Back
2014 Supreme(Mad) 4447
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Nagamuthu, J.
S.B. Easwar @ R. Easwar and Another
Versus
B.C. Kesava Murthy
Crl. O.P. No. 22881 of 2013 and M.P. No. 1 of 2013
Decided On: 29 October 2014
M.V. Krishnan, for Petitioner A. Balamurugan, for Respondent
Headnote:
Negotiable Instruments Act - Section 138 - General Clauses Act - Section 26 – Indian Penal Code - Section 420 – Criminal Procedure Code - Section 300 - Constitution of India, 1950 - Article 20(2) - Case of cheating – Dishonor of cheque – Bank- 1st petitioner was originally prosecuted by respondent by way of a private complaint for alleged offence u/s.138 of Negotiable Instruments Act - In that case it was alleged that 1st petitioner herein had borrowed a sum from respondent herein - On same date in discharge of such liability it is alleged that 1st petitioner issued a post dated cheque drawn on Indian Bank Branch bearing Cheque - When cheque was presented it was dishonored by bank on two grounds - Funds insufficient and signature of account holder differs - Having received same respondent issued a legal notice to 1st petitioner under Section 138 of Negotiable Instruments Act demanding payment of cheque amount for which 1st petitioner herein issued a reply notice wherein he denied his liability to pay any amount to respondent - He had also stated that he had no such bank account and that cheque was not issued by him – Thereafter respondent filed said private complaint alleging that 1st petitioner herein had committed an offence punishable under Section 138 of Negotiable Instruments Act - Judicial Magistrate Fast Track Court took cognizance of offence under Section 138 of Negotiable Instruments Act – Held, A glance through above judgment of Hon’ble Supreme Court would show that the real test to find as to whether both the offences are one and the same for the purpose of Section 300 of Criminal Procedure Code and Article 20(2) of Constitution of India is not identity of facts but identity of ingredients of offences - Hon’ble Supreme Court has further clarified doubt if any that ingredients for offence under Section 138 of Negotiable Instruments Act and Section 420 of IPC are totally different – Therefore in instant case though facts may be identical ingredients of offences are different and so bar contained in Section 300 of Criminal Procedure Code and Article 20(2) of Constitution of India is not attracted - Contention of counsel for petitioners that in case dealt with by Hon’ble Supreme Court the earlier case was still pending before the High Court under Section 138 of The Negotiable Instruments Act and so Hon’ble Supreme Court held that bar under Section 300 of Criminal Procedure Code and Article 20(2) of Constitution of India is not attracted is not fairly correct as a reading of judgment shows that case under Section 138 of Negotiable Instruments Act ended in acquittal and what was pending before High Court was only an appeal – Now turning to factual aspects of case so far as 2nd petitioner is concerned court find absolutely no case against him warranting trial - From facts prima facie it is seen that cheque related to bank account maintained by 2nd petitioner - It is nowhere stated that 2nd petitioner had with ulterior motive or in connivance with 1st petitioner handed over blank cheque to 1st petitioner so as to facilitate him to make his signature and to issue same to respondent - It is not even case that 2nd petitioner had made any representation either by words or by act making complainant to believe that cheque relates to account maintained by 1st petitioner and that 1st petitioner acted on said representation - From narration of facts it is crystal clear that somehow or other 1st petitioner came to possess cheque filled it up and made his own signature and handed over same to respondent - Even if this allegation is found to be true then 1st petitioner alone is liable to be punished for offence under Section 420 of IPC - As far as 2nd petitioner is concerned as Court have already pointed out there is nothing on record even to make out a prima facie case warranting trial of 2nd petitioner - Case against 2nd petitioner deserves to be quashed but not against 1st petitioner - Criminal original petition is partly allowed
1. An interesting question, whether a person acquitted of an alleged offence punishable under Section 138 of The Negotiable Instruments Act, could be subsequently prosecuted and tried for an offence punishable under Section 420 of IPC based on the same transaction in the light of Article 20(2) of The Constitution of India and Section 300 of Cr.P.C. has come up for consideration in this original petition.
2. The 1st petitioner was originally prosecuted by the respondent by way of a private complaint for alleged offence u/s.138 of The Negotiable Instruments Act. In that case, it was alleged that the 1st petitioner herein had borrowed a sum of Rs.15,00,000/- from the respondent herein on 16.07.2009. On the same date, in discharge of such liability, it is alleged that the 1st petitioner issued a post dated cheque dated 16.07.2009 drawn on Indian Bank, Soolagiri Branch bearing Cheque No.422531. When the cheque was presented, it was dishonoured by the bank on two grounds viz., (i) “funds insufficient” and (ii) “signature of the account holder differs”. Having received the same, the respondent issued a legal notice to the 1st petitioner under Section 138 of The Negotiable Instruments Act demanding payment of the cheque amount, for which, the 1st petitioner herein issued a reply notice, wherein he denied his liability to pay any amount to the respondent. He had also stated that he had no such bank account and that the cheque was not issued by him. Thereafter, the respondent filed the said private complaint alleging that the 1st petitioner herein had committed an offence punishable under Section 138 of The Negotiable Instruments Act. The learned Judicial Magistrate, Fast Track Court, Hosur took cognizance of the offence under Section 138 of the Negotiable Instruments Act in S.T.C.No. 73 of 2011.
3. It appears that thereafter, the trial went on. The respondent examined himself followed by the examination of the Bank Manager. The Manager of the Bank examined on the side of the respondent, deposed that the account relating to the cheque in question was not in the name of the 1st petitioner herein. Thus, it came to light that the cheque in question had not been drawn as against the bank account maintained by the 1st petitioner. Having found the said fact and under the impression that there was no purpose in proceeding with the trial, the respondent filed a petition under Section 257 of Cr.P.C. seeking to withdraw the said case. Accordingly, the learned Magistrate allowed the said petition permitting withdrawal and acquitted the 1st petitioner. At this juncture, it needs to be remembered that the 2nd petitioner was not an accused in the said case.
4. Thereafter, the respondent has filed yet another private complaint in C.C.No.163 of 2012 on the file of the learned Judicial Magistrate No. II, Hosur, against the petitioners herein alleging that they have cheated him.
5. According to the present allegations in the complaint, admittedly, the cheque in question relates to the bank account of the 2nd petitioner. The 1st petitioner has used the said cheque, represented to the respondent that it related to his account and accordingly issued the cheque making his signature. Acting on the said false representation made by the 1st petitioner, it is alleged that he lent money to the tune of Rs.15,00,000/-. Thus, according to the respondent, both the accused have committed an offence punishable under Section 420 of IPC. The learned Magistrate has taken cognizance of the said offence and accordingly, issued summons to the petitioners.
6. Now, the petitioners have come up with this petition seeking to quash the said case in C.C.No.163 of 2012 on the ground that the 1st petitioner was already tried for the very same offence and acquitted and therefore, as per the bar contained in Section 300 of Cr.P.C. and Article 20(2) of the Constitution of India, he cannot be again tried for the same offence. In other words, allowing the trial to go on against him will
