2018 (9) TMI 1283 - HC - Indian Laws

Principle of Double of Jeopardy - Criminal breach of trust - cheating and criminal conspiracy - main allegations appears to be to receive the amount from respondent No.2 to siphon off the money with intention to receive wrongful gain and with intention to cheat the respondents the amount has been siphoned off in the name of some other person (grand son of petitioner No.1) by way of gift - dishonor of Cheque - Section 138 of NI Act. Held that - Exercise of judicial restrained was mandated by the Apex Court while entertaining petitions under Section 482 of Cr.P.C. - Besides that, one more aspect, is infant stage of investigation because investigation is yet to be unfolded. From perusal of the case diary, it appears that interrogation/ statements of the petitioners are yet to be taken therefore, it would be too early to jump to the conclusion about role of the petitioners and since the plea of double jeopardy was discarded in the preceding paragraphs therefore, scope of interference on merits constricts to the detriments of petitioners. It is for the investigating officer to decide and take the call. He is free to take appropriate decision as per law. No such directions can be given to the authority at this juncture. In the cumulative analysis and considered opinion of this Court, scope of interference at this juncture regarding quashment of FIR does not exists. Scope of section 482 of Cr.P.C. is to be used sparingly in those matters where, no case is made out at the threshold. Petition dismissed.

Issues:
1. Quashment of FIR under Sections 420, 406, 506, 120-B of IPC based on Double Jeopardy plea.
2. Interpretation of Double Jeopardy principle under Article 20(2) of the Constitution of India and Section 300 of Cr.P.C.
3. Application of the doctrine of autrefois convict and autrefois acquit.
4. Comparison between proceedings under Section 138 of NI Act and offences under IPC.
5. Relevance of Section 438 of Cr.P.C. in the case.
6. Exercise of inherent power under Section 482 of Cr.P.C. for quashment of FIR.
7. Judicial restraint in quashing FIR under Section 482 of Cr.P.C.
8. Stage of investigation and the role of investigating officer.

Detailed Analysis:
1. The petitioners sought quashment of FIR under Sections 420, 406, 506, 120-B of IPC, citing the Double Jeopardy principle due to pending proceedings under Section 138 of NI Act. The main allegations involved siphoning off money with wrongful intent and criminal conspiracy. The respondents opposed the plea, emphasizing the distinct nature of offences under NI Act and IPC. The court noted the mens rea element in the present case, distinguishing it from the NI Act proceedings.

2. The court analyzed the Double Jeopardy principle under Article 20(2) and Section 300 of Cr.P.C., citing the Sangeetaben Mahendrabhai Patel case. It highlighted the need for ingredients of the offences to be the same for the plea to apply. The court differentiated between the NI Act and IPC offences, emphasizing the relevance of mens rea in the latter.

3. The doctrine of autrefois convict and autrefois acquit was discussed, referencing case law to explain the application of the principle in the context of the present case. The court clarified that the plea of Double Jeopardy did not apply due to the differences in the nature of offences under the NI Act and IPC.

4. A comparison between proceedings under Section 138 of NI Act and offences under IPC was made, highlighting the distinct legal presumptions and requirements for each. The court emphasized the seriousness of IPC offences and the relevance of mens rea in determining guilt.

5. The relevance of Section 438 of Cr.P.C. in the case was noted, particularly in relation to one of the petitioners. The court highlighted that the effect of the order under Section 438 could not be nullified by the petitioners.

6. The court discussed the exercise of inherent power under Section 482 of Cr.P.C. for quashing FIRs, emphasizing the need for judicial restraint and sparing use of such power. The court referred to the State of Telangana case to underscore the importance of cautious application of inherent power.

7. Judicial restraint in quashing FIRs under Section 482 of Cr.P.C. was emphasized, with the court highlighting the need for a careful assessment of the case before invoking inherent power. The court stressed the importance of using the power sparingly and only in cases where no prima facie case is established.

8. Lastly, the stage of investigation and the role of the investigating officer were discussed. The court noted that the investigation was at an initial stage, with statements of the petitioners yet to be taken. The court highlighted that interference at this stage was unwarranted, given the ongoing investigation and the rejection of the Double Jeopardy plea.

In conclusion, the court dismissed the petition, declining admission and emphasizing the need for a restrained approach in quashing FIRs under Section 482 of Cr.P.C.

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