2020 (8) TMI 286 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - Power to pass revisional orders - Section 420 of IPC - HELD THAT - In the instant case it is admitted fact that complainant respondent filed criminal complaint under Section 200 202 to initiate the proceedings against the petitioner accused under Section 138 read with Section 142 of NI Act. Learned trial court took cognizance under Section 138 of Negotiable Instrument Act against the petitioner accused. Thereafter petitioner accused appeared before the trial court. He adduced his evidence. The statement of accused was recorded. Petitioner-accused adduced defence witness - There is no evidence on record to give a conclusion that any document has been forged or fabricated. Thereafter, respondentcomplainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondent-complainant and it was held that petitioner-accused cheated the complainant-respondent by giving a cheque from another person i.e. Santosh Malviya and Santosh Malviya also gave his cancelled cheque to the present petitioneraccused to cheat the respondent- complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable - if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. It is clear from the record that complainant respondent-complainant did not allege any fact against Santosh Malviya in his complaint under Section 138 of NI Act and during his evidence before trial court any witness did not allege any fact against Santosh Malviya, so it is not proper to implead Santosh Malviya as an accused under Section 319 of Cr.P.C. If Santosh Malviya is added as an additional accused there would be denovo trial. It is admitted fact that his case is fixed for final arguments since 2014, so in these circumstances when the complainant-respondent did not allege any act of cheating in his complaint and his evidence so it would not be appropriate to start denovo trial. The impugned order dated 11.09.2014 passed by learned 3rd Additional Session Judge, Raisen is allowed, whereby learned Sessions Judge allowed the revision presented by respondent-complainant and directed to take cognizance under Section 420 of IPC against the petitioner-accused according to law and also to take cognizance under Section 120-B read with Section 420 of IPC against one Santosh Malviya is hereby set-aside - criminal revision allowed.

Summary

Issues Involved:
1. Jurisdiction of the revisional court.
2. Legality of the order directing cognizance under Sections 420 and 120-B IPC.
3. Applicability and scope of Section 319 and Section 216 of Cr.P.C.
4. Overlap between proceedings under Section 138 of the NI Act and IPC offences.
5. Double jeopardy and mens rea in the context of Section 138 NI Act and Section 420 IPC.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Revisional Court:
The petitioner-accused argued that the revisional court acted without jurisdiction by directing the trial court to take cognizance under Sections 420 and 120-B IPC. The revisional court's power under Sections 397 and 398 Cr.P.C. was discussed, highlighting that the revisional authority can examine the correctness, legality, or propriety of any finding or order. The judgment cited Rajendra Rajoriya vs. Jagat Narain Thapak (2018) 17 SCC 234 to emphasize that the revisional court can order further inquiry but not take cognizance itself. The revisional court's order was deemed erroneous as it directed the trial court to frame charges, which should be determined by the trial court after considering all evidence.

2. Legality of the Order Directing Cognizance under Sections 420 and 120-B IPC:
The revisional court's direction to take cognizance against the petitioner-accused and Santosh Malviya under Sections 420 and 120-B IPC was challenged. It was argued that the trial court had already dismissed an application under Section 216 Cr.P.C. for framing additional charges due to the lack of evidence of forgery or fabrication. The court held that the revisional court's order was erroneous as it bypassed the trial court's discretion to assess the evidence and decide on framing charges.

3. Applicability and Scope of Section 319 and Section 216 of Cr.P.C.:
The judgment discussed the scope of Section 319 Cr.P.C., which allows the court to summon additional accused based on evidence presented during the trial. The Supreme Court's decision in Sarojben Ashwinkumar Shah vs. State of Gujarat (2011) 13 SCC 316 was cited, establishing that the power under Section 319 should be exercised sparingly and only when there is sufficient evidence against the additional accused. The trial court had dismissed the application under Section 319, finding no evidence against Santosh Malviya. The revisional court's order to implead Santosh Malviya was thus found to be improper.

4. Overlap between Proceedings under Section 138 of the NI Act and IPC Offences:
The court clarified that proceedings under Section 138 of the NI Act and IPC offences like Section 420 can coexist. The judgment referenced Sangeetaben Mahendrabhai Patel vs. State of Gujarat (2012) 7 SCC 621, which held that the ingredients and legal requirements of Section 138 NI Act and Section 420 IPC are distinct. The mens rea or fraudulent intention required under Section 420 IPC is not a prerequisite under Section 138 NI Act, where the focus is on the dishonor of the cheque.

5. Double Jeopardy and Mens Rea in the Context of Section 138 NI Act and Section 420 IPC:
The court addressed the issue of double jeopardy, concluding that it does not apply as the offences under Section 138 NI Act and Section 420 IPC have different elements. The judgment noted that while Section 138 NI Act deals with the dishonor of cheques, Section 420 IPC involves cheating and fraudulent intent, which requires separate consideration. The court emphasized that the complainant is entitled to pursue separate legal proceedings under IPC if the facts warrant such action.

Conclusion:
The High Court set aside the revisional court's order directing cognizance under Sections 420 and 120-B IPC against the petitioner-accused and Santosh Malviya. The court held that the revisional court exceeded its jurisdiction and that the trial court should have the discretion to assess the evidence and decide on framing charges. The complainant-respondent was advised to initiate separate proceedings under IPC if necessary. The criminal revision was allowed, and the impugned order was quashed.