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2012 (4) TMI 728 - SC - Indian LawsDishonor of Cheque - Section 138 of the NI Act - fraudulent and dishonest intention - double jeopardy or bar of Section 300(1) of Cr.P.C. - conflicting situations - the respondent no. 2 filed an FIR u/s 406/420 r/w Section 114 of IPC for committing the offence of criminal breach of trust cheating and abetment etc. In the criminal case filed u/s 138 of N.I. Act the trial court convicted the appellant. Aggrieved appellant preferred Appeal before the District Judge wherein he has been acquitted. Against the order of acquittal respondent no. 2 has preferred Criminal Appeal before the High Court of Gujarat which is still pending consideration. Appellant filed an application u/s 482 Cr.P.C. seeking quashing and Criminal Case pending before the CJM on the grounds inter-alia that it amounts to abuse of process of law. The appellant stood acquitted in criminal case u/s 138 of N.I. Act. Thus he cannot be tried again for the same offence. In the facts of the case doctrine of double jeopardy is attracted. The High Court dismissed the said application. Hence this appeal. HELD THAT - 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 u/s 406/420 r/w Section 114 IPC. In the prosecution u/s 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 u/s 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. 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. 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. 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.
Issues Involved:
1. Application of the doctrine of double jeopardy. 2. Interpretation of Section 300 Cr.P.C., Section 26 of the General Clauses Act, and Section 71 IPC. 3. Distinction between offences under Section 138 of the N.I. Act and Sections 406/420 IPC. Detailed Analysis: 1. Application of the Doctrine of Double Jeopardy: The appellant argued that being tried under Sections 406/420 IPC after being tried under Section 138 of the N.I. Act amounts to double jeopardy, invoking Section 300 Cr.P.C. and Section 26 of the General Clauses Act. The court examined various precedents, including Maqbool Hussain v. State of Bombay, which emphasized that double jeopardy prevents a person from being tried twice for the same offence. The court reiterated that the doctrine is based on the maxim "nemo debet bis punire pro uno delicto" and applies only if the former and latter offences share identical ingredients. 2. Interpretation of Section 300 Cr.P.C., Section 26 of the General Clauses Act, and Section 71 IPC: The court analyzed Section 300 Cr.P.C., which prohibits retrial for the same offence, and Section 26 of the General Clauses Act, which prevents double punishment for the same act under different enactments. The court cited multiple cases, such as The State of Bombay v. S.L. Apte, to clarify that the identity of the offences, not the allegations, determines the applicability of double jeopardy. The court also discussed Section 71 IPC, which limits punishment for offences comprising several parts, emphasizing that punishment should not exceed that for any single part unless expressly provided. 3. Distinction between Offences under Section 138 of the N.I. Act and Sections 406/420 IPC: The court highlighted that the ingredients of offences under Section 138 of the N.I. Act and Sections 406/420 IPC are distinct. Section 138 deals with dishonor of cheques due to insufficiency of funds, requiring no proof of fraudulent intent. In contrast, Sections 406/420 IPC involve criminal breach of trust and cheating, necessitating proof of mens rea (fraudulent or dishonest intention). The court cited cases like Leo Roy Frey v. Superintendent, District Jail, Amritsar, to illustrate that different offences arising from the same act do not invoke double jeopardy if their ingredients differ. Conclusion: The court concluded that the appellant's subsequent trial under Sections 406/420 IPC does not constitute double jeopardy despite some overlapping facts with the Section 138 N.I. Act case. The distinct ingredients of the offences justify separate trials. Thus, the appeal was dismissed, affirming the High Court's decision.
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