The Supreme Court in a recent case decided that subsequent prosecution for cheating under IPC is valid irrespective of prosecution under Section 138 Negotiable Instrument Act as the ingredients of both the offences are different.
The question whether Doctrine of Double Jeopardy is attracted, in the event of simultaneous / subsequent prosecution under section 138 Negotiable Instruments Act (hereinafter “NI Act”) and under IPC for cheating and criminal breach of trust came for consideration before hon’ble Supreme Court in Sangeeta ben v. State of Gujrat & Anr., decided on 23rd April 2012. After a detailed discussion the court held that the subsequent prosecution under IPC is fine as ingredients of the offences under S. 420 IPC and S. 138 NI Act are entirely different.
The Appellant had taken a hypothecation loan from the Respondent no. 2 and did not pay back. And in order to settle the liability issued a cheque which was dishonoured when presented. So the Respondent no. 2 filed a criminal complaint under section138 NI Act in October 2003. Subsequent thereto the Respondent no. 2 filed an FIR u/s 406 and 420 R/W S. 114 Indian Penal Code, thereby, accusing the Appellant for Criminal Breach of Trust, Cheating and Abetment, etc.
While the trial court Convicted the Appellant in NI Act case. On appeal, however he was acquitted by the District Judge and at the time of the present appeal before the Supreme Court, the appeal against acquittal was pending before Gujarat High Court (hereinafter“HC”) for consideration. The Appellant in the meanwhile had filed a Section 482 CrPC petition before the HC seeking quashing of the case under S. 406 and 420 IPC on the ground that since he stood acquitted in NI Act case then his trial under IPC on the same facts was an abuse of the process of law and needed to be struck down as it amounted to double jeopardy (hereinafter “DJ”). The petition was dismissed by the HC. Aggrieved by the dismissal of his petition the appellant approached the Hon’ble Supreme Court.
Argument: Appellant’s arguments substantially remained the same that in the wake of acquittal in NI Act case the FIR and Criminal case pending before Chief Judicial Magistrate amounts to abuse of the process of law as it is nothing but a case of double jeopardy under section 300 CrPC, Section 71 IPC and Section 26 of the General Clauses Act.
Counter argument: However the Respondent 2’is counsel argued that in this case doctrine of DJ was not attracted as the ingredients of the offences u/s 406/420 r/w S. 114 IPC are entirely distinct from the case u/s 138 NI Act and do not constitute the same offence.
The Hon’ble Apex Court basing its Judgment on a catena of previous judgments starting from Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 traversing several judgments on the issue of double jeopardy. The court viewed that “In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.”
The Hon’ble Court simply distinguished the ratio of the Judgments in G. Sagar Suri & Anr. v. State of U.P. &Ors., (2000) 2 SCC 636 Kolla VeeraRaghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, on the ground that “In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.” However it is important to remember that in both the cases It has been held, and more specifically that in KollaVeera case that “once the conviction under Section 138 of N.I. Act has been recorded, the question of trying the same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.
After identifying and establishing the settled position of law and distinguishing G. Sagar Suri etc., the Hon’ble Court held:
“Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mensrea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mensrea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed. “
While the Hon’ble Court is perfectly justified in distinguishing Sangeetaben case with the ratio of G. SagarSuri&Anr. V. State of U.P &Ors. And KollaVeeraRaghavRao v. GorantlaVenkateswaraRao&Anr., the doctrine of the Rule of Law is fundamentally dependent on the legal certainty and predictability. And we as a nation take immense pride in the fact that we are a people governed by the rule of law. But this fact of legal certainty and predictability was made uncertain by this judgment.
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