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HIMACHAL PRADESH HIGH COURT
P.S.Rana, J.
Rajeshwar Sabarwal —Petitioner
versus
State of H.P. —Non-Petitioner
Criminal Revision No.170 of 2015
Decided on 13.4.2016
Counsel for the Parties:
For the Petitioner:Mr. R.K. Bawa, Senior Advocate with Mr. Jeevesh Sharma, Advocate
For the Non-Petitioner:Mr. Shrawan Dogra, Advocate General with Mr. M.L. Chauhan and Mr. Rupinder Singh Thakur, AAG with Mr. R.K. Thakur, DAG
IMPORTANT POINT
As offence under Section 138 of Negotiable Instrument Act and offence under Section 420 IPC are distinct criminal offences then benefit of double jeoparady cannot be granted to revisionist notwithstanding the fact that allegations of both criminal complaints are substantially similar. It is held that ingredients of offence under Section 420 IPC and 138 of Negotiable Instrument Act are not similar.
Headnote:Indian Penal Code, 1860—Section 420—Revision against order for framing charge against petitioner—Petitioner representing himself to be a retired colonel from Army took delivery of 2,76,853 boxes of apples and mango from complainant and total value of goods was Rs.46,73,15,977/- Accused paid Rs.25,43,99,480 and did not pay balance amount of Rs.21,29,16,497—Material to show that accused cheated complaint by pretending that he was a retired colonel from Army whereas he was never as officer in Army—Fact that accused was being prosecuted for offence under Section 138 N.I. Act, regarding same transaction did not amount to double jeopardy as offence under Section IPC was distinct—No interference was warranted.
Held: After perusal of documents annexed with police report carefully Court is of the opinion that there are grounds for presuming that accused has committed an offence punishable under Section 420 IPC because there are grounds that accused cheated the complainant by way of pretending that accused was retired as Colonel from army and thereafter accused obtained supply of 276853 boxes of apples and mangoes in consideration of Rs. 467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). It is prima face proved on record that accused did not return Rs. 212916497/- (Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and ninety seven only) value of supply of apples and mangoes. It is prima facie proved on record that accused Rajeshwar Sabarwal was not Colonel in army at any point of time. It is prima facie proved on record that accused cheated the complainant and dishonestly induced the complainant to deliver 276853 boxes of apples and mangoes in consideration amount of Rs. 467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). Prima face dishonest intention on part of accused is proved from the very beginning in present case to cheat and dishonestly induce delivery of movable property.
In view of the ruling given by Constitutional Bench comprised of five Judges i.e. AIR 1954 SC 375 title S.A. Venkataraman vs. Union of India it is held that criminal offence under Section 420 IPC and criminal offence under Section 138 of Negotiable Instrument Act are distinct criminal offences. It is held that as offence under Section 138 of Negotiable Instrument Act and offence under Section 420 IPC are distinct criminal offences then benefit of double jeoparady cannot be granted to revisionist notwithstanding the fact that allegations of both criminal complaints are substantially similar. (Paras 9 and 13)
Result: Revision dismissed.
P.S.Rana, J.—Present criminal revision petition is filed under Sections 397 read with Section 401 of Code of Criminal Procedure against order dated 21.3.2015 passed by learned Additional Chief Judicial Magistrate Kasauli District Solan H.P. in case No. 53/2 of 2014 title State of H.P. vs. Rajeshwar Sabarwal registered under Section 420 of Indian Penal Code 1860.
Brief facts of the case
2. There is recital in final police report filed under Section 173 of Code of Criminal Procedure 1973 that w.e.f. 16.01.2011 to 01.03.2012 there was business transaction between the complainant Chuni Lal Chauhan and accused relating to business of apples and mangoes. There is recital in police report that accused Rajeshwar Sabarwal had purchased 276853 boxes of apples and mangoes from complainant Chuni Lal Chauhan. There is also recital in police report that total cost of 276853 boxes was Rs. 467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). There is further recital in police report that accused Rajeshwar Sabarwal had paid an amount to the tune of Rs. 254399480/- (Rs. Twenty five crore forty three lacs ninety nine thousand four hundred and eighty only). There is recital in police report that accused Rajeshwar Sabarwal did not pay an amount to the tune of Rs. 212916497/- (Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and ninety seven only) to complainant Chuni Lal Chauhan. There is further recital in police report that accused Rajeshwar Sabarwal told that he was retired from army from the post of Colonel and is running the business in the name of Tara Business Group. There is recital in police report that accused also told that accused used to supply apples to army and on 06.05.2011 complainant Chuni Lal Chauhan was invited in the function of Punjab University Chandigarh and complainant was honoured with best apple supplier to defence authorities. There is recital in police report that during investigation it was observed that accused Rajeshwar Sabarwal was not retired as Colonel from army. There is also recital in police report that accused Rajeshwar Sabarwal with dishonest intention of cheating informed the complainant that accused was retired from army from the post of Colonel. There is further recital in police report that accused Rajeshwar Sabarwal was not Colonel in the army at any point of time. There is recital in police report that accused Rajeshwar Sabarwal also did not supply apples and mangoes to the army authorities. There is also recital in police report that accused has committed cheating with complainant under Section 420 IPC to the tune of Rs. 212916497/-(Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and ninety seven only).
3. Learned trial Court vide order dated 21.3.2011 held that there exists prima facie material to frame charge against accused under Section 420 IPC. Learned trial Court framed charge against accused under Section 420 IPC.
4. Feeling aggrieved against the charge framed by learned trial Court revisionist filed the present revision petition.
5. Court heard learned Senior Advocate appearing on behalf of revisionist and heard learned Advocate General appearing on behalf of non-revisionist and also perused the entire record carefully.
6. Following points arise for determination in present revision petition:-
1. Whether revision petition filed by the revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2. Final Order.
*Findings on Point No.1 with reasons.
7. Submission of learned Advocate appearing on behalf of revisionist that as per forensic science report original cheques bearing Nos. 396001, 396002, 396003 were not signed by revisionist and on this ground prima facie case against the revisionist is not made out under Section 420 IPC is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that at the time of framing char
