TMI Blog2003 (3) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... se amounts with interest @ 24% per annum. Subsequently the accused issued five post-dated cheques for a total sum of ₹ 1,86,750/- to the complainant. Complainant deposited those cheques in his Bank on 8.9.1999 for realisation. All those cheques were returned unpaid by the Bank of the accused with a memo dated 9.9.1999 with an endorsement of insufficient funds . Thereafter the complainant gave a report to the police stating that the accused induced him to deposit various amounts in the Chit Funds, subsequently issued cheques which bounced and thereby the accused cheated the complainant. After investigation, the police filed a charge-sheet in CC No. 1324 of 1999 on the file of XXII Metropolitan Magistrate, Hyderabad, for the offence punishable under Section 420, I.P.C. After police report, the complainant followed the procedure envisaged under the provisions of Negotiable Instruments Act and as accused did not repay the amount covered by various cheques issued by him, he filed a private complaint in CC.No.737 of 1999 on the file of V Metropolitan Magistrate, Hyderabad. The learned Magistrate had taken cognizance of the said complaint under Section 138 of Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure. The interference with the order of acquittal passed by the Trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the Trial Court has no jurisdiction to try the case or where the Trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been over looked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. 5. There is another decision of the Apex Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh, [1963] 3 SCR 412 . It was held that revisional jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and lead to double jeopardy. 7. The learned Counsel for the accused relied upon only one decision and it is a Full Bench decision of this Court in T.V. Sarma v. R. Meeriah, AIR1980AP219 (FB). This decision deals with the applicability of principle of issue estoppel to criminal proceedings. This principle of issue estoppel is not the same as the plea of double jeopardy of autrefois acquit. The principle laid down by the Full Bench reads as follows : The principle of issue estoppel applies to criminal cases also. The rule of issue estoppel is not the same as the plea of double jeopardy of autrefois acquit. It does not introduce any variation in the Cr.P.C. either in investigation, enquiry or trial. The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution. But this principle would equally apply to an issue of law also. The principle of issue estoppel has been invoked in criminal cases in order to cover cases where the plea of autrefois acquit will not be avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of the Act, prosecution under Section 420, IPC is maintainable in case of dishonour of cheques or post dated cheques issued for the price of goods purchased. It is pertinent to point out that in this decision the crucial question involved in the present case whether the accused can be tried separately for offences punishable under Section 420, I.P.C. and Section 138, Negotiable Instruments Act did not fall for consideration. The only question that fell for consideration is even after introduction of the penal provision in Section 138, Negotiable Instruments Act, a person can be tried for a charge under Section 420, I.P.C. in a case of bouncing of a cheque. The Full Bench held that the said person can be tried for a charge under Section 420, I.P.C. 10. To attract the principle in T. V. Sarma's case (supra), the accused shall satisfy the Court that in the trial in Section 420, I.P.C. case, the same issues of fact and law on which he was tried and findings are recorded arise for trial and decision in the private complaint under Section 138, Negotiable Instruments Act. In my considered opinion for the reasons being mentioned hereunder, accused has failed to satisfy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under Section 420,I.P.C. mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, I.P.C. Therefore, the two offences covered by Section 420, IPC and Section 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr.P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and Section 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
