IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4141 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 WITH CRIMINAL APPLICATION NO.4142 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 WITH CRIMINAL APPLICATION NO.4143 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 WITH CRIMINAL APPLICATION NO.4144 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 Mr. Shivshankar J. Joshi ..Applicant. v/s. Mr. Suresh Damji Shah & Anr. ..Respondents. Shivshankar Jatashankar Joshi applicant present in person. Ms P.P.Shinde, APP for the respondent/State. CORAM : J.H.BHATIA, J. DATE : 9th September, 2011 P.C. : 1 All these applications are filed by the original complainant seeking leave to prefer appeals against the order of acquittal passed by the Metropolitan Magistrate, 50th Court, Vikroli in four cases by the common judgment. 2 Heard the applicant/complainant in person, who is practising a advocate. Perused the impugned judgment and the relevant documents. 3 To appreciate the question involved in the present applications , it will be useful to state the facts in brief. According to the applicant/complainant, he used to deal in shares and stock through the accused Suresh Shah, who was broker in the stock market. In November, 1992, a sum of Rs.4,75,895/- was due from the accused to the applicant and, therefore, the accused had issued one cheque of Rs.50,000/- dated 4.5.1993 and another cheque of Rs.2,27,200/- and he also issued third cheque of Rs.13,300/- towards interest for delayed payments. Cheque of Rs.50,000/- was dishonoured, in respect of that cheque, the applicant had filed complaint under Section 420 IPC and Section 138 of the Negotiable Instruments Act and it was registered as Criminal Case No.63/SS/1994. The cheque of Rs.2,27,200/- was also dishonoured and about that he filed complaint being Criminal Case No.61/SS/94 under Section 420 of the IPC. Third cheque of Rs.13,300/- was also dishonoured and he filed complaint. It was registered as Criminal Case No.64/SS/94. According to him, he had also purchased 15 shares of Andhra Papers and had asked the accused to transfer five of them to one Iqbal Bohra for Rs.9250/-. The accused had received the money but failed to transfer the shares. About that he filed complaint, which was registered as Criminal Case No.60/SS/94 .Having filed complaints in respect of individual matters, he lodged a report with police and Criminal Case No.41/P/1994 was registered by the police and after investigation, charge-sheet was filed. Eventually private complaint, being criminal case no.63/SS/94 under Section 420 IPC, was merged with the police charge-sheet being case no.41/P/1994. 4 All those four matters were directed to be heard together by the High Court. The accused was charged and put to trial. Evidence was led for the prosecution. During the arguments of the case on behalf of the accused, the certified copy of the criminal case no.109/SS/1993 was filed by the accused, which shows that the complaint was filed by the complainant covering the facts of the criminal case nos.61/SS/1994, 63/SS/1994 and 64/SS/1994 as well as the police case and the accused was convicted and sentenced for the offence punishable under Section 409. The trial Court after minutely going to the facts of all the cases held that the accused could not be tried on the same facts on which he was previously tried and convicted in Criminal Case No.109/SS/93 again and therefore, he was entitled to be acquitted of all the criminal cases 41/P/1994 with 63/SS/1994 and Criminal Case No. 61/SS/1994 and Criminal Case No. 64/SS/1994 in view of the provisions of Section 300 of the Cr.PC. As far as Criminal Case No.60/SS/94 is concerned, the trial Court held that there was no evidence to prove that accused had committed the offence of cheating and misappropriation and in the result, in all these cases, accused was acquitted by the common judgment. 5 Applicant, who argued in person, vehemently contended that in the criminal case no.109/SS/93, accused was tried and convicted for the offence punishable under Section 409 of the IPC but no charge was framed under Section 420 IPC or under Section 138 of the Negotiable Instruments Act and these are the distinct offences for which he can be tried again. According to him, the bar under Section 300 of the Cr.P.C. will not be applicable when accused is sought to be prosecuted and tried for different offences though facts may be similar or same. 6 After perusal of the record and the facts stated in the impugned judgment, there remains no doubt that the accused was prosecuted, convicted and sentenced for the offence under Section 409 in Criminal Case No.109/SS/93 on the basis of facts covered in Criminal Case No. 61/SS/94, 63/SS/94 and 64/SS/94 and it was also contended that the accused had acted dishonestly and had misappropriated the amount of Rs. 3,16,200/-. On the basis of same facts in the three cases, i.e., criminal case nos.61/SS/94,63/SS/94 and 64/SS/94 as well as police case, he had contended that the accused had issued cheques and the cheques were dishonoured. He had cheated him and misappropriated the amounts dishonestly. On the same facts, the accused was put to trial, in the previous case being 109/SS/93 and was convicted for the offence punishable under Section 409 only. 7 Section 300(1) of the Cr.P.C. reads thus, “300. 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 for which he might have been convicted under sub-section (2) thereof. “ From this it is clear that if a person has been convicted or acquitted of an offence, he is not liable to be tried again for the same offence. Not only this having been convicted or acquitted of such offence, he is not liable to be tried again on the same facts for any other offence for which a different charge might have been made under section 221(1) or for which he might have been convicted under sub-section (2) thereof. Section 221 deals with trial for each charge if they are based on a single act or series of act and it is doubtful which of several offences will be constituted if the facts are proved. In the earlier case, it was clear contention of the complainant that the accused had cheated him and misappropriated amounts and for the misappropriation or for criminal breach of the trust, he was convicted and sentenced. For the conviction for the criminal breach, it is necessary to establish that the misappropriation or conversion or disposal of the property was committed dishonestly. For the offence under Section 420, it is necessary to prove cheating and for the purpose of cheating also, it is necessary that accused must have deceived person fraudulently or dishonestly. The facts on which the accused was previously convicted are the same on the basis of which these four cases are filed and in subsequent trial same evidence, which was given in earlier case , will have to be given and, therefore, the accused gets protection from the 2nd part of Section 300(1) Cr.P.C. which provides that a person, who has been convicted or acquitted of an offence shall not be liable to be tried again on the same facts for any other offence for which different charges could have been framed. In that case, besides charge under Section 409, charge under Section 420 IPC could also be framed and both the charges could be proved on the basis of same facts and evidence. 8 Complainant relied upon several authorities in respect of his contention that even though the facts may be same, the accused may be tried separately for different offences. In Abdul Hamid v/s. Emperor 1936 (37) Cr.L.J. 492 , the accused had sworn false affidavit and thereafter, that affidavit was used by him. He was first tried and acquitted of the charges under Section 417. After acquittal, he was tried for the offences under Section 193 for swearing false affidavit. Trial was challenged on the ground that provisions of Section 403(3) Cr.P.C. 1898, equivalent to Section 300(1) Cr.P.C. 1973, he could not be tried second time on the same facts. However, Rangoon High Court held that these were two distinct offences. Swearing a false affidavit before the public authority was totally distinct from cheating by using that false affidavit in different transaction. In re Thangavelu Mudali AIR 1956 Madras 130 initially, the accused was tried for the offence of falsification of accounts under Section 477A while in employment of the complainant and he was acquitted. Thereafter, he was separately tried for the offence under Section 409 IPC. Madras High Court held that offence of breach of trust by employee was totally distinct from the offence of falsification of accounts and, therefore, second trial was not barred. In The State of Bombay v/s S.L.Apte and another, AIR 1961 Supreme Court 578 , one complaint was filed under Section 409 IPC and another complaint was filed under Section 105 of the Insurance Act. The Supreme Court held that these two cases were totally distinct from each other as their ingredients and scope were totally different. While in the offence of breach of trust , it is necessary to establish entrustment, dishonesty, misappropriation or conversion for the offence. under Section 105 of the Insurance Act, no such dishonest intention was required nor any entrustment was necessary. It was punishable for an offence of mere withholding property. Thus, none of these cases render any help to the present applicant. 9 Applicant also relied upon the judgment of Shri Sharan P. Khanna v/s. Oil & Natural Gas Corporation Ltd. And Anr. 2010 ALL MR (Cri) 3120 , which was decided by me. In that case, ONGC, the complainant, had initially filed a complaint under Section 138 of the Negotiable Instruments Act and later on, a separate case was filed under Section 420 of the I.P.C. It was found that the accused by making false representation had obtained possession of the property by issuing a cheque for re-payment of the deposit amount. The complainant handed over possession immediately on receiving the cheque. The cheque was dishonoured and the complaint was filed under Section 138 Negotiable Instruments Act. It was revealed that accused had stopped the payment immediately after taking back possession , which indicated that his intention was to cheat the complainant and that was dishonest act. Second trial for the offence under Section 420 IPC was challenged. This Court held that the ingredients and requirements for the prosecution under Section 138 N.I. Act are totally different from the ingredients and requirements for the offence of cheating under Section 420 IPC and, therefore, second trial is permissible and not barred under Section 300(1). 10 In my opinion, the facts of the present case are totally different from the facts in the authorities relied upon by the complainant in the present case. On the same facts, charges under Section 420 as well as under section 409 IPC could have been framed, in the first case. At that time, the complainant pressed the charge under Section 409 only. Accused was convicted and sentenced. On the basis of same facts and evidence, accused could not be tried again. It appears that the complainant, who is practising advocate and who conducts his cases himself, and who is not required to engage any advocate and to spend money, can afford to file as many cases as he desires. In the present situation, it appears that firstly, he prosecuted the accused by filing one criminal complaint and thereafter, on the basis of three cheques, he filed three complaints separately and one police case and thus, prosecuted the accused for the same offence in four more cases. It was nothing more than attempt to harass the accused by filing multiple cases on the basis of same facts. Taking into consideration this legal position, I find no fault with the findings of the trial Court that these three cases being Criminal Case No.41/P/94 r/w Criminal Case No. 63/SS/94 and Criminal Case No.61/SS/94 and 64/SS/1994 are barred under Section 300(1) of the Cr.P.C. 11 Coming to the last case being Criminal Case No.60/S/1994, that was not the subject matter of the earlier case. However, in this case, after minutely analysing evidence led by the complainant, the trial court found that accused had utterly failed to prove allegations. After perusal of the judgment and the evidence led by the complainant and the reasons given by the trial Court, I find no fault in acquittal in that case also. 12 In view of the facts and circumstances, I find no valid reasons to grant leave to prefer appeal against order of acquittal in all these four cases. 13 In the result, leave to prefer appeal refused. Application stands rejected. (J.H.BHATIA, J.)