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TMI Blog2014 (12) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence punishable under Section 420 of the Indian Penal Code ( the IPC , for short). On reference of the said Complaint, by the learned Magistrate to the Police, a case in crime no.6 of 2012 of the III Town Police Station of Karimnagar was registered for the said offence. The complainant s case which gave raise to the above three proceedings, particularly the subject crime for the offence under Section 420 of the IPC is as under: The accused had represented to the complainant that the Government have sanctioned a quarry lease to him in land in Sy.No.348 measuring Ac. 2.20 guntas situate at Balwanthapur village of Karimnagar District and that he intends to sub lease the same to the complainant. On that the complainant having agreed for the same and believing that the accused is having such a quarry lease in his favour had settled the terms and a sub lease agreement dated 30.04.2011 was executed in favour of the complainant by the accused on receipt of Rs.6,00,000/- from the complainant as an advance amount. Thereafter, the complainant having started quarry development had invested Rs.3,80,000/-. In spite of repeated demands by the complainant, the accused had failed to produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao [(2011) 2 SCC 703] . The learned counsel for the accused would further submit that the criminal case for the offence punishable under Section 420 of the IPC is filed with a mala fide intention to harass the accused. 5. Per contra, the learned counsel for the complainant would submit that Article 20 (2) of the Constitution of India and Section 300 (1) of the CrPC are not applicable to the facts of the present case as both the cases are still pending and as no conviction is yet recorded in any one of the two cases. It is also submitted that the ingredients constituting the two offences are different and that in a private complainant under Section 138 of the NI Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved, but, the complainant has to establish that the cheque that was dishonoured was issued by the accused towards the discharge of a legally enforceable debt or other liability and that on the other hand in a prosecution under Section 420 of the IPC mens rea is an important ingredient to be established and that, therefore, the two offences are quite di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Kolla Veera Raghav Rao (1 supra) 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 facts of the cited decision disclose that the appellant was already convicted for the offence punishable under Section 138 of the NI Act and, therefore, he had contended that he cannot be again tried or punished on the same facts for the offence under Section 420 or any other provision of the IPC or any other Statute. Finding force in the said submission, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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