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2012 (3) Supreme 185
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Jagdish Singh Khehar, JJ.
Sangeetaben Mahendrabhai Patel — Appellants
versus
State of Gujarat & Anr. — Respondents
Criminal Appeal No. 645 of 2012
Decided on 23-04-2012
Facts of the Case :
Present Appeal has been filed against order passed by High Court wherein it dismissed application filed by the appellant under Section 482 of ‘Cr.P.C.’ for quashing the I.CR and Criminal Case No pending before Judicial Magistrate, on the plea of double jeopardy for the reason that the appellant had already been tried and dealt with under the provisions of Section 138 of ‘N.I. Act’ for the same offence.
Findings of the Court :
A.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.
B. Admittedly, appellant had been tried earlier for offences punishable under provisions of Section 138 N.I. Act and the case was sub judice before High Court. Instantly, he was involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, 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, 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 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. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Hence held that subsequent case was not barred by any of said statutory provisions. Appeal was dismissed.
JUDGMENT
Dr. B.S. Chauhan, J.- This appeal has been preferred against the impugned judgment and order dated 18.8.2011 passed by the High Court of Gujarat at Ahmedabad in Criminal Misc. Application No. 7807 of 2006, by which the High Court has dismissed the application filed by the present appellant under Section 482 of Criminal Procedure Code, 1973 (hereinafter referred as ‘Cr.P.C.’) for quashing the I.CR No. 18 of 2004 and Criminal Case No. 5 of 2004 pending before the Chief Judicial Magistrate, Patan, on the plea of double jeopardy for the reason that the appellant has already been tried and dealt with under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as ‘N.I. Act’) for the same offence.
2. Facts and circumstances giving rise to this appeal are that:
(A) Respondent No. 2 filed a complaint dated 22.10.2003 i.e. Criminal Case No. 1334 of 2003 under Section 138 of N.I. Act on the ground that the appellant had taken hypothecation loan of Rs. 20 lakhs and had not repaid the same. In order to meet the said liability, the appellant issued cheque bearing no. 59447 and on being presented, the cheque has been dishonoured.
(B) Subsequent thereto on 6.2.2004, the respondent no. 2 filed an FIR being I.C.R. No. 18 of 2004 under Sections 406/420 read with Section 114 of Indian Penal Code, 1860 (hereinafter referred as ‘IPC’) with the Sidhpur Police Station for committing the offence of criminal breach of trust, cheating and abetment etc.
(C) In the criminal case No.1334 of 2003 filed under Section 138 of N.I. Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal No. 12 of 2006, before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2 has preferred Criminal Appeal No. 1997 of 2008 before the High Court of Gujarat which is still pending consideration.
(D) Appellant filed an application under Section 482 Cr.P.C., seeking quashing of ICR No. 18 of 2004 and Criminal Case No. 5 of 2004, pending before the Chief Judicial Magistrate, Patan, on the grounds, inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in criminal case under Section 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.
3. Shri Abhishek Singh, learned counsel appearing for the appellant, has submitted that the ICR as well as the criminal case pending before the Chief Judicial Magistrate, Patan, is barred by the provisions of Section 300 Cr.P.C. and Section 26 of the General Clauses Act, 1897 (hereinafter called ‘General Clauses Act’) as the appellant has already been dealt with/tried under Section 138 of N.I. Act for the same offence. Thus, the High Court committed an error in not quashing the said ICR and the criminal case. It amounts to double jeopardy and, therefore, the appeal deserves to be allowed.
4. On the contrary, Shri Rakesh Upadhyay, learned counsel appearing for the respondent no. 2 and Mr. S. Panda, learned counsel appearing for the State of Gujarat, have vehemently opposed the appeal contending that the provisions of Section 300 Cr.P.C. i.e. ‘Doctrine of Double Jeopardy’ are not attracted in the facts and circumstances of the case, for the reason, that the ingredients of the offences under Sections 406/420 read with Section 114 IPC are entirely distinct from the case under Section 138 of N.I. Act, and therefore, do not constitute the same offence. The appeal is devoid of any merit and liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record. The sole issue raised in this appeal is regarding the scope and application of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this
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