2014 (12) TMI 1410 - HC - Indian Laws

Simultaneous proceedings under different acts for same offence - Dishonour of Cheque - complaint for the offence punishable under Section 138 of the Negotiable Instruments Act as well as offence punishable under Section 420 of the Indian Penal Code imposed - HELD THAT - In the decision in Kolla Veera Raghav Rao 2011 (2) TMI 1257 - SUPREME COURT it is observed by the Hon ble Supreme Court that Section 300 (1) of the CrPC is wider than Article 20 (2) of the Constitution of India as while the said Article only states that No person shall be prosecuted and punished for the same offence more than once , the said Section states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts - the Hon ble Supreme Court had held as follows In the present case, although the offences are different but the facts are the same. Hence, Section 300 (1) of the CrPC applies. Consequently, the prosecution under Section 420 of the IPC was barred under Section 300 (1) of the CrPC. Holding so, the Hon ble Supreme Court while setting aside the judgment of this Court had allowed the appeal. Reverting to the facts of the case on hand, it is to be restated that both the cases against the accused based on the same set of facts are still pending and no conviction is yet recorded in any one of the two cases. Therefore, as rightly urged, unless the accused is tried and convicted by a competent Court for the offence punishable under section 138 of the NI Act, the question of bar under Section 300 (1) of the CrPC for the prosecution under Section 420 of the IPC does not arise; and for Section 300 (1) of the CrPC to apply the accused must first establish that he was earlier tried and convicted for an offence on the same set of facts. Be that as it may. Nonetheless, the learned counsel for the accused submits that even if the accused were to be tried on the same set of facts at two different trials for the two offences and albeit he were to be found to be guilty, still he cannot be convicted and punished for both the offences in view of the provision of Section 300 (1) of the CrPC and that therefore, subjecting him to the ordeal of a criminal trial for the offence under Section 420 of the IPC on the same set of facts is not only an abuse of process of Court but would also be an exercise in futility, and, hence the same cannot be permitted. This Court finds force and acceptable merit in this submission. This court finds that it would be just and appropriate to order stay of the proceeding in the case crime no. 6 of 2012 of the III Town Police Station of Karimnagar registered for the offence punishable under Section 420 of the IPC till the final disposal, on merits, of the CC 139 of 2012 taken on file by the learned Magistrate for the offence punishable under Section 138 of the NI Act, as such a course sub serves the ends of justice and would protect the interests of both the parties - Petition disposed off.

Summary

Issues:
Request to quash criminal proceedings under Section 482 CrPC for offences under Section 138 of the NI Act and Section 420 of the IPC based on the same set of facts.

Analysis:

1. Background and Submissions:
The petitioner filed a petition under Section 482 CrPC seeking to quash proceedings against him in a criminal case involving offences under Section 138 of the NI Act and Section 420 of the IPC. The petitioner argued that prosecuting him for both offences based on the same facts would amount to an abuse of process of the Court. Reference was made to a civil suit and a case under Section 138 of the NI Act already pending against the petitioner.

2. Arguments by the Petitioner:
The petitioner contended that since the facts forming the basis for both cases were the same, he could not be tried or punished for both offences under Section 300 (1) of the CrPC and Article 20 (2) of the Indian Constitution. The petitioner claimed that the prosecution for the offence under Section 420 of the IPC was mala fide and intended to harass him.

3. Arguments by the Respondent:
The respondent argued that Section 300 (1) of the CrPC and Article 20 (2) of the Constitution did not apply as no conviction had been recorded in either case. It was emphasized that the mens rea requirement differed between the two offences, with the NI Act not requiring proof of fraudulent intent at the time of issuing the cheque, unlike the IPC.

4. Legal Provisions and Precedent:
Section 300 of the CrPC and Article 20 (2) of the Constitution were cited, highlighting the prohibition against trying a person for the same offence more than once. A Supreme Court decision, Kolla Veera Raghav Rao, was referenced to support the petitioner's argument that trying him for both offences on the same facts would be impermissible.

5. Court's Decision:
The Court noted that both cases were pending, and no convictions had been secured. It was determined that for Section 300 (1) of the CrPC to apply, the accused must first be tried and convicted for an offence on the same set of facts. However, the Court acknowledged the merit in the petitioner's argument that even if found guilty in separate trials, he could not be convicted and punished for both offences.

6. Order and Conclusion:
Considering the circumstances, the Court ordered a stay on the proceedings for the offence under Section 420 of the IPC until the final disposal of the case under Section 138 of the NI Act. This decision aimed to serve the interests of justice and protect the rights of both parties involved. The criminal petition was disposed of accordingly, with miscellaneous petitions in the matter closed.