IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 CRL.REV.PET.NO. 432 OF 2000() ---------------------------------------- CC.275/1996 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S) - COMPLAINANT - DE-FACTO COMPLAINANT: ---------------------------------------------------------------------------------- MOHAMMED KUNJI, S/O. ABU, MOOPPANTAKATHU, ULICKAL. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S) - ACCUSED: -------------------------------------- V.P. ANDRU, S/O. USMAN, SHAMSEENA MANZIL, VADICKAL, THALASSERI. ADV. SRI.R.SURENDRAN SRI.K.LAKSHMINARAYANAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON 30/01/2009 PASSED THE FOLLOWING: “C.R.” THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.432 of 2000 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 30th day of January, 2009 O R D E R -------------- Following questions are raised for a decision in this revision: (i) Whether a person could be tried over gain for the offence of cheating (Section 420 of the Indian Penal Code (for short, “the IPC”) on the basis of a second dishonoured cheque when he has already been tried and convicted of the same offence on the basis of another cheque issued in the same transaction? (ii) Whether he could be tried subsequently for the offence under Section 138 of the Negotiable Instruments Act (for short, “the Act”)? 2. According to the petitioner, he purchased a bus and later as per an agreement executed by him and the respondent and also his wife on 17.8.1993, sold that vehicle to the wife of respondent for a total consideration of Rs.3,41,000/-. Rs.5,000/- was paid to the petitioner at the time of agreement. The loan of Rs.1,65,000/- was agreed to be discharged by the purchaser. For payment of balance sum of Rs.1,71,000/- respondent issued three cheques dated 2.9.1993 for Rs.71,000/-, 17.11.1993 for Rs.50,000/- (Exhibit P1) and 18.11.1993 for Rs.50,000/- (for convenience they are separately CRL. R.P. No.432 of 2000 -: 2 :- referred to as the first, second and third cheque), all drawn on the same bank making him believe that when the cheques were presented they would be honoured and believing that representation, petitioner gave possession of the bus to the respondent. Petitioner presented the cheques but the same were dishonoured since there was no sufficient funds in the account of respondent and payment was stopped. Petitioner issued notice to the respondent intimating dishonour and demanding payment of the amount. Though notice was served on the respondent, he did not pay the amount. Alleging as above, petitioner filed three private complaints in the court of learned Judicial First Class Magistrate, Mattannur for offences punishable under Section 420 IPC and Section 138 of the Act. Learned magistrate forwarded the complaints to the police for investigation under Section 156(3) of the Code of Criminal procedure (for short, “the Code”) Police registered case (Crime No.64 of 1994 in this case) and after investigation submitted final reports stating that offence under Section 420 IPC is disclosed. Learned magistrate took cognizance of that offence, tried the respondent in C.C. No.276 of 1996 and convicted him of the offence under Section 420 IPC. Other cases (C.C. Nos.274 and 275 of 1996) were transferred to another court. This revision concerns C.C. No.275 of 1996 which is in CRL. R.P. No.432 of 2000 -: 3 :- respect of the second cheque. After trial learned magistrate acquitted the respondent observing that it is doubtful whether prosecution in respect of the second cheque under Section 420 IPC would stand since respondent was already tried and convicted of the same offence (in C.C. No.276 of 1996), and further holding that the offence of cheating has not been made out since only a civil liability is involved and that too, against the wife of respondent. That order of acquittal is under challenge in this revision. 3. Learned counsel for petitioner contended that the bar under Section 300(1) of the Code is not applicable since the offence referred to in this case was committed by the respondent along with the offence for which he was tried in C.C. No.276 of 1996 within a period of one year. It is also contended that finding of learned magistrate that only a civil liability is involved cannot be sustained. Further contention is that at any rate, learned magistrate ought to have framed charge against the respondent under Section 138 of the Act. According to the learned counsel for respondent, the order of acquittal is justified and no interference is warranted on this fact situation. 4. Before going into the contentions raised by counsel on either side based on Section 300 of the Code, it is necessary to refer to CRL. R.P. No.432 of 2000 -: 4 :- the evidence adduced by the petitioner. He gave evidence as P.W.4. Exhibit P1 is photocopy of cheque dated 17.11.1993 for Rs.50,000/- allegedly drawn by the respondent in favour of petitioner on State Bank of India, Thalassery branch. Exhibit P2 is photocopy of dishonour memo dated 15.2.1994. Exhibit P3 is photocopy of extract of the account of respondent in the drawee bank. Exhibits P2 to 4 and evidence of P.Ws.1 to 3 show that petitioner presented the cheque (Exhibit P1) for collection through Union Bank of India, Mattannur branch but it was dishonoured as payment was stopped by the respondent and as there was no sufficient funds in his account. Exhibit P4 is mahazar for seizure of Exhibit P3 prepared by the Investigating officer and attested by P.Ws.2 and 5. Dishonour of cheque was intimated to the respondent and he was called upon to make payment as per notice dated 4.3.1994 (Exhibit P6). Notice was served on the respondent as seen from Exhibit P7. Exhibit P5 is photocopy of agreement dated 27.5.1993 executed by the petitioner and respondent as per which petitioner purchased the bus from the respondent. Exhibit P9 is photocopy of agreement dated 17.8.1993, according to the petitioner, executed by him and wife of respondent for sale of the vehicle to the wife of respondent. Respondent is a witness in Exhibit P9. Contention of the respondent is CRL. R.P. No.432 of 2000 -: 5 :- that he had no transaction with the petitioner. Instead, bus belonging to his wife was sold to the father of petitioner and to avoid tax liability a few signed blank cheques and stamp papers were given to the father of petitioner. Exhibit P8 is the reply notice given by the respondent in that way. P.W.7, wife of the respondent gave evidence in that line. It is conceded that respondent was convicted and sentenced in a trial based on the first cheque (C.C. No.276 of 1996) for the offence under Section 420 IPC. Therefore learned magistrate expressed doubt whether subsequent prosecution based on the second cheque (Exhibit P1), for the same offence is maintainable in view of Section 300(1) of the Code. Learned magistrate however, did not enter into any definite finding in that regard. 5. Section 300 of the Code reads thus: “Person once convicted or acquitted not to be tried for 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 CRL. R.P. No.432 of 2000 -: 6 :- 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 CRL. R.P. No.432 of 2000 -: 7 :- 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 1897) 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 action”. Section is based on the maxim ”Nemo debet bis vexari” meaning that a person cannot be tried a second time for an offence which is involved in the offence with which he had already been charged and tried. For application of the said provision it has to be shown that, (1) the person concerned has already been tried by a competent court for the same offence or one for which he might have been charged or convicted at the trial, on the same facts; (2) the person concerned has been convicted or acquitted at that trial, and; (3) such conviction or acquittal is in force. CRL. R.P. No.432 of 2000 -: 8 :- According to the petitioner, the second cheque (Exhibit P1) was dishonoured as there was no sufficient funds in the account and payment was stopped. It is true that according to the petitioner, respondent made him believe that the cheque when presented would be honoured and that believing that representation he gave possession of the vehicle to the respondent. But offence alleged in this case and the former case is one under Section 420 IPC which deals with cheating and dishonestly inducing delivery of property. Going by the case of the petitioner as stated in his complaint and evidence, he sold the vehicle to the respondent for a total consideration of Rs.3,41,000/-, received Rs.5,000/- at the time of agreement, the loan of Rs.1,65,000/- was to be discharged by the purchaser and for payment of the balance sum of Rs.1,71,000/-, respondent issued the three cheques. The offence of cheating alleged is that respondent dishonestly induced the petitioner to sell the vehicle on the false representation that the cheques would be honoured by the bank concerned. Offence charged is not separately based on the three cheques in question or its dishonour. Therefore it is idle for the petitioner to contend that dishonour of each of the three cheques independently involved offence of cheating. Issuance of three cheques is part of the same transaction as per which the respondent CRL. R.P. No.432 of 2000 -: 9 :- dishonestly induced the petitioner to sell the vehicle. 6. It is contended by the counsel for petitioner that this case could have been tried along with the former case in view of Section 218 of the Code and hence the bar under Section 300(1) did not apply. That provision says: “Separate charges for distinct offences:-(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223”. Section deals with separate charges for “every distinct offence” of which any person is accused and states that every such charge shall be tried separately though the proviso enables the accused to request CRL. R.P. No.432 of 2000 -: 10 :- the magistrate to try all those cases together. Section 219 of the Code on which learned counsel placed reliance cannot come to the rescue of the petitioner. That provision applies only when more offences than one of the same kind are committed by the accused within a period of 12 months from the first to the last of such offence. Here, there is only one act of cheating and the manner in which cheating was committed may have been by issuing three cheques. Sections 218 and 219 of the Code have no application to the facts of this case. In view of Section 300(1) of the Code, I am of the view that respondent who was already tried for the offence under Section 420 IPC in C.C. No.276 of 1996 making use one of the three cheques could not have again been tried for the same offence based on the other cheques issued for discharge of other portions of the sale consideration. Therefore I hold that trial of the respondent in this case is not in accordance with law. 7. Next question is whether respondent could have been tried for the offence punishable under Section 138 of the Act based on dishonour of Exhibit P1. According to learned counsel since the offences under Section 420 IPC and Section 138 of the Act are distinct and separate and are constituted by different facts, a trial for the offence under Section 138 of the Act was not barred and hence CRL. R.P. No.432 of 2000 -: 11 :- learned magistrate ought to have framed charge against respondent for that offence and tried him. It is also the contention of learned counsel that materials on record were sufficient to frame charge against the respondent for that offence. According to the counsel for respondent, on same set of facts a separate trial for offence under Section 138 of the Act is also barred under Section 300(1) of the Code. 8. As per Section 300(1) of the Code which I have extracted, what is barred is a second trial for the same offence or, any other offence based on same facts for which a charge different from the one made against the accused might have been made under sub- section (1) of Section 221 of the Code. It is not disputed that the offence under Section 138 of the Act is different from the one under Section 420 IPC. Next question is whether it is on the same facts that offence under Section 138 of the Act arose. To decide that, it is necessary to understand the ingredients of offences under Section 420 IPC and Section 138 of the Act. 9. Section 420 IPC deals with cheating and thereby dishonestly inducing the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is CRL. R.P. No.432 of 2000 -: 12 :- capable of being converted into a valuable security. Mens rea is an essential requirement to constitute the offence. Ingredients to constitute cheating under Section 415 IPC are: (i) There must be a fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and, (iii) in cases covered by (ii)(b), the act or omission should be one which cause or is likely to cause damage or harm to the person induced in body, mind, reputation or property. Section 420 IPC deals with cases of cheating whereby the deceived person is dishonestly induced: (i) to deliver any property to any person, or; (ii) to make, alter or destroy; (a) the whole or any part of a valuable security; or (b) anything which is signed or sealed and which is capable of being converted into a valuable security. CRL. R.P. No.432 of 2000 -: 13 :- 10. Section 138 of the Act is attracted when a cheque is dishonoured for insufficiency of funds and in spite of dishonour intimation and demand for payment of the amount, drawer fails to make payment within the time prescribed. Section 138 of the Act reads thus: “Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Court, be punished with imprisonment for a term which may be extended to two years, or with fine which may be extend to twice the amount of the cheque or with both: Provided that nothing contained in this section CRL. R.P. No.432 of 2000 -: 14 :- shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c ) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability”. 11. It is true that when a cheque is returned for reasons CRL. R.P. No.432 of 2000 -: 15 :- aforesaid, drawer shall be deemed to have committed the offence but, it is pertinent to note that proviso says that “nothing contained in this Section shall apply” unless the formalities referred to in clauses (a) to (c) are complied. In other words, provisions of Section 138 of the Act which state that when a cheque is dishonoured for reasons stated therein drawer shall be deemed to have committed the offence shall not apply unless requirements stated in clauses (a) to (c) of proviso are satisfied. For eg; clause (a) states that the cheque is to be presented to the bank within six months from the date on which it is drawn or its period of validity whichever is earlier. If the cheque is presented beyond the said period and got dishonoured for insufficiency of funds, in my view, drawer shall not be deemed to have committed the offence under Section 138 of the Act. In D.C.M. Financial Services Ltd. v. Sareen (2008 (2) KLT 762 (SC), the Supreme Court stated in paragraph 14 thus: “For constituting an offence in terms of the said provision, the following ingredients are to be satisfied:- a) A cheque must be drawn; b) It must be presented and returned CRL. R.P. No.432 of 2000 -: 16 :- unpaid inter alia with the remarks “insufficient funds”; c) A notice for payment should be served on the accused; d) The accused has failed to make the payment of the said amount to the payee within 15 days from the dated of receipt of notice” (underline supplied). Therefore in my view offence under Section 138 of the Act is committed only when the conditions stated in the proviso are also satisfied. 12. Considering the ingredients to constitute offences under Section 420 IPC and Section 138 of the Act, I am of the view that these are separate and distinct offences constituted by separate facts. 13. Now the question is whether respondent having already faced trial for the offence under Section 420 IPC in C.C. No.276 of 1996 based on one of the three cheques involved, he could again be tried for offence under Section 138 of the Act on the basis of one of the other two cheques. Section 300(1) of the Code pressed into service on behalf of respondent can have no application as the bar is only for trial again for the same offence so far as a conviction or acquittal for that CRL. R.P. No.432 of 2000 -: 17 :- offence remains in force. Dishonour of a cheque for insufficiency of funds may, in a given case constitute the offence under Section 420 IPC and Section 138 of the Act for both of which the offender is liable to be prosecuted either in the same trial or in a subsequent trial as Section 300(1) of the Code can have no application. Neither Article 20 (2) of the Constitution of India nor Section 26 of the General Clauses Act apply to the situation and bar the subsequent trial. The Supreme Court considered a similar issue in V.K.Agarwal v. Vasantraj (AIR 1988 SC 1106). Question arose whether after the accused was tried for the offence under Section 111 read with 135 of the Customs Act, he could subsequently be prosecuted for the offence under Section 85 of the Gold (Control) Act. The Supreme Court observed that ingredients of the two offences are distinct and separate and held that subsequent prosecution is valid. In Anto v. Union of India (1991 (2) KLT 341) this Court held that since offences under Section 420 IPC and Section 138 of the Act are distinct and separate and the ingredients are also different, there is no constitutional bar in prosecuting the offender for the offence punishable under Section 420 IPC in spite of his prosecution and conviction under Section 138 of the Act. 14. Therefore, notwithstanding that respondent was tried in CRL. R.P. No.432 of 2000 -: 18 :- C.C. No.276 of 1996 for the offence under Section 420 IPC based on the first cheque, it was possible to prosecute him for the offence under Section 138 of the Act based on dishonour of Exhibit P1 and non-payment of the amount covered by that cheque in spite of dishonour intimation and demand. 15. Then question is whether the case has to be sent back to the trial court for trial of respondent for the offence under Section 138 of the Act. I stated that in the complaint, petitioner alleged that offence under Section 138 of the Act is also made out. Complaint was forwarded to the police for investigation since offence under Section 420 ICP was also alleged. Police filed final report for the offence under Section 420 IPC. Thereafter case proceeded as one initiated on police report for the offence under Section 420 IPC. At no point of time a request was made on behalf of the