BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/02/2009 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.(MD)No.483 of 2009 Mani ... Petitioners Vs Saravanan ... Respondent PRAYER Criminal Revision filed under Section 397 r/w. 401 of Cr.P.C., praying to call for the records allow this revision and set-aside the order passed in Cr.M.P.3297/2009 dated 24.08.2009 on the file of the Judicial Magistrate No.2 of Madurai and allow this revision ordered to take the application Cr.M.P.3297/2009 on file and to issue process to the respondent/accused to proceed according to law. !For Petitioners ... Mr.V.Venkatesaperumal ^For Respondent ... No Appearance :JUDGMENT
The revision petitioner herein filed a private complaint against the
respondent herein for an offence under Section 420 I.P.C., before the learned
Judicial Magistrate No.2, Madurai. The said complaint was dismissed by the
learned Magistrate. Aggrieved by the said order, the petitioner has preferred
this criminal revision before this court.
2.Though notice was ordered to the respondent and also the private notice
was sent by the petitioner to the respondent and though it was received on
22.01.2010, the respondent has not appeared before this Court. The proof
affidavit has also been filed by the petitioner.
3.The learned counsel for the petitioners submits that the learned
Magistrate has dismissed the complaint of the petitioner erroneously and even
without recording the sworn statement. The earlier complaint filed by the
petitioner against the respondent herein for an offence under Section 138 of
Negotiable Instrument Act was quashed by this Court for the reason that there is
a delay in issuing statutory notice to the accused. Subsequently, the
petitioner had filed a private complaint for an offence under Section 420 I.P.C.
But, the leaned Magistrate, had dismissed the complaint merely for the reason as
the petitioner had already filed a private complaint against the respondent for
an offence under Section 138 of Negotiable Instruments Act and the petitioner
has no right to file the second complaint for an offence under the Indian Penal
Code. The Learned Magistrate has erroneously observed that it is a double
jeopardy. The learned counsel appearing for the petitioner has also relied on a
decision of this Court in Terry Gold India Limited Vs. TVS Finance and Services
Ltd. reported in (2008 1 MLJ (Crl) 782) and submitted that an offence under
Section 420 of I.P.C., is the distinct offence from the offence under Section
138 of Negotiable Instruments Act and as such, the petitioner is entitled to
file another complaint against the respondent.
4.The Court heard the submission made by the learned counsel for the
petitioner and also perused the records.
5.The earlier complaint filed by the petitioner against the respondent
herein for an offence under Section 138 of Negotiable Instruments Act, has been
quashed by this Court. The question arises that whether the second complaint by
the petitioner against the respondent for an offence under Section 420 of
I.P.C., is maintainable. Section 300 of Cr.P.C. reads as follows:-
300.Person once convicted or acquitted not to be tried for the same
offence:-
(1) 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.
(2) A person acquitted or convicted of any offence may be afterwards
tried, with the consent of the State Government, for any distinct offence for
which a separate charge might have been made against him at the former trial
under sub-section(1) of section 220.
(3)A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence from
that of which he was convicted, may be afterwards tried for such last mentioned
offence, if the consequences had not happened, or were not known to the Court to
have happened, at the time when he was convicted.
(4)A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction, be subsequently charged with,
and tried for, any other offence constituted by the same acts which he may have
committed if the Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the Court by which he was discharged or
of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of
the General Clauses Act, 1897 (10 of 18978) or of section 188 of this Code.
Explanation : – The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.”
6.The ingredients of an offence under Section 420 I.P.C., are entirely
different from the offence under Section 138 of Negotiable Instruments Act.
Section 420 I.P.C., is entirely distinct offence from the offence under Section
138 of Negotiable Instruments Act. The facts, which constitutes for the offence
under Section 420 I.P.C. are entirely different from the facts which constitutes
for the offence under Section 138 of Negotiable Instruments Act. Further, in
this case, the accused was not acquitted from the charge under Section 138 of
Negotiable Instruments Act, but the complaint, which was filed against the
accused for an offence under Section 138 of Negotiable Instrument Act, is only
quashed.
7.It is held by the Hon’ble Apex Court in Central Bank of India Vs. Saxons
Farms reported in (2000 MLJ (Crl) 356 SC) that
“13.Under Section 142 of the Act, the court can take cognizance of an
offence punishable under Section 138 only on a complaint in writing made by the
payee. Therefore, the police could not have started investigation under Section
138 of the Act. But if a cheque is dishonoured the drawer may expose himself to
prosecution under various sections of the Indian Penal Code which are cognizable
and the police could take up investigation. What was indicated in the notice was
that in addition to the legal action by the appellant Bank under the Act, option
was kept open for taking action against the respondents under the provisions of
the Indian Penal Code by informing the police. Therefore, the contention of
learned counsel for the respondents has no force.”
8.The Full Bench decision of the Andhra Pradesh High Court in Opts
Marketing Pvt.Ltd., Vs. State of A.P. reported in (2001 Crl.L.J 1489) has held
that
“Even after introduction of Section 138 of the Negotiable Instruments Act,
prosecution under Section 420 I.P.C. is maintainable in case of dishonour of
cheques or post-dated cheques issued towards payment of price of the goods
purchased or hand loan taken, or in discharge of an antecedent debt or towards
payment of goods supplied earlier. If the charge-sheet contains an allegation
that the accused had dishonest intention not to pay even at the time of issuance
of the cheque, and the act of issuing the cheque, which was dishonoured, caused
damage to his mind, body or reputation.”
9.It is held by this Court in a decision in V.Kannan Vs. State by District
Crime Branch reported in (2007 (2) MLJ (Cri) 83) in which a learned Judge,
followed the principles laid down by the Supreme Court in Central Bank of India
Vs. Saxons Farms reported in (AIR 1999 SC 3607 : (1999) 8 SCC 221 : (2000 MLJ
(Crl) 356 SC) and a Full Bench Decision of the Andhra Pradesh High court in Opts
Marketing Pvt.Ltd., Vs. State of A.P. reported in (2001 Crl.L.J 1489). This
view has also been accepted by His Lordship Justice S.Palanivelu, in the
decision reported in (2008 1 MLJ (Crl) 782) (cited supra).
10.In view of the above decisions, this Court is of the view that even
though the proceedings taken against the accused/respondent herein for an
offence under Section 138 of the Negotiable Instruments Act is terminated, if
the facts constitute the ingredients then proceeding for an offence under
Section 420 IPC against the same person, would not attract the principle of
double jeopardy or autre fois acquit.
11.Section 300 of Cr.P.C. also does not stand in the way of the
proceedings against the respondent for a distinct offence under Section 420
I.P.C. It had been brought to the notice of this Court that the learned
Magistrate has not recorded the sworn statement of the complainant.
12.In view of the settled principle of law laid down by the Hon’ble Apex
Court and in view of the materials available on record, the revision is allowed
and the order passed by the learned Magistrate is set aside. The learned
Magistrate is directed to record the sworn statement of the complainant and
thereafter to proceed according to law. It is for the learned Magistrate to
consider the case on merits and either to dismiss the complaint under Section
203 of Cr.P.C., or to proceed as per Section 204 of Cr.P.C.
MPK
To
1.The Judicial Magistrate No.2,
Madurai.
3.The Assistant Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.