Madras High Court
S.B.Easwar @ R.Easwar vs B.C.Kesava Murthy on 29 October, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29..10..2014 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl.O.P.No.22881 of 2013 and M.P.No.1 of 2013 1.S.B.Easwar @ R.Easwar 2.K.B.Sudeer Kumar ... Petitioners Vs. B.C.Kesava Murthy ... Respondent Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records in C.C.No.163 of 2012 on the file of the learned Judicial Magistrate No.II, Hosur and to quash the same. For petitioner : Mr.M.V.Krishnan For respondent : Mr.A.Balamurugan ORDER
An interesting question, whether a person acquitted of an alleged offence punishable under Section 138 of The Negotiable Instruments Act, could be subsequently prosecuted and tried for an offence punishable under Section 420 of IPC based on the same transaction in the light of Article 20(2) of The Constitution of India and Section 300 of Cr.P.C. has come up for consideration in this original petition.
2. The 1st petitioner was originally prosecuted by the respondent by way of a private complaint for alleged offence u/s.138 of The Negotiable Instruments Act. In that case, it was alleged that the 1st petitioner herein had borrowed a sum of Rs.15,00,000/- from the respondent herein on 16.07.2009. On the same date, in discharge of such liability, it is alleged that the 1st petitioner issued a post dated cheque dated 16.07.2009 drawn on Indian Bank, Soolagiri Branch bearing Cheque No.422531. When the cheque was presented, it was dishonoured by the bank on two grounds viz., (i) funds insufficient and (ii) signature of the account holder differs. Having received the same, the respondent issued a legal notice to the 1st petitioner under Section 138 of The Negotiable Instruments Act demanding payment of the cheque amount, for which, the 1st petitioner herein issued a reply notice, wherein he denied his liability to pay any amount to the respondent. He had also stated that he had no such bank account and that the cheque was not issued by him. Thereafter, the respondent filed the said private complaint alleging that the 1st petitioner herein had committed an offence punishable under Section 138 of The Negotiable Instruments Act. The learned Judicial Magistrate, Fast Track Court, Hosur took cognizance of the offence under Section 138 of The Negotiable Instruments Act in S.T.C.No.73 of 2011.
3. It appears that thereafter, the trial went on. The respondent examined himself followed by the examination of the Bank Manager. The Manager of the Bank examined on the side of the respondent, deposed that the account relating to the cheque in question was not in the name of the 1st petitioner herein. Thus, it came to light that the cheque in question had not been drawn as against the bank account maintained by the 1st petitioner. Having found the said fact and under the impression that there was no purpose in proceeding with the trial, the respondent filed a petition under Section 257 of Cr.P.C. seeking to withdraw the said case. Accordingly, the learned Magistrate allowed the said petition permitting withdrawal and acquitted the 1st petitioner. At this juncture, it needs to be remembered that the 2nd petitioner was not an accused in the said case.
4. Thereafter, the respondent has filed yet another private complaint in C.C.No.163 of 2012 on the file of the learned Judicial Magistrate No.II, Hosur, against the petitioners herein alleging that they have cheated him.
5. According to the present allegations in the complaint, admittedly, the cheque in question relates to the bank account of the 2nd petitioner. The 1st petitioner has used the said cheque, represented to the respondent that it related to his account and accordingly issued the cheque making his signature. Acting on the said false representation made by the 1st petitioner, it is alleged that he lent money to the tune of Rs.15,00,000/-. Thus, according to the respondent, both the accused have committed an offence punishable under Section 420 of IPC. The learned Magistrate has taken cognizance of the said offence and accordingly, issued summons to the petitioners.
6. Now, the petitioners have come up with this petition seeking to quash the said case in C.C.No.163 of 2012 on the ground that the 1st petitioner was already tried for the very same offence and acquitted and therefore, as per the bar contained in Section 300 of Cr.P.C. and Article 20(2) of The Constitution of India, he cannot be again tried for the same offence. In other words, allowing the trial to go on against him will amount to double jeopardy. So far as the 2nd petitioner is concerned, absolutely, there is no material to make out a case of cheating and thus, the prosecution of the 2nd petitioner is an abuse of process of court.
7. I have heard the learned counsel for the petitioners and the learned counsel for the respondent and also perused the records carefully.
8. The learned counsel appearing for the respondent would submit that earlier the 1st petitioner was tried for an offence under Section 138 of The Negotiable Instruments Act which of course ended in acquittal on the complaint being withdrawn by the respondent. But, the present prosecution is not for the same offence, but for a different offence. He would further add that for an offence under Section 138 of The Negotiable Instruments Act, no mens rea is required, whereas for an offence under Section 420 of IPC, mens rea is required. He would further submit that offences under Sections 138 of The Negotiable Instruments Act and 420 of IPC are not one and the same; they are different offences and so, the bar contained in Section 300 of Cr.P.C. and Article 20(2) of The Constitution of India is not at all attracted.
9. So far as the 2nd petitioner is concerned, according to the learned counsel for the respondent, since his cheque was used by the 1st petitioner in connivance with the 2nd petitioner, the 2nd petitioner is also liable for offence punishable under Section 420 of IPC. The learned counsel for the respondent would rely on a judgement in Sangeetaben Mahendrabhai Patel v. State of Gujarat and another, (2012) 7 SCC 621 2012(7) SCC 61.
10. The learned counsel for the petitioners would submit,in the instant case, since allegations upon which the case under Section 138 of The Negotiable Instruments act was instituted and the case under Section 420 of IPC has been instituted are one and the same and thus, the doctrine of double jeopardy comes into play. He would try to distinguish the above judgement in Sangeetaben Mahendrabhai Patel. According to him, in that case, the earlier case was still pending before the High Court and therefore, when the subsequent prosecution was instituted for offence under Section 420 of IPC, the Hon'ble Supreme Court took the view that the prosecution under Section 420 of IPC did not attract any bar contained in Section 300 of Cr.P.C. because the earlier case under Section 138 of The Negotiable Instruments Act had not ended in acquittal.
11. The learned counsel would further rely on a judgement of the Hon'ble Supreme Court in Bhagat Ram v. State of Rajasthan 1972 (2) SCC 466 in order to substantiate his contention that the principle of res judicata is no more foreign to criminal proceedings. According to him, if once a person is tried for an offence, for the same offence, he cannot be again tried and punished. According to the learned counsel for the petitioners, so far as the 2nd petitioner is concerned, though he was not an accused in the first case, absolutely, there is nothing to show that he had connived with the 1st petitioner. Thus, the original petition deserves to be allowed, the learned counsel for the petitioners contended.
12. I have considered the above submissions carefully.
13. In Bhagat Ram v. State of Rajasthan, (1972) 2 SCC 466, relied on by the learned counsel for the petitioner, the Hon'ble Supreme Court has only declared that the principle of res judicata is not foreign to criminal proceedings. Regarding that legal proposition, there can be no quarrel. Now, applying the said principle, it is to be examined as to whether the acquittal of the 1st petitioner in the earlier case where he had been prosecuted for an offence under Section 138 of The Negotiable Instruments Act is a bar for the subsequent prosecution for an offence under Section 420 of IPC based on the very same transaction.
14. In this regard, before going into the factual aspects of the matter, let us have a quick look into Section 300 of Cr.P.C. which reads as follows:-
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 subsection (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act,1897 (10 of 1897) or of section 188 of this Code.
ExplanationThe dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section
15.Similarly, Article 20(2)of the Constitution of India prohibits a subsequent prosecution for the very same offence when the accused had been earlier tried and punished for the same offence.
16. A plain reading of these two provisions would make it ipso facto clear that a person, who was earlier tried for an offence, either convicted or acquitted in the said case, shall not be prosecuted again for the very same offence. Here, the expression for the same offence needs to be emphasised. This would only show that the bar is to prosecute and try him for the very same offence for which he was earlier tried and either acquitted or convicted. There is no prohibition as such for prosecuting a person for a different offence. In this regard, we may usefully rely on the judgement of the Hon'ble Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and another, (2012) 7 SCC 621 upon which much reliance is placed by the learned counsel for the petitioners.
17. That was a case where a person was initially prosecuted for offence under Section 138 of The Negotiable Instruments Act. He was convicted in the said case. Thereafter, he filed an appeal and the appeal was pending before the High Court. Subsequently, on the same set of facts, yet another complaint was filed alleging that the act of the accused warranted punishment under Sections 406, 420 r/w 114 of IPC. Seeking to quash the said case on applying the bar contained in Section 300 of Cr.P.C. the accused approached the High Court. However, the High Court dismissed the said petition. The accused went on appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court had occasion to extensively deal with Section 300 of Cr.P.C., Section 26 of the General Clauses Act, Section 71 of IPC and Article 20(2) of the Constitution of India together with several previous judgements of the Hon'ble Supreme Court. I feel that I need not elaborate all those judgements referred to by the Hon'ble Supreme Court and it is suffice for me to refer to the conclusion arrived at by the Hon'ble Supreme Court on this legal issue as found in paragraph 33 of the Judgement which reads as follows:-
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. [Emphasis supplied] Again in paragraphs 37 to 39, the Hon'ble Supreme Court has held as follows:-
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 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. 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.
38. 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.
39. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.
18. A glance through the above judgement of the Hon'ble Supreme Court would show that the real test to find as to whether both the offences are one and the same for the purpose of Section 300 of Cr.P.C. and Article 20(2) of the Constitution of India is not the identity of facts, but the identity of the ingredients of the offences. The Hon'ble Supreme Court has further clarified, doubt if any, that the ingredients for offence under Section 138 of The Negotiable Instruments Act Act and Section 420 of IPC are totally different. Therefore, in the instant case, though, the facts may be identical, the ingredients of the offences are different and so, the bar contained in Section 300 of Cr.P.C. and Article 20(2) of The Constitution of India is not attracted. The contention of the learned counsel for the petitioners that in the case dealt with by the Hon'ble Supreme Court the earlier case was still pending before the High Court under Section 138 of The Negotiable Instruments Act and so, the Hon'ble Supreme Court held that the bar under Section 300 of Cr.P.C. and Article 20(2) of the Constitution of India is not attracted is not fairly correct as a reading of the judgement shows that the case under Section 138 of The Negotiable Instruments Act ended in acquittal and what was pending before the High Court was only an appeal.
19. Now, turning to the factual aspects of the case, so far as the 2nd petitioner is concerned, I find absolutely no case against him warranting trial. From the facts, prima facie it is seen that cheque related to the bank account maintained by the 2nd petitioner. It is nowhere stated that the 2nd petitioner had with ulterior motive or in connivance with the 1st petitioner handed over the blank cheque to the 1st petitioner so as to facilitate him to make his signature and to issue the same to the respondent. It is not even the case that the 2nd petitioner had made any representation, either by words or by act making the complainant to believe that the cheque relates to the account maintained by the 1st petitioner and that the 1st petitioner acted on the said representation. From the narration of the facts, it is crystal clear that some how or other, the 1st petitioner came to possess the cheque, filled it up and made his own signature and handed over the same to the respondent. Even if this allegation is found to be true then, the 1st petitioner alone is liable to be punished for offence under Section 420 of IPC. As far as the 2nd petitioner is concerned, as I have already pointed out, there is nothing on record even to make out a prima facie case warranting trial of the 2nd petitioner. Thus, the case against the 2nd petitioner deserves to be quashed, but not against the 1st petitioner.
20. In the result, this criminal original petition is partly allowed in the following terms:-
(i) The case in C.C.No.163 of 2012 pending on the file of the learned Judicial Magistrate No.II, Hosur, is hereby quashed as against the 2nd petitioner alone. (ii) This criminal original petition is dismissed as against the 1st petitioner.
(iii) The trial court may go ahead with the trial of the case as against the 1st petitioner.
Consequently, connected MP is closed.
Index : yes 29.10.2014
Internet: yes
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To
1.The Judicial Magistrate No.II, Hosur.
S.NAGAMUTHU. J.,
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Crl.O.P.No.22281 of 2013
29..10..2014