different Police Stations in the State of West Bengal and Odisha from the State Police agency to the Central Bureau of Investigation (CBI). The said order mandated to transfer all the cases registered against 44 companies mentioned in the order dated 26th March, 2014 passed in Writ Petition (C) No.413 of 2013. The CBI was also permitted to conduct further investigation into all such cases in which charge sheet had already been filed. Accordingly, the investigation of the Artha Tatwa Group of Companies pertaining eight FIRs lodged in different Police Stations was handed over to Central Bureau of Investigation (CBI) and accordingly R. C. Case No.47/C/2014/KOL dated 5.06.2014 was registered by the Superintendent of Police, CBI, SPE, SCH, Kolkata against the petitioner and 48 other accused for the commission of offences under sections 120- 6 B, 406, 411, 420, 468, 471 of IPC and Sections 4, 5, and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
10. The eight cases as mentioned hereinabove were Badambadi P.S. Case No.5 of 2013 dated 05.01.2013, Kharavel Nagar P.S. Case No. 44(4) of 2013 dated 07.02.2013, Bhanjanagar P.S. Case No.95 of 2013 dated 02.05.2013, Angul P.S. Case No.282 of 2013 dated 03.05.2013, Bargarh Town P.S. Case No.149 of 2013 dated 08.05.2013, Paralakhemundi P.S. No.93 of 2013 dated 25.06.2013, Kujanga P.S. Case No.262 of 2013 dated 19.08.2013 and Cantonment Road P.S. Case No.76 of 2013 dated 24.09.2013. The CBI went ahead by treating the FIRs in the above mentioned eight cases as original FIR vide R.C. No.47/S/2014/Kol. After the completion of the investigation of the case, the CBI filed the charge- sheet No.9 of 2014 dated 11.12.2014 in the court of the Ld. Special CJM, CBI, Bhubaneswar. The matter was heard by the Ld. Special CJM, CBI, Bhubaneswar, Odisha and vide its judgment dated 6.04.2017 held that the charges under Sections 120-B, 406, 411, 420, 468, 471 of IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 stand proved against the petitioner. Consequently, the Petitioner was directed to undergo a sentence of rigorous imprisonment for a period of seven years after he pleaded guilty to the crime and an appeal against the said conviction is pending before this 7 Court. Since May 2013, the Petitioner has remained lodged in Jharpada Special Jail, Jharpada, Bhubaneswar.
11. The principal contention of the Ld. Senior Counsel for the Petitioner, Mr. Milan Kanungo, is that in spite of being convicted of the offences u/s. 120- B, 406, 411, 420, 468, 471 of IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 other proceedings were initiated against the petitioner under different FIRs registered in Bhubaneswar, Khordha, Sambalpur, Nayagarh, Balasore, Kandhamal, Jagatsinghpur, Berhampur and Keonjhar for the same offences which are violative of Section 300 of the Cr.P.C. as well as Article 20(2) of the Constitution of India. His submission is that during the pendency of the aforesaid trial, it was found that another FIR No.145 dated 27.05.2013 had been filed by one Priyabrata Mallick at Kharavela Nagar P.S., Bhubaneswar, Odisha against the petitioner and others connected with the Artha Tatwa Group of Companies. The charge-sheet No.84 dated 29.07.2013 filed in the case reveals the same charges as in the charge-sheet filed in FIR RC No.47/S/2014/Kol. The CJM-cum-ASJ, Khurda took cognizance of the above Criminal Case No.145 of 2013 corresponding to C.T. No.2056 of 2013 and the petitioner was convicted and sentenced for seven years and fine up to 50,000 under the sections of 120-B, 406, 411, 420, 468, 471 of IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Thus, 8 the contention of the petitioner is that he has been prosecuted and punished thrice for the same offences and the same is contrary to the Fundamental rights guaranteed to the petitioner under Article 20(2) of the Constitution of India. It was further submitted that the Petitioner then approached the Hon'ble Supreme Court of India by way of W.P.(Crl.) No.131 of 2017 challenging the second conviction vide order dated 31.07.2017 passed by the CJM-cum-ASJ, Khurda in case No.145 dated 27.05.2013 and also prayed for the quashing of the FIR in FIR No.172(3) of 2013 at Khurda, FIR No.93(20) of 2013 at Sambalpur, FIR No.136 (24) of 2013 at Nayagarh and FIR No.144 of 2013 at Balasore and other above named G.R. numbers which was dismissed by the Hon'ble Supreme Court.
12. Ld. Counsel for the Petitioner further submitted that the petitioner having spent five years in judicial custody since his arrest in May 2013, he was again convicted by the CJM, Sambalpur in FIR No.93 (20) of 2013 vide order dated 15.11.2017 which sentenced him to five years rigorous imprisonment in a separate complaint lodged at Sambalpur P.S. The Hon'ble Court directed that as per Sec. 427 (1) of Cr.PC sentence shall commence after expiry of the sentence in the previous case. The CJM further directed that the petitioner is liable to pay 2,00,000 to the complainant as compensation and in default petitioner would undergo a further rigorous imprisonment for one year. It is with this backdrop that the 9 Petitioner has approached this court seeking relief and protection of the fundamental rights of the petitioner granted to him under the Constitution of India under Article 20(2). The relief sought is the quashing of the aforesaid proceedings pursuant to the conviction in the earlier cases on the premise that they relate to the self-same transaction or same offence in view of the provisions of Article 20(2) of the Constitution and Section 300 of the Cr.P.C.
13. The Ld. Counsel for the Petitioner further contended that under Article 20(2) of the Constitution when a person has been convicted for an offence by a competent Court, the conviction serves a bar to any further criminal proceedings against him for the same offence. The intention of the law makers was that no one ought to be punished more than once for the same offence. To operate as a bar, basic requirement to be satisfied is that the consequential punishment must be for the 'same offence'. In the present petition, all the cases, complaints and charges against the Petitioner are similar and are based on the same factual matrix which form part of the "same transaction". Section 300(1) of 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. He further relied upon Section 220(1) of the CrPC which provides that if one series of acts are so connected together so as to form a part of the same transaction, more offence than one is committed by the same person, he may be charged with and tried at one 10 trial for, every such offence. The word "transaction" means a group of facts so connected together as to involve certain ideas viz unity, continuity and connection in the present case, same offence committed by the petitioner shows a unity of purpose or design that irrevocably points towards the fact that those acts/offences form a part of the same transaction. To buttress his above submissions he heavily relied upon the case of Maqbool Hussain v. State of Bombay1; S.A.Venkataraman v. Union of India2 and State of Bomay v. S.L. Apte and Anr3.
14. The Ld. Counsel for the petitioner also heavily relied on Section 26 of the General Clauses Act, which lays down that" where an act or mission 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" and submitted that the petitioner would be entitled not only for protection under Article 20(2) of the Constitution, but also to the protection of Section 26 of the General Clauses Act. He submitted that the Hon'ble Supreme Court in the case of Venkataraman V. Union of India (supra) held that in order to enable a citizen to invoke the protection of clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. Both the factor must co- 1 AIR 1953 SC 325 2 AIR 1954 SC 375 3 AIR 1961 SC 578 11 exist in order that the operation of the clause may be attracted. In other words, if a person has been prosecuted and punished in a previous proceeding of an offence, he cannot be prosecuted and punished for the same offence again in subsequent proceedings. The Apex Court has held that "while dealing with the issue of double jeopardy under Article 20(2), to operate as a bar the second prosecution and the consequential punishment there under, must be for the 'same offence'. "The crucial requirement therefore for attracting the Article is that the offences are the same i.e., they should be identical. It is, therefore, necessary to mention that in the present case, the same ingredients of the offences in all the matters against the petitioner are identical.
15. The Ld. Counsel for the State, Mr. J. Katikia, AGA, has vehemently opposed the said contentions raised by the Petitioner on the ground that the offences are not forming same offence/transaction but are in fact distinct offences and hence were in no way violative of either Article 20(2) of the Constitution or Section 300 of Cr. P.C. He further submitted that the cases are related to a large scale defalcation of money throughout the state whereby innocent public from different strata of the society including the poor farmers, artisan, pensioners etc. The prayer to quash all the proceedings before the trial and without allowing the victims as well as the complainants to put their sides by way of active participation in the trial 12 process is thoroughly misconceived and against the tenets of Criminal law.
16. He further submitted that the instant Writ petition is not maintainable since there is no illegal confinement. The petitioner has been on judicial custody and it is not a case if illegal detention of an individual. He cited a Supreme Court Judgment " Manubhai Ratilal Patel vs. State of Gujarat4 to buttress his view point. He also relied on State of Jharkhand through SP CBI vs. Lalu Prasad Yadav5 and State of Rajasthan vs. Bhagwan Das Agrawal & ors6 wherein it has been held that "same kind of offences"
is different from the "same offence". In fact, the pending cases against the petitioner are of similar nature but not the same offence.
17. Before proceeding further, we consider it appropriate to take note of the relevant constitutional and statutory provisions at play. Article 20 (2) of the Constitution provides the expression "(2) No person shall be prosecuted and punished for the same offence more than once". Similarly, Section 300 of the Cr.P.C. provides that "a person once convicted or acquitted not to be tried for same offence". Thus, from a bare perusal of the aforesaid it is a clear as a bell that both the provision talks of and will apply in the case of "same offence" and the argument raised by the Counsel for the Petitioner though attractive is sans merit from even an elementary perusal 4 ( 2013) 1 SCC 314 5 (2017) 8 SCC 1 6 (2013) 16 SCC 574 13 of the provisions relied upon. However, since the question of the liberty of an individual is concerned, this court finds it expedient to examine that issue from all possible quarters to see if the Petitioner can be extended the benefit from any quarter possible.
18. The relevant provisions under the Cr.P.C are Sections 218 to 220 which fall under Chapter XVII titled "The Charge" and "sub-chapter "B‟, which deals with "Joinder of Charges". They read as follows:
"218. Separate charges for distinct offences.-(1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub- section (1) shall affect the operation of the provisions of section 219, 220, 221 and 223.
219. Three offences of same kind within year may be charged together.-(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860 ) or of any special or local law:
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Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
220. Trial for more than one offence.-(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub- section (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
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(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860 )."
19. On bare perusal of Section 218 of the Cr.P.C., the legislative mandate that emerges, for every distinct offence of which a single person is accused, there shall be a separate charge, and every such charge shall be tried separately. This Section embodies the fundamental principle of Criminal Law that the accused person must have notice of the charge which he has to meet. The proviso to Sub-Section (1) seeks to carve out an exception to this general rule. This proviso states that the accused may make an application to the Magistrate that the Magistrate may try all or any number of charges framed against the person together, provided the Magistrate is of the opinion that such person is not likely to be prejudiced thereby. Thus, this exceptional course of action may be adopted only upon the accused making an application therefor, and upon the Magistrate forming the opinion that trial of all or some of the charges together would not prejudice the accused. Sub-Section (2) makes it clear that sub-Section (1) shall not affect the operation of Sections 219, 220, 221 & 223, meaning thereby, that the said sections would apply irrespective of: (a) the mandate of sub- Section (1) - that for every distinct offence, of which any person is accused, there shall be a separate charge and every such charge shall be tried separately, and; (b) the order that the Magistrate may pass under proviso to sub-Section (1) of Section 218 of the Cr.P.C. 16
20. Sections 219 and 220 deal with different aspects of the matter. For attracting Section 219, the necessary circumstance is that the same person is accused of more offences than one; the offences of which the person is accused are of the same kind; they are committed within a time frame of 12 months from the first and the last of such offences, and; the said offences may, or may not, be in respect of the same person. The offences need not have any causal link between them for Section 219 to be invoked. They may be completely independent; may have taken place at different points of time within the space of 12 months, and; may involve different and unrelated victims. However, when the accused is the same person and the offences are of the same kind - as defined in Sub-Section (2). Sub-Section (2) explains that offences are of the same kind when they are punishable with the same amount of punishment under the same Section of the IPC, or of any special or local law. In such a situation, the person may be charged with and tried at one trial for any number of them, not exceeding three. For the present, we are not concerned with the proviso to sub-Section (2) of Section 219 and, therefore, we need not dwell upon the same.
21. Section 220, on the other hand, deals with a situation where one series of acts is so connected together to form the same transaction, and in that series of acts which are connected together, more offences than one are committed by the same person. In that situation, he may be charged with 17 and tried at one trial for every such offence. Sub-Section (2) of Section 220 makes it clear that if a person charged with one or more offences of criminal breach of trust, or dishonest misappropriation of property is also accused of committing for the purpose of facilitating or concealing the commission of the offences aforesaid, the offence of falsification of accounts, he may be charged with and tried at one trial for every such offence. Thus, at the same trial, apart from the offence of criminal breach of trust or dishonest misappropriation of property, he may be tried for the offence of falsification of accounts for the purpose of facilitating or concealing the commission of the primary offence of criminal breach of trust, or dishonest misappropriation of property.
22. The principal issue herein is with regard to the applicability of Section 220 of the Cr.P.C. as well as the protection provided under Article 20 (3) of the Constitution to a case of inducement, allurement and cheating of a large number of investors/depositors in a criminal conspiracy. The issue posed is whether the offence of cheating - by acceptance of deposits made by individual investors - and there would be multiple such investors, would all constitute the "same transaction" - because the conspiracy or design may be the same or, whether, the act of cheating - by acceptance of deposits made by different investors, would constitute separate transactions - because each act of inducement, allurement and consequential cheating would be unique. The question is whether such transactions could be 18 amalgamated and clubbed together into a single FIR, by showing one investor as the complainant, and the others as the witnesses. Consequently, convicted under one such case would pre-empt prosecution under the other pending cases.
23. A contention has been raised by the Ld. Counsel for the State that each case of inducement, allurement and cheating of an investor constitutes a separate transaction, mandating registration of a separate FIR for each such transaction. On the aspect as to what forms the "same transaction", or a "separate transaction", it will be profitable analyse of the law contained in Shapurji Sorabji vs. Emperor.7. The Supreme Court's decision in Narinderjit Singh Sahni8 has conclusively settled the legal position, that each transaction of an individual investor, which has been brought about by the allurement of the financial companies, must be treated as a separate transactions, for the reason that the investors/ depositors are different; the amount of deposit is different, and; the period and place when which the deposit was effected is also different. He submits that amalgamation and clubbing of all transactions into one would vitiate the trial. The same would be contrary to Section 218 of Cr.P.C., and to the decision in Narinderjit Singh Sahni (supra).
7 AIR 1936 Bom.154 8 (2002) 2 SCC 210 : AIR 2001 SC 3810 19
24. Per contra the Ld. Counsel for the Petitioner submits that every case of cheating and inducement of an investor constitutes the "same transaction", when such transactions are a sub-species of a single species of transaction - i.e. of a single conspiracy. In this regard, he places reliance upon Ganesh Prasad v. Emperor9, State of A.P. v. Cheemalapati Ganeswara Rao10 and Mohd. Husain Umar Kochra v. K.S. Dalipsinghji and Another11. He further submits that every act of cheating a large number of investors is covered under the umbrella of a single transaction, arising out of a single conspiracy. Resultantly, his submission is that he having been convicted in one case and undergone the punishment thereunder, the other FIRs have no meaning in law and stand vitiated. He also submits that the continuance of the same would be violative of his right under Article 20(3) of the Constitution.
25. To appreciate the aforesaid submission, one has to first understand the meaning of the expression "same transaction" and what does or does not constitute "same transaction", i.e. it constitutes "separate transactions". The expression "same transaction" finds mention in Sections 220 and 223 of the Cr.P.C.
26. We may first refer to the decision of the Division Bench of the Bombay High Court in Shapurji Sorabji (supra), wherein the issue arose whether 9 AIR 1931 PC 52 10 AIR 1963 SC 1850 11 (1969) 3 SCC 429 20 the acts of the accused formed part of the "same transaction" to justify the framing of a common charge and conduct of one trial (by resort to Section 235 of the Code of 1898, which is akin to Section 220 of the Cr.P.C.) or, a "separate transaction". The Court held therein relied upon the views expressed in Mallayya v. King-Emperor12 and also Ramaraja Tevan, In re.13 to hold that in such a situation, as is at hand, the same would necessarily have to be taken to be not a part of the "same" but of a "similar transaction".
27. Tritely, the section itself says, in order to treat a series of acts to be "same transaction", those acts must be connected together in some way. The Courts have indicated various tests to be employed to decide whether different acts are part of the same transaction or not; namely, proximity of time, unity of place, unity or community of purpose or design and continuity of action. The said principle has echoed in the case of Choragudi Venkatadri v. Emperor14 Mallayya v. King-Emperor15 and Emperor v. Sherufalli16 .
28. There may be unity of purpose in respect of a series of transactions or several different transactions, and therefore the mere existence of a common purpose cannot by itself be enough to convert a series of acts 12 (1924) 49 Mad. 74 13 (1930) 53 Mad. 937 14 (1910) 33 Mad.502 15 (1924) 49 Mad. 74 16 (1902) 27 Bom. 135 21 into one transaction. The observations of Abdur Rahim, J. in Choragudi Venkatadri v. Emperor (supra) has succinctly observed that:
"As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public, viz., house-breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years. The purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies bocks of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropriation and another. Each act of misappropriation was a completed act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned, when the misappropriation took place."
The aforesaid observation too was a case where it was alleged that a company was formed with the devious object of defrauding the public in a particular manner and the promoters of the company were charged with 22 several distinct acts of embezzlement committed over the years. It was held nevertheless that acts in question were not parts of the same transaction and could not be joined in the same charge. It is amazing that the aforesaid case which more than a century old has a striking resemblance to the case at hand.
29. Thus, "Continuity of action" must mean that some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end and the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue. Accordingly, for a series of acts to be regarded as forming the "same transaction", they must be connected together in some way, and there should be continuity of action. Though (i) proximity of time; (ii) unity of place and (iii) unity or community of purpose or design have been taken into account to test whether the series of acts constitute the "same transaction", or not, neither of them is an essential ingredient, and the presence or absence of one or more of them, would not be determinative of the issue, which has to be decided by adoption of a common-sense approach in the facts of a given case. In Shapurji Sorabji (supra), the expression "continuity of action" has been explained as "the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end, either by attainment of the object or by being put an end to or 23 abandoned. If any of those things happens and the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue."
30. In Narinderjit Singh Sahni (supra) the Supreme Court was dealing with a batch of Writ Petitions preferred under Article 32 of the Constitution of India alleging impingement of Article 21. The accused Narinderjit Singh Sahni was the Managing Director of M/s. Okara Group of Companies against whom an FIR under sections 420/406/409/120B IPC had been lodged for accepting deposits from large number of people in different schemes and for failure to make repayment in spite of requests. In all, about 250 FIRs were registered throughout the country against the accused. It was contended by the accused that the offence of conspiracy being in the nature of continuing offence, its inclusion would be sufficient to establish the connection of one offence with the other for the purpose of converting all the offences into a single offence, or in the alternative, into the kind of offence which could only have been committed in the course of the "same transaction" within the meaning of Section 220 of the Code. It was argued that all the cases initiated against the petitioner were basically under Sections 420 read with 120-B IPC and as such the question was whether there are numerous cases of cheating or there is only one offence and one case. It was contended that many persons may have been induced but since the act of deception was one i.e., the issuance of the 24 advertisement by the petitioner and his group of Companies even if several persons stood cheated, it was a single offence. Per contra on behalf of the State it was contended that each act of cheating constitutes a separate offence and the attempt on behalf of the accused to say that only one advertisement had resulted into multitude of consequential deprivation of property to the thousands of investors was an endeavour to mislead the court. The Hon'ble Apex Court held as under: -
"......In a country like ours, if an accused is alleged to have deceived millions of countrymen, who have invested their entire life's saving in such fictitious and frivolous companies promoted by the accused and when thousands of cases are pending against an accused in different parts of the country, can an accused at all complain of infraction of Article 21, on the ground that he is not being able to be released out of jail custody in view of different production warrants issued by different courts. Issuance of production warrants by the court and the production of accused in the court, in cases where he is involved is a procedure established by law and consequently, the accused cannot be permitted to make a complaint of infraction of his rights under Article 21. In our considered opinion, it would be a misplaced sympathy of the court on such white-collared accused persons whose acts of commission and omission has ruined a vast majority of poor citizens of this country........"
It was further held that-
25
"60. As regards the issue of a single offence, we are afraid that the fact situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be treated as separate and individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was affected. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence." (emphasis supplied).
31. Thus even Section 220 does not help the Petitioner as will apply where any one series of acts are so connected together as to form the same transaction and where more than one offence is committed, there can be a joint trial. In the present case, as is borne out from the record, different people have been alleged to have been defrauded by the Petitioner and the Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/ transaction.
32. A similar view has been expressed by the Supreme Court in the case of S. Swamirathnam v. State of Madras17 that where there was a single conspiracy spread over several years with the object to cheat members of the public, the fact that during the course of implementation of the 17 AIR 1957 SC 340 26 conspiracy several incidents of cheating took place in pursuance thereof, the several acts of cheating constituted part of the same transaction.
33. A three Judge bench of the Supreme Court in the case of Natwarlal Sakarlal Mody Vs. State of Bombay18, has held that it would tantamount to irregular exercise of discretion, if the Court were to allow an innumerable number of offences, spread over a long period of time and committed by a large number of persons, under the protective wing of all embracing conspiracy, to be put to joint trial, if different offences are committed, or some of the offences can legitimately and properly form a subject matter of separate trial. Although this court has noticed that there have been some cases where a slightly different view has been taken, the same are not being gone into as there, the question of double jeopardy under Article 20 of the Constitution or Section 300 Cr.PC did not arise for consideration.
Section 218 deals with separate charges for distinct offences. Section 219 quoted above, provides that three offences of the same kind can be clubbed in one trial committed within one year. Section 220 speaks of trial for more than one offence if it is the same transaction. In the instant case it cannot be said that cheating is same transaction as the transactions are in different places for different years, different 18 1964 Mah LJ 1 : 1961 SCC OnLine SC 1 27 amounts, different allotment letters, Thus, the provision of Section 221 is not attracted in the instant case.
34. We are of the opinion that separate trials which are being made, are in accordance with the provisions of law, otherwise it would have prejudiced the accused persons. Each instance of cheating would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 Cr.PC. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases it may be common to all the cases but at the same time offences are different at different places, by different accused persons and complainants. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the PC Act, etc. There was conspiracy hatched which was a continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2), obviously, there have to be separate trials. Thus, it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being tried again. Each trial has to be separately held and the accused to be punished separately for the offence committed 28 in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scot-free and commit a number of offences which is not the intendment of law. The concept is of "same offence" under Article 20(2) and Section 300 CrPC. In case distinct offences are being committed there has to be independent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in Section 219. One general conspiracy over a period of time has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons are involved. The view also draws from the decision of the Apex Court in the case of Lalu Prasad Vs. State through CBI (A.H.D.) Ranchi, Jharkhand (supra).
35. In the case of Amitbhai Anilchandra Shah v. CBI (supra) the Supreme Court referred to its earlier decision in C. Muniappan v. State of T.N.19, which explains what has been called a "consequence test" i.e. if an offence which forms part of the second FIR arises as a consequence of the first FIR, then the offences covered by both the FIRs are the same and, accordingly, it will be impermissible in law to register the second FIR. The same shall form part of the first FIR itself. In the present context, it 19 (2010) 9 SCC 567 29 cannot be said that the cheating of the successive complainants/victims undertaken under the same conspiracy is a "consequence" of the offence alleged in the complaint on the basis of which, the sole FIR was registered. It was open to the accused not to proceed to commit the subsequent offence(s), even after committing the offence of hatching a conspiracy to cheat the people and even after cheating one or more persons. Thus, it is held that the subsequent offences have also been rightly registered and proceeded with. The grievance of the Petitioner on that count is also misplaced.
36. There is no continuity in action in respect of the act of cheating of another complainant/victim and as seen hereinabove the real test is to determine whether multiple offences form the "same transaction", or not. By no stretch of imagination can it be said that recurring series of similar transactions are the "same transaction".
37. In view of the aforesaid, it is held that the present Petition filed on behalf of the petitioner is sans merits and thus fails. The Writ Petition accordingly stands dismissed. There shall be no order as to costs.
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(S. K. Panigrahi, J.) Sanju Panda, J. I agree.
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(Sanju Panda, J.) Orissa High Court, Cuttack The 23rd December, 2020/AKK/LNB 30