@JUDGMENTTAG-ORDER
M. Sathyanarayanan, J.@mdashThe Petitioner is the sole accused in C.C. No. 21 of 2007 pending On the file of the Court of District Munsif cum-Judicial Magistrate, Kodumudi and he is facing the prosecution for the alleged commission of the offences u/s 420, 467, 468 and 401 of IPC. This criminal original petition is filed for quashment of the said proceedings.
2. The facts leading to the filing of this petition for quashment are as follows:
Originally, the Respondent herein filed a case in C.C. No. 105 of 2002 on the file of the above said Court to prosecute the Petitioner herein for the alleged commission of the offence u/s 138 of the Negotiable Instruments Act, alleging that the Petitioner/accused borrowed a sum of Rs. 5,00,000/- from the Respondent/complainant by executing a demand promissory note and on the demand made by the complainant, the Petitioner/accused issued a cheque for a sum of Rs. 5,00,000/- dated 22.6.2002 drawn on State Bank of Minisal Branch towards part loan amount. The complainant presented the said cheque dated 22.6.2002 before the ICICI Bank, Kodumudi Branch and the same was re-turned with an endorsement "insufficient funds". The complainant issued a statutory notice dated 16.7.2002 to the accused demanding the amount due and payable under the dishonoured cheque and the accused on receipt of the same, had sent a reply. Since the accused has failed to comply with the terms of the statutory notice, the complainant has filed the above said case.
3. During the pendency of the complaint in C.C. No. 105 of 2002, the Respondent/complainant filed M.P. No. 2228 of 2003 for altering the Section from 138 of the Negotiable Instruments Act to Section 420 of IPC, stating that the bank official who was one of the witnesses examined, had deposed that the account in which the cheque was drawn and signed by the accused does not belong to him and since the act of the accused constitute the commission of the offence u/s 420 of IPC, the complainant prayed for alteration of the Section. The said application was dismissed on 20.4.2004 by the said Court, after contest.
4. Challenging the vires of the said order of dismissal, the complainant filed a revision in Crl. R.C. No. 1213 of 2004 before this Court and the same was admitted and notice was ordered to the Respondent/accused who is the Petitioner in this criminal original petition. How ever, the Respondent/accused, has not chosen to enter appearance.
5. In the interregnum, C.C. No. 105 of2002 filed by the Respondent against the Petitioner/accused u/s 138 of the Negotiable Instruments Act, has ended in acquittal. However, the dismissal of the said case was not brought to the knowledge of this Court at the time of disposal of Crl. R.C. No. 1213 of 2004.
6. This Court vide order dated 31.8.2006, made in Crl. R.C. No. 1213 of 2004, has set aside the order dated 20.4.2004 made in Crl. M.P. No. 2228 of2003 in C.C. No, 105 of2002 and held that prima facie case is made out against the accused to frame charge for the commission of the offence u/s 420 of the IPC, and citing the said reason, allowed tIle criminal revision. Thereafter, the Respondent herein filed a case in C.C. No. 21 of 2007 against the Petitioner/accused herein seeking his prosecution for the alleged commission of the offence u/s 420, 467, 468 and 481 of IPC, which has been taken cognizance and summons were issued and seeking quashment of the said complaint, the present criminal original petition is filed by the accused.
7. The Respondent herein has filed a counter stating that the act on the part of the accused in issuing a cheque knowing pretty well that he is not the holder of the account and the same would constitute the offence of cheating and allied offences and hence prayed for the dis- missal of this Criminal Original Petition.
8. Heard the submissions of Mr. N. Manokaran, learned Counsel appearing for the Petitioner and Mr. B. Vijayakumar, learned Counsel appearing for the Respondent.
9. Learned Counsel appearing for the Petitioner would submit that at the time of disposal of the Crl. R.C. No. 1213 of 2004 filed by the Respondent/complainant, the dismissal of C.C. No. 105 of 2002 filed u/s 13 8 of the Negotiable Instruments Act, has not been brought to the knowledge of this Court and this Court vide order dated 31.8.2006, has allowed the Crl. Revision and held that prima facie materials, available to show that the Petitioner/accused has committed the offence u/s 402 of IPC, and if the attention of this Court was drawn to the dismissal of the complaint filed u/s 138 of the Negotiable instruments Act, this Court would not have allowed the Revision. It is the further submission of the learned Counsel appearing for the Petitioner that the cognisance of the complaint taken by the Court of District Munsif-cum-Judicial Magistrate in C.C. No. 21 of 2007 filed by the Respondent/complainant is hit by Section 300(1) of Code of Criminal Procedure as well as against Article 20(2) of the Constitution of India, as it amounts to double jeopardy. It is the further submission of the learned Counsel appearing for the Petitioner that as per Section 195(b)(ii) of Cr.P.C., no Court shall take cognizance of the offence u/s 463 of the IPC, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or except on the complaint in writing of that Court and admittedly, the complaint in C.C. No. 21 of 2007 was filed by the Respondent/complainant and not by the concerned Court and therefore, the complaint is liable to be quashed.
10. Per contra, Mr. B. Vijayakumar, learned Counsel appearing for the Respondent would submit that the ingredients of the offences u/s 13 8 of the Negotiable Instruments Act and u/s 420 of IPC., operate on different field and therefore, the complaint in C.C. No. 21 of 2007 pending on the file of the Court of District Munsiif-cum-Judicial Magistrate, Kodumudi is not hit by Doctrine of Double Jeopardy. It is further submitted by the learned Counsel appearing for the Respondent that Section 195(b)(ii) of Code of Criminal Procedure is not applicable to the facts of this case as this Court on an earlier occasion in Crl. R.C. No. 1213 of 2004, has categorically found that prima facie materials are available against the Petitioner/accused to prosecute him u/s 420 of IPC, and admittedly, no challenge has been made by way of appeal to the Hon''ble Supreme Court of India by the Petitioner/accused and as such this Criminal Original petition is liable to be dismissed in limine.
11. This Court has carefully considered the submissions made by the learned Counsel appearing on either side and also perused the materials available on record in the form of typed set of documents.
12. The Fundamental Right which is guaranteed in Article 20(2) of the Constitution, enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence". (Per CHARLES, J. in Reg v. Miles 24 QBD 423. To the same effect is the ancient maxim "Nimo Bis Debet Puniri pro Uno Delicto ", that is to aay that no one ought to be twice punished for one offence or as it is sometimes written "Pro Eadem Causa ", that is, for the same cause. This is the principle on which the party pursued has available to him the plea of "autrefois convict"or "autrefois acquit ". The plea of ''autrefois convict'' or ''autrefois acquit'' avers that the Defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the Defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are-sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of ''autrefois acquit'' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (vide 1-1ALSBURY''S LAWS OF ENGLAND, HAILSHAM EDITION, Vol. 9, pp. 152 and 153, para 212) - This principle found recognition in Section 26 of the General Clauses Act, 1897,- 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" and the same is also spirit of Section 300 of Code of Criminal Procedure 1973.
13. In the decision
"The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una at sadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1.973 and Section 71 of the Indian Penal Code."
14. Keeping the bare principles in mind, this Court has analysed the facts of this case. The Respondent herein earlier filed a complaint in C.C. No. 105 of 2002 against the Petitioner/accused u/s 13 8 of the Negotiable Instrument Act alleging the cheque dated 22.6.2002 given by him drawn on State Bank of Minisal Branch, for a sum of Rs. 5,00,000/- on presentation at ICICI Bank, Kodumudi Branch, was returned with an endorsement "Insufficient Funds" and thereafter, a statutory notice was issue for which, the accused had sent a reply and since the accuse failed to comply with the terms of the statutory notice, he filed complaint.
15. The complaint filed u/s 138 of the Negotiable Instruments Act was dis- missed on 6.9.2005, primarily on the ground that the Petitioner/accused has no account with the ban concerned with the disputed cheque and in fact one Jaleel Mohame was having ac- count in State Bank of India, Minisal Branch and hetendered the disputed cheque which has been given by the accused to the complainant. In fact during the pendency of the complaint filed u/s 136 of the Negotiable Instruments Act, the Respondent/complainant fled a petition in Cr. M.P. No. 2228 of 2000 u/s 216(1) and 2 of Code of Criminal Procedure for alteration of the charge u/s 138 of the Negotiable Instruments Act to Section 42 of IPC, and the same was dismissed on 20.4.2004 and challenging the legality of the same, the complainant preferred revision before this Court in Crl. R.C. No. 1213 of 2004. In the Re-vision even though the Respondent therein/accused (Petitioner herein) has received notice, he has not chosen to enter appearance and the said revision was allowed in favour of the complainant on 31.8.2006 holding that there are prima facie materials to show that, the accused has committed offence punishable u/s 420 of IPC. The said order has be- come final as no appeal has been preferred by the accused challenging the said order.
16. Thereafter, the complainant filed a complaint C.C. No. 21 of 2007 u/s 420 of IPC, and allied offences based on the orders passed by this Court in Crl. R.C. No. 1213 of2004. A perusal of the complaint in C.C. No. 21 of 2007 filed u/s 420 of IPC, and allied offences, would disclose that the act of the accused in issuing the cheque drawn on a particular bank in which he does not have any account, constitutes the commission of the above said offences according to the complainant and therefore, he is liable to be punished for the commission of the said offences.
17. The ingredients of an offence of cheating are:
(i) there should be fraudulent or dishonest inducement of a person by deceiving him,
(ii)(a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
18. Section 467 of IPC, speaks about forgery of valuable security, Will etc.
19. For constituting an offence of forgery, fraud is essential element. Forgery or fraud are essentially matters of evidence which could be proved as a fact by direct evidence or inference from true facts as per the decision in
20. Section 468 speaks about forgery for the purpose of cheating and the essential ingredient for constituting an offence of forgery as already stated above is fraud.
21. Admittedly, the cheque issued by the Petitioner was drawn on State Bank of India, Minsal and the said account does not belong to the Petitioner/accused. Therefore, the contention put forth on behalf of the Petitioner/accused that ingredients of the offence have not been made out, in the considered opinion of this Court, lack merits and it can be a subject matter of trial.
22. As regards the submission made by the learned Counsel appearing for the Petitioner that the prosecution of this Petitioner/accused in C.C. No. 21 of 2007 amounts to double jeopardy as he has been tried and acquitted in C.C. No. 105 of 2002, this Court is of the view that the said contention fails for the following reasons:
23. It is the settled position of law mens rea has been excluded as a necessary ingredient for commission of the offence u/s 138 of the Negotiable Instruments Act. The condition precedent for prosecuting a person, u/s 13 8 of the Negotiable Instruments Act are as follows:
(i) the cheques have to be towards payment of an amount of money for the discharge in whole or in part of any debt or any other liability; (2) the cheque is returned by the bank unpaid; (3) the reason for non-payment of the cheque should be insufficiency of funds or amount of cheques exceeding the amount arranged to be paid from the amount. But before the offence can be said to be made out the proviso to the Section requires that: (a) that the cheque must be presented within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque makes demand for the payment of amount of money under the cheque by giving a notice in writing to the drawer of the cheques within 15 days of information received by him from the bank regarding dishonour of the cheques; (c) the drawer of the cheque fails to make payment of the said amount of money within 15 days of the receipt, of said notice.
24. For the purpose of constituting an offence of cheating'' punishable u/s 420 of IPC., the complainant is required to show that the accused had fraudulent or dishonest intention at the times of making promise or representation. Therefore, the complain- ant is obligated to establish and prove that the accused at the time of commission of the offence of cheating had fraudulent or dishonest intention at the time of making promise or representation.
25. However, to constitute the offence u/s 138 of tie Negotiable Instruments Act, the complainant need not prove that the accused had fraudulent or dishonest intention at the inception and that is the vital difference between Section 138 of the Negotiable Instruments Act and Section 420 of IPC.
26. In
It is obvious that on these allegations alone the offence of criminal breach of trust could not be established as they lack any reference to any entrustment or to the dishonest intent which are the main ingredients of the offence of criminal breach of trust. But to this point about the difference in the ingredients f the two offences we shall revert a little later.
Even assuming that the allegations to be found in the two complaints were identical, the question, however, remains whether to attract the ban imposed by either Article 20(2) of the Constitution or Section 26 of the General Clauses Act on a second punishment, it is sufficient that the allegations in the two complaints are substantially the same or whether it is necessary further that the ingredients which constitute the two offences should be identical.
We shall first take up for consideration Article 20(2) of the Constitution whose terms we shall repeat:
20. (2) No person shall be prosecuted and punished for the same offence more than once.
14. To operate as a bar the second prosecution and the consequential punishment thereunder, 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. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the "two complaints but the ingredients of the two of- fences and see whether their identity is made out. It would be seen from a comparison of Section 105 of the Insurance Act and Section 405 of Indian Penal Code (Section 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following:
(1) Whereas u/s 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", u/s 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient, if the manager, director, etc. "obtains possession" of the property.
(2) The offence of criminal breach of trust (Section 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done with a dishonest intention, but Section 105 of the Insurance Act postulates no intention and punishes as an offence the mere with- holding of the property - whatever be the in- tent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made. In these circumstances it does not seem possible to say that the of- fence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the Respondents were prosecuted on the complaint of the company charging them with an offence u/s 105 of the Insurance Act.
27. in V.K. Agarwal, Asstt. Collector of Customs v. Vasantraj Bhagwanji Bhatia and Others, 1988 (2) R.C.R.(Cri) 264: AIR 1988 SC 1106: 1988 SCC (Cri) 679: (1988) 1 MLJ (Cri) 393 the accused was originally prosecuted for the commission of offence punishable u/s 111 read with 135 of the Customs Act (1962), and after trial they were acquitted. Again they were prosecuted u/s 85 of the Gold (Control) Act 1968. The accused raised objection before the trial Court that prosecution u/s 85 of the Gold (Control) Act 1968, was barred in view of their acquittal for the commission of the offences u/s 111 read with 135 of the Customs Act. The trial Court accepted the plea and dropped the prosecution and challenge was made to the order before the Sessions Court which also con firmed the order passed by the trial Court. Thereafter, revision was preferred before the High Court and the High Court of Gujarat con- firmed the order by holding that the trial of the accused for the commission of the offence u/s 65 of the Gold (Control) Act 1968 was barred u/s 403(1) of Code of Criminal Procedure 1898 (Old Code) and challenging the vires of the order passed by the High Court, appeal was preferred before the Hon''ble Supreme Court of India. In the above cited decision, the Hon''ble Supreme Court of India after taking into consideration its earlier decision, State of Bombay v. S.L. Apte (Supra)''and
28. In the considered opinion of this Court, the ratio laid down in the above cited two decisions referred to by the Hon''ble Supreme Court of India are squarely ipso facto applicable to the facts of this case, As already held above, that mens rea is essential element for successful prosecution of the commission of the offence u/s 420 of the IPC. and whereas, such an ingredient is not at all required for the prosecution u/s 133 of the Negotiable Instruments Act. It is also pertinent to point out at this juncture that the complaint u/s 420 of IPC, and allied offences came to be filed in C.C. No. 21 of 2007 in pursuant to the orders of this Court dated 31.8.2006 made in Crl. R.C. No. 1213 of 2004 and even though the Petitioner herein was arrayed as Respondent and even after receipt of notice, he, has not chosen to enter appearance and the revision came to be disposed of on merits in favour of the complainant. The complainant by taking advantage of the orders passed in Crl. R.C. No. 1213 of 2004, has filed the present complaint in C.C. No. 121 of2007. The order dated 31.8.2006 made in Crl. R.C. No. 1213 of 2004 passed by this Court is an inter-party judgment binding between the par- ties and it has also become final as no challenge has been made by the Petitioner/accused. Therefore, even on that ground also, the submission made by the learned Counsel appearing for the Petitioner that the complaint in C.C. No. 21 of 2007 is hit by Section 300(1) of Cr.P.C.. lacks merit and substance.
29. The last point, urged by the learned Counsel appearing for the Petitioner is that the Respondent/complainant is not competent to maintain this complaint in C.C. No. 21 of 2007 in view of the bar u/s 195(b)(ii) of Code of Criminal Procedure
30. As already held above, that this Court vide order dated 31.8.2006, made in Cr!. R.C. No. 1213 of2004, while setting aside the order passed in Crl. M.P. No. 2228 of 2003 filed u/s 215(1) and (2) of Cr.P.C., has held that there are prima facie materials available to frame charge against the ''Petitioner/accused'' u/s 420 of IPC, and in pursuant to the said order only the present complaint in C.C. No. 21 of 2007 has been filed. As the said order has become final, the Petitioner cannot urge that the present prosecution is barred u/s 195(b)(ii) of Code of Criminal Procedure
31. For the above said reasons, this Court find that no merit in this petition and hence it is liable to be dismissed.
32. In the result, this criminal original petition is dismissed.
33. The findings given/observations made above are only for the purpose of disposal of this criminal original petition and the trial Court is required to adjudicate the case on its own merits based upon the quality of the evidence placed before it. Consequently, Crl. M.P. No. 1 of 2008 is closed.
