1. Investment for land development — Cheque dishonour — Parallel proceedings under Section 138, NI Act and Sections 120B, 406, 420, 34, IPC. (Para 2 , 3 , 4 )
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2022 Supreme(SC) 665
SUPREME COURT OF INDIA
S. ABDUL NAZEER, J.K. MAHESHWARI, JJ.
J. Vedhasingh - Appellant
Versus
R.M. Govindan & Ors. - Respondent
Criminal Appeal No. of 2022 Arising Out Of SLP (Crl.) No.2864 of 2019
Decided on : 11-08-2022
Important Points
IMPORTANT POINT
Judicial Decorum – Judicial decorum demands that if judgments passed by two-Judges’ Bench of equal strength are conflicting, issue of law involved must be referred to a larger Bench as the same is desirable to avoid confusion and maintain consistency of law.
Judicial Decorum – Judicial decorum demands that if judgments passed by two-Judges’ Bench of equal strength are conflicting, issue of law involved must be referred to a larger Bench as the same is desirable to avoid confusion and maintain consistency of law.
Subject
Criminal Law - Double Jeopardy
Act Referred
Headnote
(A) Indian Penal Code, 1860 – Sections 120B, 406, 420 and 34 – Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Section 482 – Conspiracy, criminal breach of trust and cheating – Dishonour of cheque – Common intention – High Court by impugned order allowed quashing petition and quashed proceedings taking into consideration that proceedings under Section 138 of N.I. Act pertaining to same cause of action and on same facts and grounds are pending, prior to registration of present proceedings – Question, whether on similar set of allegations of fact accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by prior conviction or acquittal and bar of Section 300(1) Cr.P.C. would attract for such trial, referred to Larger Bench. (Paras 5, 12 and 13)
(B) Judicial Decorum – Conflicting View – If any issue is decided in a previous judgment by a Bench of same strength, conflicting view in subsequent judgment should not be rendered on pretext that issue has not been raised or considered in previous judgment – Judicial decorum demands that if judgments passed by two-Judges’ Bench of equal strength are conflicting, issue of law involved must be referred to a larger Bench as the same is desirable to avoid confusion and maintain consistency of law. (Para 12)
Facts of the case:
Instant appeal has been filed assailing the final order dated 06.12.2018 passed by the High Court of Madras in CRL.O.P. No. 6750 of 2017, whereby the High Court allowed criminal petition filed by the respondents no.1 to 4 under Section 482 of Code of Criminal Procedure, 1973 and quashed proceedings under Sections 120B, 406, 420 and 34 of Indian Penal Code, 1860.
Findings of Court:
Judgments cited by the respective parties are conflicting, however, to avoid any further confusion and to maintain consistency, it is deemed appropriate to refer this issue for decision by larger Bench.
Result : Matter referred to Larger Bench.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates appeared:
For the Petitioner(s): Mr. S. Nagamuthu, Sr. Adv. Mr. Y. Arunagiri, Adv. Mr. P. Soma Sundaram, AOR Mr. G.R. Vikash, Adv. Mr. A.S. Vairawan, Adv. Mr. R. Sudhakaran, Adv. Mr. Subrahmanya Banu, Adv. Ms. Shalini Mishra, Adv. Ms. Puspita B.,Adv.
For the Respondent(s): Mr. T. Harish Kumar, AOR Mr. Navneet Dugar, Adv. Mr. Raghunatha Sethupathy B., Adv. Mr. Prasanth Padmanaban, Adv. Mr. Subham Kothari, Adv.
For the Petitioner(s): Mr. S. Nagamuthu, Sr. Adv. Mr. Y. Arunagiri, Adv. Mr. P. Soma Sundaram, AOR Mr. G.R. Vikash, Adv. Mr. A.S. Vairawan, Adv. Mr. R. Sudhakaran, Adv. Mr. Subrahmanya Banu, Adv. Ms. Shalini Mishra, Adv. Ms. Puspita B.,Adv.
For the Respondent(s): Mr. T. Harish Kumar, AOR Mr. Navneet Dugar, Adv. Mr. Raghunatha Sethupathy B., Adv. Mr. Prasanth Padmanaban, Adv. Mr. Subham Kothari, Adv.
Table of Contents
2. Whether parallel prosecution under IPC is barred by Section 300(1), CrPC when proceedings under Section 138, NI Act are pending on similar facts. (Para 6 , 7 )
3. Conflicting views exist between benches of equal strength regarding whether different ingredients of offences allow parallel trials despite overlapping facts. (Para 8 , 9 , 10 , 11 , 12 )
4. Conflicting judgments by benches of equal strength on a legal issue must be referred to a larger bench to maintain consistency and avoid confusion. (Para 12 )
5. Matter referred to a larger bench for decision on the conflict of law. (Para 13 )
6. Can a person be tried for both Section 138 of the NI Act and Sections 406/420 of the IPC on the same facts?
There are conflicting judicial views. One view holds that different ingredients, such as the requirement of mens rea in IPC offences, allow parallel trials. Another view holds that Section 300(1) CrPC bars prosecution for different offences if they are based on the same facts. (Para 8 , 10 , 12 )
7. What is the scope of Section 300(1) of the CrPC compared to Article 20(2) of the Constitution?
Section 300(1) CrPC is wider than Article 20(2) of the Constitution. While Article 20(2) prohibits prosecution and punishment for the same offence more than once, Section 300(1) CrPC prohibits trial for the same offence or any other offence based on the same facts. (Para 10 )
8. How should a court resolve a conflict between two judgments delivered by benches of equal strength?
Judicial decorum requires that if judgments passed by two-judges' benches of equal strength are conflicting, the issue of law involved must be referred to a larger bench to avoid confusion and maintain consistency of law. (Para 12 )
JUDGMENT :
J.K. Maheshwari, J.
Leave granted.
2. The instant appeal has been filed assailing the final order dated 06.12.2018 passed by the High Court of Madras in CRL.O.P. No. 6750 of 2017, whereby the High Court allowed the criminal petition filed by the respondents no.1 to 4 under Section 482 of Code of Criminal Procedure, 1973 (for short “Cr.P.C”) and quashed proceedings under Sections 120B, 406, 420 and 34 of the Indian Penal Code, 1860 (for short “IPC”) being C.C. No. 33 of 2017 pending before Judicial Magistrate Court No. III, Coimbatore.
3. The brief facts necessary for the instant appeal are that the appellant herein was working as a Civil Engineer in Saudi Arabia. On his return back to India in the year 2011, he purchased a site from respondent no.2 who is the father of respondent no.1 in Coimbatore. Apart from this, the respondents owned 7 other house sites in total in V.C.K. Layout, Trichy Road, Coimbatore City, which all were mortgaged to Tamil Nadu Industrial Investment Corporation, way back from 12.10.2006. Appellant contended that the respondents approached and asked him to invest money for the development of the land of the said 7 sites and assured that profit shall be divided amongst the appellant and respondents. Pursuant to it a profit-sharing agreement was executed between the parties. The appellant made the investment of a sum of Rs.62,32,754/, but neither profit was shared nor any piece of land was given to the appellant. Consequently, the appellant asked to repay the amount. Under guise of assurance of repayment by respondent no.1, the appellant did not lodge any criminal prosecution as per his request. The respondent no.1 handed over a cheque dated 09.09.2015 for an amount of Rs.87,00,000 in lieu of repayment of principal sum and interest.
4. On presenting the said cheque to the bank it was dishonored on account of insufficient funds on 09.09.2015. Being aggrieved, a demand notice was issued on 30.10.2015 and complaint under Section 138 of Negotiable Instruments Act, 1881 (for short “NI Act”) being S.T.C. No.792 of 2015 renumbered as C.C. No.199 of 2016 on the file of Fast Track Magistrate No.1 of Coimbatore (for short “138 Proceedings”) was lodged by the appellant on 07.12.2015. Prior to initiating 138 proceedings, the appellant lodged a complaint under section 156(3) Cr.P.C being CMP No. 5083 of 2015 before Judicial Magistrate No. III Coimbatore on 30.10.2015. The Magistrate directed respondent no. 5 to register the FIR but by filing a report dated 29.01.2016, it was said that no offence is made out against the respondents. The appellant challenged the same by filing CRL.O.P. No. 6766 of 2016 before the High court of Madras and also prayed for direction against respondent no.5 to conduct fresh investigation. The High Court disposed of the same with an observation that the appellant may raise objection on closure report by way of protest petition. In pursuance thereof, the appellant filed a protest petition being Crl.M.P. No. 3891 of 2016, which was allowed by the Magistrate vide order dated 24.09.2016 directing the respondent no. 5 to register the case against the respondent no. 1 to 4 and to complete the investigation. Thereafter only, the respondent no.5 registered the case against respondent no.1 to 4 at Crime No.49 of 2016 for the offences under Sections 120B, 406, 420 and 34 of IPC on 01.10.2016, and after investigation, challan was filed before the competent Magistrate on which cognizance was taken by him.
5. The respondents, being aggrieved by the same, filed CRL.O.P. No. 6750 of 2017 before the High Court of Madras for quashment of the aforesaid proceedings. The High Court by the impugned order allowed the said petition and quashed the proceedings taking into consideration that proceedings under Section 138 of the N.I. Act pertaining to the same cause of action and on the same facts and grounds are pending, prior to the registration of the present proceedings. It was observed that, looking to the a
