HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION Nos.5128, 5129, 5132, 5134 AND 5202 of 2​008 COMMON ORDER:- The two petitioners in each of these criminal petitions are first and second accused (A.1 & A.2) in five criminal cases viz., C.C.No.2171 of 2006, C.C.No.382 of 2006, C.C.No.4062 of 2005, C.C.No.4192 of 2006 and C.C.No.179 of 2008 on the file of the Court of I Addl. Chief Metropolitan Magistrate, Hyderabad. The said criminal cases have been instituted by the Employees State Insurance Corporation (for short Corporation) for an offence under Section 138 of the Negotiable Instruments Act (for short N.I. Act) i.e. offence relating to dishonour of a cheque. As the point is same in all these petitions, they are disposed of by this common order. 2. The petitioners filed these five criminal petitions under Section 482 of the Code of Criminal Procedure (for short Cr.P.C) to quash the proceedings in all the aforesaid five criminal cases relying upon the rule of double jeopardy. When these petitions came up for admission notices were ordered to the respondents. The State is represented by the Public Prosecutor and the Corporation by its Standing Counsel and after hearing both sides these petitions have been taken up for disposal. The admitted circumstances which led to the filing of these petitions should be noted. 3. The first petitioner is an industrial unit and is a partnership firm and the second petitioner is its Managing Partner. It is the admitted case of the petitioners and the Corporation that the first petitioner has been brought under the purview of the Employees State Insurance Act, 1948 (for short E.S.I. Act). In view of this, the first petitioner has to make contributions to the Corporation under the E.S.I. Act for the various purposes envisaged therein. The other details are not necessary. It is also the admitted case of the both sides that as the first petitioner did not comply with the provisions of the Act in making contributions, the Corporation initiated prosecution against the first and second petitioners for the offences punishable under Section 85-A read with Section 85(i)(a) of the E.S.I. Act in P.C.No.84 of 2005 before the Chairman, Industrial Tribunal-I, Hyderabad as that is treated as the Judicial First Class Magistrate to try offences under the E.S.I. Act. The other details are not necessary. 4. It may then be noted that prior to the institution of the said Prosecution Case 84 of 2005 or sometime later, the second petitioner acting as the Managing Partner of the first petitioner issued five cheques in favour of the Corporation towards the dues payable by them to it. The said five cheques were dishonoured. Consequently the Corporation filed the aforesaid five criminal cases for the offence under Section 138 of the N.I.Act and they are pending. 5. It is the admitted case of both sides that subsequently the petitioners and the Corporation under an amnesty scheme compromised the matter and it appears that the petitioners have paid the amounts due to the Corporation. It is the further admitted case of both sides that subsequently the Corporation pursuant to the above compromise or composition filed a memo for withdrawal of Prosecution Case 84 of 2005 and on the said memo, the Chairman, Industrial Tribunal-1, Hyderabad, permitted withdrawal of the said case by its order dated 29-07-2001 and accordingly the petitioners were discharged from the said offences and this word ‘discharge’ is used in the order of the Industrial Tribunal. The learned counsel appearing for the petitioners and Corporation admitted the above aspects. 6. The grievance of the petitioners is that even-though the prosecution relating to the above main offences falling under the E.S.I. Act have been withdrawn by the Corporation, it is still pursuing the aforesaid five Calendar Cases pertaining to the offences under Section 138 of the N.I. Act and this cannot be permitted. Their contention is that since the petitioners issued the cheques in question separately for payment of the amounts/contributions due to the Corporation and as the Corporation earlier filed P.C.No.84 of 2005 for non payment of the said amounts/contributions and that subsequently the said amounts/contributions have been paid under a compromise scheme and the matter has been compromised resulting in withdrawal of P.C.No.84 of 2005, continuance of the prosecutions in the above five criminal cases for the offence under Section 138 of the N.I.Act would be violative of Article 20(2) of the Constitution and also Section 300 Cr.P.C. and consequently the said criminal cases should be quashed as the Corporation has not withdrawn them. 7. The learned counsel for the petitioners reiterated the above contention in the course of his arguments and argued that basing on the above provisions which enact the rule of double jeopardy, the above five criminal cases should be quashed in the above circumstances. In support of his contention, he relied upon two decisions of our Supreme Court one given in CENTRAL BUREAU OF INVESTIGATION VS. DUNCANS AGRO INDUSTRIES LTD.CALCUTTA[1] and the other given in HIRA LAL HARI LAL BHAGAWATI VS. C.B.I., NEW DELHI[2]. 8. On the other hand the learned counsel for the Corporation urged that the offence under Section 138 of the N.I. Act is altogether different from the offences under the E.S.I. Act and therefore the rule of double jeopardy does not apply and there are no merits in these petitions. 9. Thus the point is whether the petitioners contention that the withdrawal of P.C.No.84 of 2005 in the circumstances admitted by both sides can be a ground to quash the proceedings in the aforesaid five criminal cases pertaining the offence under Section 138 of the N.I. Act by applying the rule of double jeopardy or on the basis of Article 20(2) of the Constitution and Section 300 of Cr.P.C and further in view of Section 26 of the Central General Clauses Act. 10. The circumstances which led to the filing of these criminal petitions and the respective cases and contentions of the parties have already been set out supra. In C.B.I Vs Duncans Agro Industries Case(1st supra), the Supreme Court was dealing with a prosecution for offences under Sections 405(Criminal Breach of Trust) and 420(Cheating and dishonestly inducing delivery of property) I.P.C. In the corresponding civil Suit filed by the opposite party i.e. by Banks, compromise decrees were passed on payments by Debtor Company. In that context it was held that since the civil disputes which gave rise to the aforesaid criminal offences were compromised, it follows that criminal offences must also be held to have been compromised and further as the investigation was not completed for a long time, the criminal complaint was liable to be quashed. In the present case the five criminal cases in question pertain to an offence under Section 138 of the N.I. Act which is, as will be presently seen, an altogether different offence from the offences under the E.S.I. Act. 11. Then turning to Hira Lal Hari Lal Bhagawati’s case (2nd supra) also the facts are somewhat similar. There was a dispute regarding import of certain Cancer treatment machines and cheating of the Government of India by obtaining Customs Duty Exemption Certificate on false representations. The C.B.I registered a case under Section 120-B (Criminal conspiracy) and Section 420 (Cheating and dishonestly inducing delivery of property) I.P.C. for violation of some import-export policy and customs notifications. The other details are not necessary. The appellant therein availed an opportunity under a scheme called the Kar Vivad Samadhan Scheme, 1998 and settled the matter and paid all the dues as payable under the said scheme to the Central Government and there was a settlement of the matter. In that context it was held that continuation of the prosecution or investigation for the aforesaid offences cannot be sustained on the rule of double jeopardy. In the present case following the amnesty scheme and compromise between the parties, the Corporation has rightly withdrawn the P.C.No.84 of 2005 which was instituted for offences under E.S.I Act and this is consistent with the principles laid down in the aforesaid two decisions. 12. It may however be noted that dishonour of the five cheques said to have been issued by the petitioners constitute a distinct offence i.e. under Section 138 of the N.I. Act and this is altogether different from the offences under the E.S.I. Act. It may be noted that Article 20(2) of the Constitution lays down that no person shall be prosecuted and punished for the same offence more than once. Thus this prohibition applies only when a person is sought to be prosecuted for a second time for the same offence and this principle will not apply when the facts/allegations disclose a different offence. Section 300(1) Cr.P.C also says that a person once convicted or acquitted of an offence tried by a competent Court shall 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. It should be noted here that in the present case the offence under Section 138 of N.I. Act arises not on the same facts on which the offences under the E.S.I Act arose but on a different fact or facts and those facts are the dishonour of the cheques which by itself is a distinct offence under Section 138 of the N.I Act. 13. Then turning to Section 26 of the General Clauses Act, it no- doubt says that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable for prosecution and punishment under either or any of those enactments but shall not be liable to be punished twice for the same offence. This provision is also not applicable for the simple reason that the ingredients of the offence under Section 138 of N.I. Act, to attract which the mere dishonour of the cheque issued for a subsisting liability is sufficient, are altogether different from the offences under the E.S.I. Act. 14. The above legal position, in my opinion, has been aptly made clear in State of Bombay Vs S.L.Apte[3]. In this case the Managing Director and the Managing Director of the Women’s Department of an Insurance Company were put on trial for an offence under Section 409 I.P.C(mis-appropriation) and also an offence under Section 105 of the Indian Insurance Act. The learned Sessions Judge confirmed the conviction recorded by the learned Magistrate for the offence under Section 409 I.P.C. of the two Directors but set aside their conviction under Section 105 of the Insurance Act on the ground that there was no sanction as required by Section 107 of the said Act for launching prosecution for the said offence. Thereupon the concerned officials of the Insurance Company obtained the sanction of the competent authority and again prosecuted the aforesaid Directors of the Insurance Company for the offence under Section 105 of the Insurance Act. The concerned accused objected to this prosecution on the plea that since their conviction under Section 409 I.P.C. was in force and since the offence under Section 105 of the Insurance Act arose on the same facts, that prosecution is barred by the Section 403(1) of Cr.P.C., 1898. 15. It will be seen that the concerned accused were ultimately successful in the High Court and the State of Bombay carried the matter to Supreme Court. Their Lordships explaining the scope of Article 20(2) of the Constitution and Section 26 of the General Clauses Act, held that the bar applies only where both the offences are identical though both the offences may arise on substantially similar allegations. It was held that it was therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out and the bar relating to second prosecution would apply only when the offences are identical. Holding so, their Lordships held that the second prosecution for the offence under Section 105 of the Insurance Act which was a distinct offence was permissible. This decision still holds the field. The learned counsel for the petitioners, except relying upon the aforementioned two decisions relied upon by him, could not bring to my notice any decision to ignore the said decision which applies to this case and which is binding on this Court. 16. In the present case also the offence under Section 138 of the N.I. Act is altogether a different and a distinct offence from those under the E.S.I. Act. It may be true that petitioners may have issued the five cheques in question towards the contributions which were due from them to the Corporation, and it may also be true that the offences relating to non payment of contributions have been compounded, but still the allegations relating to dishonour of the said cheques constitute a different and distinct offence punishable under Section 138 of the N.I. Act. It therefore follows that the objections of the petitioners cannot be sustained. 17. It should be noted that the offence under Section 138 of the N.I. Act is compoundable and it is always left open to the parties to compound the same having regard to the circumstances of this case, but in view of the above legal position it is not open for this Court to interfere in the matter and quash the criminal cases in question. 18. Accordingly, the point is decided against the petitioners and it therefore follows that these criminal petitions should fail and they are accordingly dismissed. ______________________ N. RAVI SHANKAR, J March 2011 VJL HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION Nos.5128, 5129, 5132, 5134 AND 5202 of 2​008 March 2011 VJL [1] 1996 CRL.L.J.3501 [2] 2003 CRL.L.J.3041 [3] AIR 1961SC 578(1)