Dishonour of cheque of Rs. 1.50 lakhs - Complainant could not prove that he had this much money to advance – Conviction set aside

Held:

1.        We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities.

2.      The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay installments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.

Supreme court of india

CASE NO.: Appeal (crl.) 518 of 2006

Krishna Janardhan Bhat : PETITIONER       v    Dattatraya G. Hegde: RESPONDENT

BENCH: S.B. Sinha & Harjit Singh Bedi,   DATE OF JUDGMENT: 11/01/2008

J U D G M E N T : S.B. SINHA, J

3.       Appellant and one R.G. Bhat were jointly running a business in the name and style of Vinaya Enterprises at Hubli together. Appellant executed a Power of Attorney in his favour.

4.       Allegedly, he had handed over four blank cheques to the said constituted attorney for meeting the expenses of the business. The counter foil of the cheque books was also allegedly filled in by Shri R.G. Bhat. The cheque bearing No. 044483 was shown to have been a self drawn one for a sum of Rs. 1500/-.

5.       Disputes and differences having arisen between the appellant and the said R.G. Bhat in connection with running of the said business, the power of attorney granted in his favour was cancelled by the appellant. Disputes and differences between the parties were referred to the Panchayat. In the meeting of the Panchayat held on 02.10.1996, complainant/respondent who is the brother-in-law of the said R.G. Bhat was admittedly present. He participated therein. The result of the said meeting of the Panchayat is not known but it is not in dispute that the appellant herein issued a public notice through his advocate in a local newspaper on 3.10.1996 to the following effect:

“My client Sh. Krishna Janardhana Bhat, Proprietor of Vinaya Enterprises, Tarihal Hubli has given authority to give notice as follows:

 My client appointed Shri Raghavendra Ganapati Bhat as his power of Attorney Holder on 21.8.1993 to run Vinay Enterprises as agent. He has started misusing the terms and conditions of the Power of Attorney. Hence my client cancelled the Power of Attorney on 21.8.96 by giving notice. If at all anybody deals with him on the Power of Attorney my client is not responsible in future.”

6.      On the premise that the respondent advanced a sum of Rs. 1,50,000/- to the appellant on 14.6.1998 and the latter on his own went to his house on 20.7.1998 to return the loan by an account payee cheque which having been dishonoured when presented; a complaint petition was filed.

7.       Prior thereto, a notice was sent on 27.8.1998 which was allegedly served on the appellant on 5.9.1998. He on that day itself sent a reply alleging in substance that the complainant had been colluding with R.G. Bhat in regard thereto, stating:

“Your client D.G. Hegde Goddalamane is husband of sister of my power of attorney holder R.G. Bhat (Proprietor Prasad Enterprises Tarihal Industrial Estate) of Hubli. I do not have any dealing with him as alleged in your letter. Knowing that the power of attorney holder R.G. Bhat has lost faith and having acted illegally and in anticipation of his committing further illegal acts I have legally cancelled my power of attorney and published the notice in a famous Kannada daily \023Samyukta Karnataka\024 on 3.10.96. From that date I do not have any relation with him or any of his relatives including your client. Please verify the handwriting and signature on the cheque and advice your client not to do such (illegalities) colluding with his brother-in-law.”

8.      The learned Trial Judge convicted the appellant and sentenced him to undergo imprisonment for six months and further directed payment of compensation for a sum of Rs. 1,50,000/-. An appeal preferred there against was dismissed by the Sessions Judge by a judgment and order dated 28.7.2004.

9.       The High Court in exercise of its revisional jurisdiction, however, on a revision petition filed by the appellant, partly allowed the same by reducing the substantive sentence to one week.

10.   The Special Leave Petition was filed by the appellant in person. As it was noticed by a Bench of this Court that some question of law arises for its consideration, Mr. S. Balakrishnan, learned senior counsel was requested to assist the Court.

11.    Mr. Balakrishnan urged that the learned Trial Judge, the Sessions Court as also the High Court committed a serious illegality insofar as it misread and misapplied the provisions of Section 139 of the Negotiable Instruments Act (for short “the Act”).

It was contended that the procedural requirements of Section 138 are:

(i)                There is a legally enforceable debt.

(ii)             The drawer of the cheque issued the cheque to satisfy part or whole

of the debt.

(iii)           The cheque so issued has been returned due to insufficiency of funds.

It was urged that only ingredient No. 2 is a subject matter of presumption under Section 139 of the Act and not the first one. It was argued that except the word of mouth of the complainant nothing has been brought on record to prove the offence as against the appellant.

12.   Mr. S.N. Bhat, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the appellant has rightly been found guilty of commission of an offence under Section 138 of the Act as bouncing of the cheque issued by him carries a mandatory presumption in terms of Section 139 read with Section 118 (a) of the Act. 

It was urged that it is not believable that the appellant despite referring the dispute to the Panchayat and issuing a paper publication on 3.10.1996 would not insist on taking back the cheque book from his erstwhile constituted attorney or would not inform the bank thereabout. Moreover, he having come out with a positive defence, it was for him to prove the same.

13.   Before we embark upon the factual issue involved herein, we would notice the manner in which the court proceeded to determine the case. The learned Trial Judge framed the following points for its determination:

(1) Whether the complainant proves the hilt that the accused to discharge earlier debt of Rs.1,50,000/-, has got issued a cheque on 20.7.1998 for Rs.1,50,000/- drawn at Vijay Bank, Tarahal Branch, Hubli?

(2) If so, whether the said cheque came to be dishonoured as \023funds insufficient\024 after its  presentation and despite of issuance of notice, the accused did not pay the due amount within stipulated time without any cause, thereby Negotiable Instruments Act?

The learned Trial Judge noticed the contents of the claim petition as also the evidence of PW-1. It also noticed the suggestions given to the said PW-1 by the appellant herein. Upon taking into consideration the same as also the statement of the appellant under Section 313 of the Code of Criminal Procedure, it posed a question as to whether there was no debt payable by the accused to the complainant and if so, whether the complainant colluding with R.G. Bhat had created the cheque with an intention to cause loss to the appellant. It, however, without making any further discussion, answered the said question directly on the material brought on record referring to a decision of the Karnataka High Court in S.R. Muralidar v. Ashok G.Y. [ILR 2001 Karnataka 4127] in extenso and opining that his decision in the case is similar to that of the Karnataka High Court, stating:

“Considering the proposition of law, in the present case also the accused admitted the signature on Ex.P.1. But, the contention is that his P.A. Holder mis-utilized his signed blank cheques through his relative complainant and the fact of the present case and fact of the decision mentioned by me are similar one and the observation made by the Hon\022ble High Court in the above decision and principle laid down therein are clearly applicable to the case in hand. Therefore, the defence taken by the accused herein without stepping into the witness-box, is not acceptable one and there is no cogent evidence produced by the accused to prove his special reasons for issuance of the cheque in question.”

14.   It again referred to a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Others [AIR 1999 SC 3762] and made almost a similar observation holding that as the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant stating:

“Here, the accused has not produced any evidence to discard the testimony of PW-1. Therefore, the presumption is to be drawn in favour of the holder of the cheque, who has received it for discharge of liability in view of the decision of the Hon\022ble Supreme Court”.

15.    Yet again, it relied upon a decision of the Karnataka High Court in M/s. Devi Tyres v. Nawab Jan [AIR 2001 Karnataka H.C.R. 2154], wherein it was opined:

“There is issued (sic) that the amount is payable and no criminal court is required to embark upon any enquiry that goes behind the Act of issuance of the cheque. If the drawer contends that there were certain special reasons whereby a cheque was issued and that the cheque was not intended to be encashed or honoured, the onus of establishing this shifts squarely to the accused”.

16.   The complainant case was, thus, primarily accepted for the reason that the appellant did not step into the witness box.

17.    The appellate court took an identical stand. It proceeded on the premise that the statement of accused under Section 313 of the Code of Criminal Procedure regarding misuse of blank cheque by the complainant and filling up Rs. 1,50,000/- instead of Rs. 1500/- is contradictory to his own admission in the reply to the notice issued to him. On what basis the said opinion was formed is not known. The appellate court refused to enter into the question as to whether the prosecution case is wholly unreliable, as the complainant had not been able to show his source of income so as to enable him to advance a huge loan of Rs. 1,50,000/-, holding:

“Now as far as the financial ability of the complainant to issue cheque for such huge amount to the accused is not a matter to be considered by the trial court or by me also since issue of Ex.P.1 and its dishonour is proved by the complainant beyond reasonable doubt.”

18.   The High Court in exercise of its revisional jurisdiction although accepted the contention of the appellant that the presumption under Section 139 of the Act extends  only to the extent that the holder of the cheque received the cheque for the discharge in whole or in part of any debt or other liability  and the same only means that cheque was issued for consideration, but does not extend to the extent that the cheque was issued for the discharge of the debt or liability as pleaded by the accused, opined that the complainant had discharged that onus by adducing his own evidence. Observing that the appellant did not step into the witness box, it was opined that although the relationship between the appellant and Shri R.G. Bhat was strained, there was nothing to show that the relationship between the appellant and the complainant became strained despite the fact that a panchayat meeting was held in regard to the said dispute in 1996. The High Court, however, refused to go into the factual aspect of the matter stating that it was exercising a revisional jurisdiction, stating:

“Since the burden of proving that the cheque had been misused is on the accused-petitioner, and there being a concurrent finding of the Trial Court and the Appellant Court with regard to that holding that the petitioner had failed to discharge that burden, I do not find any ground to interfere in the order of the Trial Court and that the Appellate Court, so far as they hold the petitioner guilty of an offence punishable under Section 138 of the Negotiable Instruments Act.”

19.   Before embarking upon the legal issues, we may analyse the deposition of PW-1  Complainant. He was a resident of village Goddalmane. Appellant is a resident of village Kekkar. As he was running an industry at Hubli, he sometimes resided in Hubli also. They were said to be friends. He asked him to give a loan of Rs. 1.5 lakhs in the first week of June, 1998 and the amount was handed over to him on 14th June, 1998. It was allegedly agreed that on the appellant failure to repay the said loan within one month, 15% interest would be charged. No document was executed; no pronote was executed; no receipt was obtained. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Merely, the cheque was tendered and it was marked as an exhibit. The cheque appears to have been issued as a proprietor of a business concern.

Despite the fact that R.G. Bhat was his brother-in-law, he denied that he was running the said business. He also feigned his ignorance as to whether the said industry was being run by R.G. Bhat on the basis of the Power of Attorney executed by the appellant. He, however, accepted that they had been running it together. He also accepted the relationship between him and R.G. Bhat. He knew about the dispute. He accepted that a panchayat meeting was held in regard thereto. Surprisingly, he denied his knowledge in regard to the existence of the power of attorney stating that the same was not made in his presence. He admitted that he was present on 2.10.1996 in the panchayat meeting to resolve the problem arising out of the dispute between R.G. Bhat and the appellant. He accepted that wooden and steel materials were placed in Vinay Enterprises and R.G. Bhat had been running the same type of industry in Tarihal Industrial Estate. According to him, he had been running such an industry in the name of Prasad Enterprises even prior to 1996. His acquaintance, according to him, with the appellant was only through his brother-in-law. He did not say that he had friendship with the appellant. There also does not appear to be any business transactions between them. He could not state about the denomination of the notes although according to him he had drawn the amount from the society.

He did not produce any books of accounts or any other proof to show that he got so much money from the bank. He admittedly did not have any written document pertaining to the accused. He accepted that there was no witness to the transaction. He, of course, denied certain suggestions, but the suggestions put to him were required to be considered by the court below in the backdrop of the facts and circumstances of the case.

20.  The courts below failed to notice that ordinarily in terms of Section 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only. Section 271D of the Income Tax Act reads as under:

“271D. Penalty for failure to comply with the provisions of section 269SS.

(1)    If a person takes or accepts any loan or deposit in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.

(2)   Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner.”

21.   Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines negotiable instrument to mean a promissory note, bill of exchange or cheque payable either to order or to bearer.

Section 138 of the Act has three ingredients, viz.:

(i)                 that there is a legally enforceable debt;

(ii)              that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and

(iii)            that the cheque so issued had been returned due to insufficiency of funds.

22.  The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.

23.  The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.

24.  An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

25.  In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] interpreting Section 118(a) of the Act, this Court opined:

“Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt”

[Emphasis supplied]

26.  Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of  preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.

27.   A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

28.  In M.S. Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant.

29.  Four cheques, according to the accused, appear to have been drawn on the same day. The counterfoil of the cheque book, according to the appellant, was in the handwriting of R.G. Bhat wherein it was shown that apart from other payments, a sum of Rs. 1500/- was withdrawn on a self drawn cheque. The courts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat.

30.  Disputes and differences between him and R.G. Bhat stood established by admission of the respondent himself. Similar industry was being run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than Rs. 20,000/- had ever been withdrawn from that bank at a time. The courts were required to draw an inference as to the probability of the complainant\022s advancing a sum of Rs. 1.5 lakhs on mere asking and that too without keeping any documentary proof. Even there was no witness. The purported story that the appellant would himself come forward to return the amount by a cheque knowing fully well that he did not have any sufficient funds is difficult to believe.

31.   In K. Prakashan v. P.K. Surenderan [2007 (12) SCALE 96], this Court following M.S. Narayana Menon (supra) opined:

“12. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-‘-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.

13. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.

In John K. John v. Tom Varghese & Anr. [JT 2007 (13) SC 222], this Court held:

“The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay installments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.”

32.  Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] wherein this Court held:

“22 Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

23 . In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”.

Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.

[See also K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458]

33.  We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith.

34.  But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right.

[See Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70] Article 6(2) of he European Convention on Human Rights provides :

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e,g,. honest and reasonable mistake of fact. In a recent Article The Presumption of Innocence and Reverse Burdens : A Balancing Duty  published in [2007] C.L.J. (March Part) 142 it has been stated :-

In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice  where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.

35.   We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.

36.  Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application.

37.   For the reasons aforementioned, the appeal is allowed. The judgments of conviction and sentence passed against the appellant are set aside.

Doctrine of Double Jeopardy — Negotiable Instruments Act, 1881 – Section 138 – Indian Penal Code, 1860 – Sections 406/420 read with Section 114 – Scope and application of doctrine of double jeopardy

Held: Negotiable Instruments Act, 1881 – Section 138 – Indian Penal Code, 1860 – Sections 406/420 read with Section 114 – Scope and application of doctrine of double jeopardy – Held, In the prosecution under Section 138 N.I. Act, the 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 involved herein, 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. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed.

Sangeetaben Mahendrabhai Patel Vs. State of Gujarat & Anr.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Dr. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR, JJ. On  April 23, 2012

CRIMINAL APPEAL NO. 645 of 2012  

J U D G M E N T  : Dr. B.S. CHAUHAN, J.

1. 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 rule is to be found contained in Section 300 Cr.P.C; Section 26 of the General Clauses Act; and Section 71 I.P.C. Section 300(1) Cr.P.C. reads:

“A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, whilesuch conviction or acquittal remains 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 subsection (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.” 

Section 26 of the General Clauses Act, 1897 reads:

“Provision as to offences punishable under two or more enactments. – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” 

Section 71 of I.P.C. reads:

“Limit of punishment of offence made up of several offences. - Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. …………………………..” 

6. In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the customs authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called `FERA’) read with the relevant notification. In the background of these facts, the plea of “autrefois acquit” was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called the ‘Constitution’). This court held that the fundamental right which is guaranteed under Article 20 (2) enunciates the principle of “autrefois convict” or “double jeopardy” i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim “nemo debet bis punire pro uno delicto“, that is to say that no one ought to be twice punished for one offence. The plea of “autrefois convict” or “autrefois acquit” avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of “autrefois acquit” is not provedunless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.

7. The Constitution Bench of this Court in S.A.Venkataraman v. Union of India & Anr.,AIR 1954 SC 375, explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20 (2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words ‘prosecuted’ and ‘punished’ are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive.

8. In Om Prakash Gupta v. State of U.P., AIR 1957 SC 458; and State of Madhya Pradesh v. Veereshwar Rao Agnihotri, AIR 1957 SC 592, this Court has held that prosecution and conviction or acquittal under Section 409 IPC do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.

9. In Leo Roy Frey v. Superintendent, District Jail, Amritsar & Anr., AIR 1958 SC 119, proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120-B IPC. This Court held that an offence under Section 120-B is not the same offence as that under the Sea Customs Act:

“The offence of a conspiracy to commit a crime is a different offencefrom the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.” 

(Emphasis added) 

10. In The State of Bombay v. S.L. Apte and Anr. AIR 1961 SC 578, the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2), held:

“To operate as a bar the second prosecution and the consequential punishment thereunder, must be for “the same offence”. The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 

xx xx xx xx xx xx xx 

The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to “the act or omission constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.” 

(Emphasis added) 

11. In Roshan Lal & Ors. v. State of Punjab, AIR 1965 SC 1413, the accused had caused disappearance of the evidence of two offences under sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under section 201 IPC. It was held that neither section 71 IPC nor section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under section 201 IPC, though it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court inKharkan & Ors. v. State of U.P., AIR 1965 SC 83.

12. In Bhagwan Swarup Lal Bishan Lal v. The State of Maharashtra, AIR 1965 SC 682, while dealing with the issue, held:

 “The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court inSardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747. Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence…. The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that Article has no relevance to the present case.” 

(Emphasis added) 

13. In The State of A.P. v. Kokkiligada Meeraiah & Anr., AIR 1970 SC 771, this Court while having regard to Section 403 Cr.P.C., 1898, held:

“The following important rules emerge from the terms of Section 403 of the Code of Criminal Procedure: (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence. 

(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made. 

(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted. 

(4) A person who has once been tried by a Court of competent jurisdiction for an offence and has been either convicted or acquittedshall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might havebeen convicted under the Code of Criminal Procedure.” 

(Emphasis added) 

14. The Constitution Bench of this Court in The Assistant Collector of the Customs, Bombay & Anr. v. L. R. Melwani & Anr. AIR 1970 SC 962, repelled the contention of the respondents therein that their criminal prosecution for alleged smuggling was barred because proceedings were earlier instituted against them before Collector of Customs. It was observed that neither the adjudication before the Collector of Customs was a prosecution, nor the Collector of Customs was a Court. Therefore, neither the rule of autrefois acquit can be invoked, nor the issue estoppel rule was attracted. The issue estoppel rule is a facet of doctrine of autrefois acquit.

15. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide: Pritam Singh & Anr. v. The State of Punjab,AIR 1956 SC 415; Manipur Administration, Manipur v. Thokchom Bira Singh, AIR 1965 SC 87; Workmen of the Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626).

16. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988 SC 1106, wherein the accused were prosecuted under Customs Act, 1962 (hereinafter referred to as `Customs Act’) and subsequently under Gold (Control) Act, 1968, (hereinafter called as `Gold (Control) Act’) it was held that the ingredients of the two offences are different in scope and content. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act. It was held that what was necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints.

17. In M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement AIR 1993 SC 1188, it was held:

“The further contention that under the Sea Custom Act for the self same contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reasons that two Acts operate in different fields, one for contravention of FERA and the second for evasion of excise duty. The mere fact that the penalty proceedings for evasion of the excise duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application.” (See also: State of Bihar v. Murad Ali Khan & Ors., AIR 1989 SC 1; Union of India etc. etc. v. K.V. Jankiraman etc. etc., AIR 1991 SC 2010; State of Tamil Nadu v. Thiru K.S. Murugesan & Ors., (1995) 3 SCC 273; and State of Punjab & Anr. v. Dalbir Singh & Ors., (2001) 9 SCC 212).

18. In A.A. Mulla & Ors. v. State of Maharashtra & Anr., AIR 1997 SC 1441, the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act, 1947 for making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to the prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried for the same and acquitted. The appellants were also tried for offence under Section 120-B IPC, Sections 135 and 136 of the Customs Act, Section 85 of the Gold (Control) Act and Section 23(1-A) of FERA and Section 5 of Import and Export (Control) Act, 1947. The appellants filed an application before the Judicial Magistrate contending that on the selfsame facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 Cr.P.C.). This Court held:

“After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact-situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature……. Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants.” 

(Emphasis added) 

19. In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001 SC 1092, this Court considered the argument that if the punishment had already been imposed for Court Martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20 (2) of the Constitution. The Court explained that the Court Martial proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over-lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the court placed reliance upon its earlier judgment in R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658.

20. In Union of India & Anr. v. P.D. Yadav, (2002) 1 SCC 405, this Court dealt with the issue of double jeopardy in a case where the pension of the official, who stood convicted by a Court-Martial, had been forfeited. The Court held:

“This principle is embodied in the well-known maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others….. Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16 (a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16 (a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases.” 

21. In State of Rajasthan v. Hat Singh & Ors. AIR 2003 SC 791, this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if prohibitory order is promulgated, a subsequent criminal act even if falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 Cr.P.C. and Section 26 of the General Clauses Act. Both the provisions employ the expression “same offence”. 

22. Similar view has been reiterated by this Court in State of Haryana v. Balwant Singh, AIR 2003 SC 1253, observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc. Therefore, it is not always necessary that in every such case the provision of Article 20(2) of the Constitution may be attracted.

23. In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR 2003 SC 2545, this Court while considering the case for quashing the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.

24. In view of the above, 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.

25. In Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581, while dealing with the proceedings under the provisions of Foreign Exchange Regulation Act, 1973, this Court quashed the proceedings (by a majority of 2: 1) under Section 56 of the said Act because adjudication under Section 51 stood finalised. The Court held :

“The ratio which can be culled out from these decisions can broadly be stated as follows:  

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously; 

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; 

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; 

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; 

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; 

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and 

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.” 

The ratio of the aforesaid judgment is not applicable in this case for the reason that proceedings under Section 138 of N.I. Act are still sub judice as the appeal is pending and the matter has not attained finality.

26. Learned counsel for the appellant has further placed reliance on the judgment inG. Sagar Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, is concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.

27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the 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 involved herein, 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.

28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed.