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2012 (4) TMI 828

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..... s 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 Negotiable Instruments Act on the ground that the Appellant had taken hypothecation loan of Rs. 20 lakhs and had not repaid the same. In 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 'Indian Penal Code') 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 Negotiable Instruments 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 .....

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..... Section 71 I.P.C. Section 300(1) Code of Criminal Procedure. reads: 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: 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, unles .....

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..... s to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. 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 Indian Penal Code 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 and 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 120B Indian Penal Code. This Court held that an offence under Section 120B 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 .....

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..... 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. .....

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..... the Code of Criminal Procedure. (Emphasis added) 14. The Constitution Bench of this Court in The Assistant Collector of the Customs, Bombay and Anr. v. L.R. Melwani and 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 distu .....

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..... gesan and Ors. (1995) 3 SCC 273; and State of Punjab and Anr. v. Dalbir Singh Ors., (2001) 9 SCC 212). 18. In A.A. Mulla and Ors. v. State of Maharashtra and Anr. AIR 1997 SC 1441, the Appellants were charged under Section 409 Indian Penal Code 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 120B Indian Penal Code, 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 Code of Criminal Procedure.). 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 respe .....

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..... o 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 and 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 ev .....

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..... ch 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; (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 .....

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