IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 Crl.MC.No. 1385 of 2007() ------------------------- CC.41/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... PETITIONERS/ACCUSED 1 AND 2: ------------------------------------ 1. K.PARAMESWARAN NAIR, AGED 50 YEARS, S/O.KRISHNAN NAIR, LAKSHMI NIVAS, R.R.LANE,KURAVAMKONAM, KAVADIAR P.O., THIRUVANANTHAPURAM. 2. ASHA, AGED 41 YEARS, W/O.K.PARAMESWARAN NAIR,LAKSHMI NIVAS, R.R.LANE,KURAVAMKONAM.KAVADIAR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.RAJEEVKUMAR SRI.B.RENJITHKUMAR RESPONDENT(S)/STATE AND COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SHIBULAL, AGED 45 YEARS,SHYLA BHAVAN, KARUVATT VADAKKU P.O.,KARUVATTA. PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R1 ADV. SRI.S.SHANAVAS KHAN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2215/07 IN CRL.M.C.NO.1385/07 //DISMISSED// 1.4.09 SD/-M.C.HARI RANI, JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1385 OF 2007 ----------------------------------------------------- DATED THIS THE 1st DAY OF APRIL, 2009 O R D E R Petitioners 1 and 2 are accused Nos.1 and 2 respectively in C.C.No.41/2002 pending on the file of Judicial First Class Magistrate's Court-I, Haripad. The offence alleged against the petitioners is punishable under Section 420 read with Section 34 of IPC. Annexure-A4 is the copy of the charge framed against the petitioners by the trial court. The prayer in this petition filed under Section 482 of Cr.P.C. is to set aside Annexure-A4 charge and to acquit the petitioners. 2. Heard the learned counsel appearing for petitioners and for the 2nd respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel appearing for the petitioners that the 2nd respondent herein originally filed a complaint against the first petitioner, which was taken on file by the J.F.C.M.-II, Haripad as C.C.No.69/2001 and the offence alleged against the first petitioner herein was punishable under CRL.M.C.No.1385/05 -2- Section 138 of Negotiable Instruments Act. Annexure-A1 is the copy of the judgment in C.C.No.69/2001, whereby the first petitioner was convicted and sentenced to undergo simple imprisonment for three months under Section 138 of Negotiable Instruments Act and also ordered to pay the cheque amount of Rs.50,000/- as compensation under Section 357(3) of Cr.P.C. and in default of payment of compensation, to undergo simple imprisonment for another two months. It is alleged in this petition that the first petitioner challenged the matter by filing appeal before the Additional Sessions Court-II, Mavelikkara as Crl.Appeal No.530/04 and the sentence has been modified. Subsequently, revision petition was preferred by the first petitioner herein as Crl.R.P.No.1876/08 before this Court and as per order dated 10.6.2008, this Court confirmed the conviction of the first petitioner ordered by both the courts below and the sentence has been modified directing to pay fine of Rs.50,000/- which shall be paid as compensation under Section 357(1) Cr.P.C. Six months' time was also granted to the first petitioner to deposit the said fine amount before the court below or directly pay the compensation to the complainant, failing which the first petitioner shall suffer simple imprisonment for three months by way of default clause. Copy of the CRL.M.C.No.1385/05 -3- order in the Crl.R.P. has been given by the learned counsel for petitioners for perusal and the same is returned to him. The contention of the petitioners in this petition is that the second respondent herein has already preferred complaint against the first petitioner under Section 138 of Negotiable Instruments Act and a second complaint with the same allegations is not maintainable. For that reason, C.C.No. 41/2002 is liable to be set aside and the petitioners should be acquitted as prayed for in this petition. 4. It is submitted by the learned counsel for the second respondent that the first petitioner alone was the sole accused in C.C.No.69/2001 and those proceedings were initiated against the first petitioner who issued the cheque for Rs.50,000/-, which ended in the conviction of the first petitioner. The first petitioner challenged the conviction before the Additional Sessions Court-II, Mavelikkara by filing Crl.Appeal 530/04 and Crl.R.P.No.1876/08 before this Court. All the courts have concurrently found that the first petitioner is liable to be punished under Section 138 of Negotiable Instruments Act and convicted thereunder. The first petitioner was directed to pay Rs.50,000/- to the second respondent. Even today, that amount has not been paid. Further, C.C.No.41/2002 now pending before the Court CRL.M.C.No.1385/05 -4- of J.F.C.M.-I, Haripad is an entirely different case pending against accused Nos.1 and 2 for a distinct offence under Section 420 read with Section 34 of IPC. Second accused is the wife of the first accused and involvement of both accused were specifically stated in the protest complaint, preferred by the second respondent herein after the receipt of the refer report, copy of which is produced as Annexure A3, which was filed by the police on the basis of the original complaint preferred by the second respondent, copy of which is produced as Annexure A2. The learned Magistrate took cognizance of the case against petitioners 1 and 2 on the basis of the protest complaint filed by the second respondent and charge has been framed on 12.3.2007, copy of which is produced as Annexure-A4. The learned counsel relied on the decision reported in Anto v. Union of India (1991(2) KLT 341). Paragraph 6 of the decision reads as follows: “There is also no point in the contention of the petitioner that punishment is disproportionate or provisions of Art.20 of the Constitution is violated. Bar under Art.20(2) that no person shall be prosecuted and punished for same offence more than once cannot be said to be violated by S.138. Same CRL.M.C.No.1385/05 -5- act or omission may be capable of constituting more than one offence under different provisions. That is no reason to say that Art.20(2) is offended. What is barred under Art.20(2) is only a second prosecution and conviction for the same offence. In other words, what is prohibited is double jeopardy, which is provided in S.300 of the Code of Criminal Procedure also. Offences under S.138 of the Negotiable Instruments Act and S.420 of the Indian Penal Code are different and the ingredients are also different. Conviction for different offences separately is not barred under Art.20(2). In spite of prosecution and conviction under S.138, there will be no constitutional bar in prosecution for an offence punishable under S.420 of the Indian Penal Code and a prosecution will lie, if such an offence is made out.” Considering the dictum laid down in the above mentioned decision and also the facts and circumstances of this case, I find that there is no merit in this petition and the extraordinary inherent jurisdiction of this Court under Section 482 of Cr.P.C. cannot be invoked. Petitioners 1 CRL.M.C.No.1385/05 -6- and 2 are accused Nos.1 and 2 respectively in C.C.No.41/2002 alleging the commission of offence punishable under Section 420 read with section 34 of Ipc. That case has no connection with the offence under section 138 of Negotiable Instruments Act. Both are distinct offences and petitioners are bound to face the trial in C.C.No.41/2002. Therefore, there is no merits in this petition, which is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn