A. Badharudeen, J
1. Crl.M.C.No.6415 of 2022 is a petition filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C' for short) to quash Annexure A12
complaint pending as S.T.No.792/2018 before the Judicial First Class Magistrate Court-I, Pala. The same petitioner has filed Crl.M.C.No.6421 of
2022 to quash Annexure-A12 complaint pending as S.T.No.783/2018. The identical prayers in these Crl.M.Cs are as under:
“For these and other grounds that may be urged at the time of hearing, this Hon'ble Court may be pleased to quash Annexure-A12 complaint and the
subsequent proceedings in S.T.No.792/2018 pending before the JFCM-I Court Pala.â€
2. The petitioner is the accused in the above cases, where the 2nd respondent is the complainant.
3. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the 2nd respondent and the learned Public Prosecutor.
4. The learned counsel for the petitioner argued that the petitioner herein filed CMP.Nos.436/2020 and 437/2020 respectively in S.T.No.783/2018 and
792/2018 on 27.01.2020, challenging maintainability of the above cases where the petitioner alleged to have committed offences punishable under
Section 138 of the Negotiable Instruments Act (`N.I Act' for short) on the allegation that cheque for Rs.15,00,000/- and Rs.11,00,000/- each in the
above complaints got dishonoured when the same were presented for collection. It is argued further that in this matter admittedly the 2nd respondent
herein/the complainant is a person suffering from mental inability/insanity and in order to prove the same, the learned counsel for the petitioner given
emphasis to Annexure-A1, copy of the medical certificate dated 22.03.2016, issued by Malankara Orthodox Syrian Church Medical College Hospital,
produced by the 1st respondent herein when he canvassed bail in a Narcotic Drugs and Psychotropic Substances Act crime, registered against him, by
filing Annexure-A2 bail application. It is submitted by the learned counsel further that though petitions were filed before the Magistrate Court to hold
an inquiry into the mental state of the 2nd respondent, the same was dismissed by Annexure-A6 order dated 27.08.2021. When revision was filed
before the Sessions Court, the Sessions Court also dismissed the said petition. He also argued that this Court issued a direction earlier to expedite the
trial and disposal of the above cases and, thereafter, this Court extended the time for disposal as per Annexure-A7 order in I.A.No.1/2021 in
O.P(Crl.) No.161 and 163 of 2021. It is also submitted that, earlier, petitions were filed to quash the complaints and the said plea was dismissed by this
Court as per the common order in Crl.M.C.Nos.6475/2018 and 6564/2018 dated 24.01.2019. He also submitted that there are certain negative
observations against the petitioner in the said order, but the same has no binding effect since the petitioner filed S.L.P 4279-4280/2019 before the
Apex Court and the Apex Court dismissed the S.L.P with the observation that “the trial shall be conducted without being influenced by the
observations made by the High Courtâ€.
5. The learned counsel for the petitioner submitted that if mental insanity of the 2nd respondent (complainant) is proved on a proper enquiry, the same
is akin to absence of the 2nd respondent (complainant) in the eye of law, since a mentally ill person is incompetent to enter into contract with the
petitioner. Further if the mental insanity is proved, the issuance of cheque as alleged in the complaint and the transaction dealt with therein would not
have any legal effect, because of the insanity of the petitioner. It is fairly conceded by the learned counsel for the petitioner that even though there is
no provision in the Code of Criminal Procedure to enquire into the mental state of the complainant, the principles governing enquiry contemplated
under Order 32 of the Code of Civil Procedure should be followed in such cases also, though these provisions have no direct application in criminal
proceedings. He has placed a decision on this point, viz. [1965 KHC 173], Mariam & Ors. v. Varghese, where this Court considered the mode of
enquiry in relation to the mental state of the accused. According to the learned counsel for the petitioner, the offence alleged under Section 138 of the
Negotiable Instruments Act is not one in the nature of criminal proceedings and the same can be said to be a `civil sheep' in a `criminal wolf's clothing.
The learned counsel pointed out the said observation of the Apex Court in the decision reported in [2017 (5) KHC 177 : (2018) 1 SCC 560 : 2017 (4)
KLT 444 : AIR 2017 SC 4594], Meters and Instruments (P) Ltd. v. Kanchan Mehta, where, while summarising the objective of allowing
compounding of an offence under Section 138 of the N.I Act, it has been held as under:
“18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element,
compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the
parties or the Court.â€
6. Similarly, the decision reported in [2021 KHC 6120 : (2021) 6 SCC 258 : 2021 KHC OnLine 6120 : 2021 (2) KLT SN 35 : AIR 2021 SC 1308],
P.Mohanraj & Ors. v. Shah Brothers Ispat Private Limited of the Apex Court also has been placed, wherein it was held as under:
“53. A perusal of the judgment in Ishwarlal Bhagwandas [S.A.L. Narayan Row v. Ishwarlal Bhagwandas, 1966 (1) SCR 190 : AIR 1965 SC 1818] would show
that a civil proceeding is not necessarily a proceeding which begins with the filing of a suit and culminates in execution of a decree. It would include a revenue
proceeding as well as a writ petition filed under Art.226 of the Constitution, if the reliefs therein are to enforce rights of a civil nature. Interestingly, criminal
proceedings are stated to be proceedings in which the larger interest of the State is concerned. Given these tests, it is clear that a S.138 proceeding can be said to
be a “civil sheep†in a “criminal wolf's†clothing, as it is interest of the victim that is sought to be protected, the larger interest of the State being
subsumed in the victim alone moving a Court in cheque bouncing cases, as has been by us in the analysis made herein above of Chapter XVII of the Negotiable
Instruments Act.â€
7. Epitomizing the argument, the learned counsel for the petitioner submitted that Annexure-A1 medical certificate shows that the 2nd respondent
herein is a mentally ill person. As such, enquiry into his mental status is absolutely necessary before proceeding for trial and, therefore, the petitions
are liable to be allowed.
8. Whereas the learned counsel for the 2nd respondent vehemently opposed the said contentions. According to the learned counsel, it is true that when
the 2nd respondent was booked in a N.D.P.S Act crime, he had filed Annexure-A2 bail application through his counsel and in the said bail application,
the counsel raised a contention that the 2nd respondent is a person diagnosed to have bipolar affective mental disorder and was under treatment for
episodic psychiatric illness for the last more than 8 years and the same was supported by Annexure-A1 medical certificate. But there is no convincing
materials to show that the 2nd respondent is a person suffering from mental insanity so that he could not control his affairs or he has incapacity to file
the complaints and to contest the cases. He also submitted that in Crl.M.C.Nos.6475/2018 and 6564/2018 also, as per ground No.G, mental insanity is
alleged as the ground for quashing the complaint. This Court as per Annexure-A10 order, dismissed the said plea. The said finding was challenged
before the Apex Court and as per Annexure-A11 order, the Apex Court also upheld the finding of this Court with observation that, the trial shall be
concluded without being influenced by the observations made by the High Court. The learned counsel also argued that as of now the 2nd
 respondent, who is the accused in the N.D.P.S crime, is facing/defending trial as an ordinary person and there are documents to prove the same.
9. The learned counsel for the 2nd respondent placed documents in open court and in so far as receipt of the said documents, the other side did not
raise any objection. However, I directed the learned counsel for the 2nd respondent to produce the documents in the manner provided by law and
accordingly he had filed Crl.M.Appl.No.1/2023 with prayer to receive documents produced as Annexure-R2(a) to R(d) as additional documents. Since
no objection is raised by the other side, those documents are accepted.
10. While crystallising the rival arguments, the vital questions arise for consideration are:
(1) whether there are prima facie materials before this Court to see that the 2nd respondent is a mentally ill person?
(2) If the prayer herein is barred by res judicata or constructive res judicata?
(3) The order to be passed?
11. In this matter, the learned counsel for the 2nd respondent raised a specific contention that this petition is barred by res judicata or by constructive
res judicata on the submission that the petitioner raised contention regarding mental disorder of the 2nd respondent as ground No.H in
Crl.M.C.No.6475/2018, copy of which is produced as Ext.R2(b) and the same was dismissed by this Court as per order dated 24.01.2019. Therefore
the allegation of mental insanity now raised was virtually found against the petitioner. Therefore, the same contention is barred by res judicata or
constructive res judicata.
12. Whereas it is submitted by the learned counsel for the petitioner that res judicata and constructive res judicata have no application in criminal
proceedings and in an appropriate case, the bar under Section 300 of Cr.P.C would apply.
13. The first question to be decided herein is whether the plea of res judicata and constructive res judicata would apply in criminal proceedings? The
second question is whether res judicata or constructive res judicata is substantiated in the instant case?
14. In this connection I am inclined to refer Annexure-R2(b), copy of the memorandum of Crl.M.C.No.6475/2018. Ground No.H raised in Annexure-
R2(b) is as under:
“the 2nd  respondent is having mental disorders, by which he cannot be legally represented before any courtâ€.
15. It is submitted by the learned counsel for the 2nd respondent that the principles of res judicata and constructive res judicata would squarely apply
in criminal proceedings as well, and in support of this contention, the learned counsel for the 2nd respondent placed a decision of this Court reported in
[Manu/KE/0880/2016], P.Reghuthaman v. State of Kerala & Ors.
16. I have perused the above judgment. In paragraph 7 of the judgment, this Court was called upon to answer application of res judicata or
constructive res judicata in criminal proceedings. In para.7 of the judgment, this Court, after referring precedents referred to in para.8, held that
principles of res judicata and constructive res judicata would squarely apply to criminal proceedings also. Para.7 and 8 of the above judgment are
extracted herein:
“7. This Court, while entertaining the matter, had raised a doubt whether the decision rendered by this Court in Raghunathan (supra) will operate as res
judicata or constructive res judicata as far as the present writ petition is concerned. The learned Senior Counsel by relying on t he decision in Superintendent
and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and Others [MANU/SC/0223/1974 : AIR 1975 SC 1002] followed in Devendra &
Ors. v. State of Uttar Pradesh and another [MANU/SC/0941/2009 : (2009) 7 SCC 495], emphatically argued that when change of circumstance is there, the
earlier decision in the Crl.M.C. will not operate as res judicata in the present matter, since much waters have flown under the bridge after the decision in the
Crl.M.C. It has also been argued on the basis of Devendra (supra) that the principles of res judicata have no application in a criminal proceeding and that the
principles of res judicata as adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this
nature.
8. This Court respectfully disagree with the aforesaid argument highlighted by the learned Senior Counsel. This Court had occasion to consider the said question
while dealing with Crl.R.P.No.1512/2015 of this Court. The said question relating to application of principles of res judicata and constructive res judicata was
considered elaborately by the Apex Court in Bhagat Ram and another v. State of Rajasthan and another [MANU/SC/0090/1972 : (1972) 2 SCC 466], which was
followed by His Lordship Justice H.R. Khanna in State of Rajasthan v. Tarachand Jain [MANU/SC/0194/1973 : AIR 1973 SC 2131]. It was repeatedly held that
principles of res judicata and constructive res judicata are squarely applicable to criminal proceedings also. The decisions in Bhagat Ram (supra) and
Tarachand Jain (supra) were clearly approved by the Constitution Bench of the Apex Court, it is no more open for any further debate.â€
17. Therefore, the law is well settled that the principles of res judicata and constructive res judicata would squarely apply in criminal proceedings as
well, and it is equally settled that where a person, who is convicted or acquitted, not to be tried for same offence since the said trial is barred under
Section 300 of Cr.P.C. Further the same is double jeopardy, which is prohibited.
18. Reverting back to the discussion in order to find out whether the prayer herein is barred by res judicata or constructive res judicata. I have perused
Annexure-A10 order of this Court in Crl.M.C.Nos.6475 and 6564/2018 In the said order, in paragraph Nos.7 and 8, this Court observed that the
learned counsel for the petitioner gone to the extent of alleging mental disorder to the 2nd respondent on the strength of a medical certificate handed
over across the bar and contended that the proceedings initiated based on Annexure-A1 complaint would not sustain and the same were liable to be
quashed. But this Court negatived the contention by concluding that in a proceedings initiated under Section 482 of Cr.P.C to quash a complaint, this
Court was required to see whether a prima facie case was made out or not and it was found that there is a prima facie case and, therefore,
complaint could not be quashed.
19. Thus it appears that virtually the plea of mental disorder raised as ground H was considered by this Court, and negatived while holding that the
complaint could not be quashed for none of the reasons raised in Crl.M.C.Nos.6475 and 6564 of 2018. It is interesting to note that the petitioner herein
took the matter before the Apex Court and the Apex Court also dismissed the petition allowing trial of the matters as per the order extracted herein
above. Therefore, the contention raised by the 2nd respondent to the effect that these petitions are barred by principles of res judicata or constructive
res judicata is liable to be accepted and I do so.
20. Deeming that prayers herein are not barred either by res judicata or constructive res judicata, it is relevant to extract the medical certificate, to
which, heavy reliance has been given by the learned counsel for the petitioner. The same reads as under:
“To Whomsoever concerned
This is to certify that Mr.Jacob RV Jose (Hosp No.1258656), S/o.Jose, Ramapuram House, Vellappadu Palai, Kottayam is on treatment from our Psychiatry
department since 31/5/2012. He has h/o episodic psychiatric illness of total duration 8 yrs. Episodes s/o disturbed sleep inability over activity, increased
socialization and making new friends, going off to faraway places and staying in flats and hotels, distractibility and impulsivity, increased money spending on
tobacco smoking amounting to harmful use. He has optimum functioning during the inter-episodic periods.
Patient was diagnosed to have Bipolar Affective Disorder with Comorbit Harmful use of Tobacco. He is currently on T. Divaa OD (1 gram 0-0-1) T. Lithosun SR
(400 mg) 0-0-2 and T Arpizol (15 mg) 0-0-1. He needs to continue medications on a prolonged basis and parodical OP reviews are necessary.â€
21. Similarly, the learned counsel for the petitioner placed reliance on paragraphs 3 and 4 of Annexure-A2, copy of the bail application filed in the
above N.D.P.S case vide Crime No.318/2016 of Ernakulam Town South Police Station. The same is to the following effect:
 “3. It is respectfully submitted that the allegations in the crime are false and innocent in the matter. As a matter of fact, petitioner is diagnosed to have been
suffering from `Bipolar Affective Mental Disorder' and under treatment for episodic psychiatric illness for the last more than eight years. The petitioner had been
under the treatment of Dr.Nisha.A, the Assistant Professor in the Department of Psychiatry, Malankara Orthodox Syrian Church Medical College Hospital,
Kolenchery. The treatment certificate of the Petitioner is produced herewith as Annexure 1. As per the certificate issued, the peculiar behaviour of the petitioner
includes over activity, increased socialization and making new friends, going off to faraway places and staying in hotel rooms and increased money spending.
The said behavior is stated to be `optimum' during the `interepisodic' periods. The petitioner is under regular medication and currently prescribed with T.Divaa
OD (1 gm) 0-0-1, T. Lithosun SR (400 mg) 0-0-2 and T. Arpizol (15 mg) 0-0-1. The true copy of the medical prescription issued to the Petitioner from the Medical
College is produced herewith as Annexure II. The medicines as prescribed above are at heavy dosage and to be regularly consumed by the Petitioner
discontinuance of which would result in his mental break down. Petitioner was required to be under constant medical checkup and attention of the experienced
medical practitioner in the Medical College Hospital who is thorough with his background.
4. Further, the petitioner herein belongs to a reputed family in his locality at Pala and also the younger son of his parents who are retired professors and also the
grandson of Late RV Thomas, the then member of the Indian Constituent Assembly and First Speaker of Travancore-Cochin State Legislative Council. The parents
of the petitioner are the president and secretary respectively of Scrony Educational Charitable Trust which is running an `Arts and Science' College at Kottayam
affiliated to the Mahatma Gandhi University from the year 2012 onwards and presently having 250 students in their rolls. Petitioner is designated as the Vice
President of the governing body of the said trust. The petitioner is not actively participating in the day to day activities of the trust and the college on account of
the mental abnormalities and disorders faced by him.â€
22. It is relevant to note that CMP.Nos.436/2020 and 437/2020 were filed by the petitioner herein to enquire into the mental capacity of the 2nd
respondent, based on Annexure-A1 and A2. As per Annexure-A6 order, the learned Magistrate dismissed the application holding that the medical
certificate produced before the Sessions Court certifying that the petitioner was diagnosed to have been suffering from Bipolar Affective Mental
Disorder and comarbid harmful use to tobacco and he is currently on T.Divaa OD and he needs to continue medication on a prolonged basis etc.,
cannot be considered for the purpose of holding an inquiry and the petitioner's right to adduce evidence against the 2nd respondent complainant with
regard to the said contention was reserved while dismissing the application. When the same was challenged before the Sessions Court, revision also
was dismissed as per Annexure-A11 order.
23. In this connection, Annexure-R2(a) produced by the learned counsel for the 2nd respondent also assumes significance. The same would go to
show that the 2nd respondent is an accused in S.C.No.832/2016 on the files of the VIIth Additional District and Sessions Court, Ernakulam.
Annexure-R2(a) depicts the proceedings from 11.01.2017 till 11.01.2023. Annexure-R2(a) would go to show that the 2nd respondent, being the 2nd
accused in the above case, has been before the VIIth Additional District and Sessions Court, Ernakulam to face trial and where he did not raise a
contention that he had any mental insanity so as to face trial and now the matter stands posted for evidence.
24. Similarly, it has to be held that Annexure-A1 medical certificate produced by the then counsel for the 2nd respondent, while canvassing regular bail
in a serious criminal offence, shall not be the foundation to hold that the 2nd respondent is a person having mental insanity, as contended by the
petitioner herein. Therefore, the prayer herein to quash the complaints on the said ground, after suffering defeat before this Court in an earlier
Crl.M.C, which was upheld by the Apex Court, is found to be unwarranted, rather not justified.
For the above reasons, these petitions must fail and are accordingly dismissed.
