Subhodh Mishra vs Vaheed Ali

This application under Section 482 of Cr.P.C. has been filed for quashment of order dated 18/4/2017 passed by the CJM, Ratlam in criminal case

No.1324/2017, by which cognizance for offence under Sections 406 and 420 of IPC was taken.

It appears that the applicant had challenged the order dated 18/4/2017 passed by the CJM, Ratlam in criminal case No.1324/2017 in revision and the

said revision was registered as Criminal Revision No.52/2017, which has been dismissed by the Sessions Judge, Ratlam by order dated 26/8/2017,

however, for the reasons best known to the applicant, he has not challenged the order passed by the revisional court.

It is submitted by the counsel for the applicant that since he has challenged the entire criminal proceedings, therefore, it was not necessary for him to

challenge the order passed by the revisional court.

The submission made by the counsel for the applicant in this regard is misconceived and cannot be accepted. After the order dated 18/4/2017 passed

by the CJM, Ratlam was challenged by the applicant by filing a criminal revision and since the said criminal revision has been dismissed on merits,

therefore, it is clear that the order dated 18/4/2017 passed by the CJM, Ratlam has merged in the order of the revisional court, therefore, it was

necessary for the applicant to challenge the order of the revisional court also.

Apart from that, it is the case of the applicant that initially the applicant was prosecuted for offence under Section 138 of the Negotiable Instruments

Act, as the cheque issued by the applicant had stood bounced. The criminal complaint under Section 138 of the Negotiable Instruments Act had

resulted in conviction of the applicant by order dated 15/3/2018 passed by the JMFC, Ratlam in criminal case No.1094/2012. It is further submitted

that on the similar allegations and in respect of the same cheque, the respondent has now filed a criminal complaint under Section 200 of Cr.P.C. for

offence under Sections 406 and 420 of IPC and in view of Section 300 of Cr.P.C. and Article 20 (2) of the Constitution of India, once a person has

stood convicted, then he cannot be prosecuted for the same offence, as the subsequent prosecution would amount to double jeopardy.

Heard learned counsel for the applicant.

The submissions made by the counsel for the applicant is misconceived because in order to attract the provisions of Section 300 of Cr.P.C., the

accused must prima facie show that the ingredients of the offence in his subsequent prosecution are identical to that of the ingredients of offence of

his previous prosecution / conviction / acquittal. Thus, in short the contention of the counsel for the applicant is that after the conviction of the applicant

for offence under Section 138 of the Negotiable Instruments Act, his subsequent prosecution under Sections 406 and 420 of IPC would amount to

double jeopardy.

The question which has been raised by the counsel for the applicant is no more res integra.

The Supreme Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat (2012) 7 SCC 621 has held as under :

“9. The sole issue raised in this appeal is regarding the scope and application of the doctrine of double jeopardy. The rule against double jeopardy

provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 CrPC;

Section 26 of the General Clauses Act and Section 71 IPC.

Section 300(1) CrPC reads:

“300. Person once convicted or acquitted not to be tried for same offence â€"(1) 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.â€​

Section 26 of the General Clauses Act, 1897 reads:

“26. Provision as to offences punishable under two or more enactments.â€"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.â€​

Section 71 IPC reads:

“71. Limit of punishment of offence made up of several offences .â€"Where anything which is an offence is made up of parts, any of which parts

is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly

provided.â€​

* * * * * * *

In view of the above, 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 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the 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 the identity of the allegations

but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the 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.

* * * * * * *

Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub

judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section

138 of the NI 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 under Section 420 IPC is a serious one as the

sentence of 7 years can be imposed.

In the case under the NI 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

the NI 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 the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary.

There may be some overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is

not barred by any of the aforesaid statutory provisions.

This Court by order dated 20/2/2017 passed in the case of Kailash Chandra Jain Vs. Jai Kumar Jain & Anr. (M.Cr.C. No.1415/2015) at Gwalior

Bench has held as under:-

“Thus, in the light of the judgment passed by the Supreme Court in the case of Sangeetaben (Supra) it is held that merely because the applicant

was acquitted in complaint filed under Section 138 of Negotiable Instruments Act, 1881, the prosecution of the applicant for offence under Section 420

of I.P.C. does not amount to double jeopardy.â€​

No other argument has been advanced by the counsel for the applicant.

Considering the submissions made by the counsel for the applicant, this Court is of the considered opinion that the order dated 18/4/2017 passed by the

CJM, Ratlam in criminal case No.1324/2017 does not require any interference for the reason that the order dated 18/4/2017 passed by the CJM,

Ratlam had subsequently stood merged in the order dated 26/8/2017 passed by the Sessions Judge, Ratlam in criminal revision No.52/2017 and the

order of the revisional court has not been challenged and also on the ground that merely because the applicant has already been convicted for offence

under Section 138 of the Negotiable Instruments Act, therefore, subsequent prosecution of the applicant for offence under Sections 406 and 420 of

IPC on the similar allegations does not amount to double jeopardy because the ingredients of offence under Section 138 of the Negotiable Instruments

Act are different from that of the offence under Sections 406 and 420 of IPC.

Accordingly, the orders dated 18/4/2017 passed by the CJM, Ratlam in criminal case No.1324/2017 and order dated 26/8/2017 passed by the Sessions

Judge, Ratlam in Criminal Revision No.52/2017 are hereby affirmed.

The application fails and is hereby dismissed.