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2010 Supreme(Cal) 412
High Court Of Calcutta
Ashim Kumar Roy, J.
Sekhar Biswas : Appellant
Versus
State Of West Bengal : Respondent
C.R.R. No. 4329 of 2009
Decided On : Apr 16, 2010
Dipanjan Chatterjee, Sohedu Sekhar Roy, Sourav Bhagat
Multiple prosecutions for distinct offenses arising from the same incident are not barred by the principles of double jeopardy.
Headnote:
CRIMINAL LAW - DISHONOURED CHEQUE - MULTIPLE CASES - Section 138 of the Negotiable Instruments Act, Section 420 of the Indian Penal Code, Section 156(3) of the Code of Criminal Procedure, Section 300 of the Code of Criminal Procedure - Simultaneous prosecution for distinct offences arising from the same incident is permissible.
Fact of the Case:
The petitioner was prosecuted under Section 138 of the Negotiable Instruments Act for dishonoring a cheque. Subsequently, a complaint under Section 156(3) of the Code of Criminal Procedure was filed against him for cheating under Section 420 of the Indian Penal Code based on the same incident. The petitioner challenged the maintainability of the second case, arguing that it amounted to double jeopardy.
Finding of the Court:
The court held that the two cases were based on distinct offences and that there was no bar to their simultaneous prosecution. It noted that the Negotiable Instruments Act and the Indian Penal Code offenses were different and that the petitioner had not been previously convicted or acquitted of the cheating charge.
Issues: Whether multiple criminal cases can be instituted for the same incident based on different offences.
Ratio Decidendi: The court relied on the principle that double jeopardy does not bar prosecution for distinct offences arising from the same incident. It distinguished the present case from situations where a person is prosecuted twice for the same offence or on the same facts for a different offense that could have been charged in the initial prosecution.
Final Decision: The court dismissed the petition, holding that the second case was maintainable and that the petitioner could be simultaneously prosecuted for both offenses.
1. OVER the incident of dishonour of a cheque for Rs. 1,30,000/- the opposite party no. 2 herein on October 23, 2003 made a complaint in Court against the petitioner alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act and on December 10, 2003 moved an application under Section 156 (3) of the Code of Criminal Procedure before the Learned Sub- Divisional Judicial Magistrate, Barrackpore against the petitioner alleging commission of an offence punishable under Section 420 of the Indian Peal Code. When the Learned Magistrate in exercise of his power under Section 156 (3) of the Code directed the said complaint to be treated as FIR and the investigation to be caused into the allegations made therein. Accordingly, a specific case being Bizpur Police Station Case No. 37 of 2005, under Section 420 of the Indian Penal Code has been registered against the petitioner. The petitioner has now moved this Court for quashing of the said FIR on the sole ground that over the self-same allegations two criminal cases cannot be instituted.
2. HEARD the Learned Counsels appearing on behalf of the parties. Perused the Case Diary and the case laws cited by the learned advocates appearing on behalf of the parties.
It is true although the aforesaid two cases, one under Section 138 of the Negotiable Instruments Act and other under Section 420 of the Indian Penal Code were instituted over the dishonour of the self-same cheque but the allegations are not same and identical. Moreover, the offences punishable under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code are completely distinct and different and thus there is no bar for simultaneous continuation of the said two criminal cases.
3. THE case instituted on the complaint relating to the offence punishable under Section 138 of the Negotiable Instruments Act, was ended in conviction and such order of conviction being challenged by the petitioner in a Criminal Appeal, the Learned Sessions Court reversed the order of conviction and acquitted him. THEreafter, a Criminal Appeal has been preferred before this Court by the complainant challenging the said order of acquittal and the appeal is still pending. Whereas the aforesaid police case instituted pursuant to the order passed under Section 156 (3) of the Code has ended in charge-sheet for the self-same offence.
4. IN the case at hand, the prohibition contained in sub-article (2) of Article 20 of the Constitution is not attracted inasmuch as this is not the case where the petitioner after being prosecuted and punished for any particular offence again going to be prosecuted for the self-same offence. Here the petitioner have been concluded of a charge under Section 138 of the Negotiable INstruments Act and the impugned prosecution relates to an offence punishable under Section 420 of the INdian Penal Code.
Similarly, the bar contained in Section 300 of the Code of Criminal Procedure is not attracted in the facts and circumstances of the case. According to Seito 300 of the Code of Criminal Procedure, a person who has once being tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remain 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. The offence for which the petitioner was earlier tried and then acquitted by virtue of an order passed by the Appeal Court is not such an offence in respect of which the provisions of subsection (1) of Section 221 or sub-section (2) thereof could have been invoked.
5. NOW, having gone through the Case Diary containing the First Information Report as well as the evidentiary materials collected during inves
