Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr on 23 April, 2012
Supreme Court of India
Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr on 23 April, 2012
Author: . B Chauhan
Bench: B.S. Chauhan, Jagdish Singh Khehar
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 645 of 2012
Sangeetaben Mahendrabhai Patel Appellant
Versus
State of Gujarat & Anr.
Respondents
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
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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:
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A person who has once been tried by a Court of competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such 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 sub-section (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:
1 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 proved unless 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.
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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 offence from 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)
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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 in Kharkan & 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 in Sardul 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:
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(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 acquitted shall 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
have been 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
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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
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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
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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;
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(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 in G. 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.
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The appeal is devoid of any merit and accordingly dismissed.
........J.
(Dr. B.S. CHAUHAN) .......J.
(JAGDISH SINGH KHEHAR) New Delhi, April 23, 2012
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