P. Jawahar vs S.S. Pillai

Thangamani, J.—The petitioner herein is the accused in C.C. No. 5525 of 1991, on the file of the XIVth Metropolitan Magistrate, Egmore,

Madras. On January 7, 1991, he issued a cheque for Rs. 6,500 bearing No. 102627 to the respondent drawn on Lakshmi Vilas Bank Ltd.,

Mount Road branch, Madras, in settlement of a prior loan. On February 5, 1991, the respondent presented the cheque for encashment. However,

on February 8, 1991, it was returned unpaid with the endorsement ""refer to drawer"". Thereupon, he sent a notice to the petitioner on February 14,

1991, calling upon him to pay the cheque amount. Though the petitioner received the notice on February 15, 1991, he did not comply with the

demand. Thereupon, the respondent preferred a complaint in the Court of the XIVth Metropolitan Magistrate, Egmore, Madras, and the same

was taken on file as C.C. No. 2496 of 1991. On May 9, 1991, the complaint was dismissed since the complainant was absent. Later on the

respondent presented the cheque for the second time on May 14, 1991. But the cheque was again returned unpaid with the endorsement ""not

arranged for"" on May 15, 1991. The complainant issued the statutory notice u/s 138 of the Negotiable Instruments Act on May 16, 1991. The

petitioner received the notice and failed to make any arrangement to remit the money. The postal acknowledgment which bears the signature of the

petitioner for having received the notice does not mention the date of receipt of the notice. And on June 6, 1991, the complaint preferred by the

respondent was taken on file in the Court of the XIVth Metropolitan Magistrate, Egmore, Madras, as C.C. No. 5521 of 1991. The present

application is to quash the said complaint u/s 482 of the Criminal Procedure Code.

Learned counsel for the petitioner submits that the second presentation by the respondent of the cheque on May 14, 1991, was without his

knowledge and consent. Since the complainant was absent on May 9, 1991, during the hearing of the earlier complaint, the Magistrate had

acquitted the present petitioner u/s 256 of the Criminal Procedure Code. The respondent herein neither challenged the said order of acquittal nor

made any endeavour to restore the complaint on file. So the order of acquittal made on May 9, 1991, has become final. And section 300 of the

Criminal Penal Code is a bar to the maintainability of the second complaint. That section provides that 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 sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.

In Maqbool Hussain Vs. The State of Bombay, , it is held that article 20(2) of the Constitution incorporates within its scope the plea of

autrefois convict"" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribes it

by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as bar to a second

prosecution and punishment for the same offence. In Mohammad Safi Vs. The State of West Bengal, the apex court has pointed out that the

provisions of section 403 of the Criminal Procedure Code, are based upon the general principle of autrefois acquit recognised by the English

courts. The principle on which the right to plead autrefois acquit depends in that a man may not be put twice in jeopardy for the same offence. This

principle has now been incorporated in article 20 of the Constitution.

In Sowbagyam v. Kallalusthi [1971] Crl. LJ 437 in a summons case, the Magistrate acquitted the accused u/s 247 of the old Criminal

Procedure Code for the reason that the complainant was not present on the day of hearing. A single judge of this court took the view that though

the Magistrate could very well have waited for a short time, it cannot be said that the order of the Magistrate is illegal. He acted within his powers

and when the order is not illegal, it would not be right for this court to interfere with it. In Rabindra Dhal and Others Vs. Jairam Sethi, in a summons

case the complaint was dismissed after issue of summons to the accused on account of the absence of the complainant. Held that the order would

amount to one of acquittal irrespective of whether the Magistrate uses the word ""discharged"" or ""acquitted"".

On the basis of these decisions cited by him, learned counsel for the petitioner submitted that the second complaint is barred under the

provisions of section 300 of the Criminal Procedure Code. But this contention is clearly untenable. It is significant to note that the present complaint

is not based on the return of the cheque on February 7, 1991, with the endorsement ""refer to drawer"". As per the averments in the complaint the

cheque was presented twice. Only at the instance of the petitioner the second presentation was made on May 14, 1991. The dishonour of the

cheque on the said second presentation, and the failure of the petitioner to comply with the demand made in the statutory notice constitute a distinct

and separate cause of action. Both are independent offences and that the petitioner has been acquitted on an earlier occasion is no bar to the

maintainability of the second complaint.

Learned counsel for the petitioner next urged that u/s 46 of the Negotiable Instruments Act the making of a cheque is complete only by delivery

actual or constructive. In this case, after handing over the cheque on the first occasion the petitioner had nothing to do with the same. So when it

was represented on May 14, 1991, it was without authority and the failure of the bank to honour the cheque cannot give the complainant any

cause of action. But whether there was proper delivery and the second presentation was as per the instruction of the petitioner are all matters of

evidence which cannot be gone into at this state. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or

otherwise of the allegations made in the complaint. So, there is no scope for invoking the provision of section 482 of the Criminal Procedure Code.

In the result, the petition is dismissed.