Criminal Misc. M No.20158 of 2011

8th February, 2013

Petitioner Counsel: Mr. KULDEEP V. SINGH AHLUWALIA
Respondent Counsel: Mr. DEEPAK BALYAN, Mr. R.K. BANSAL

Cases Cited:
Kola Veera Raghav Rao Vs. Gorantla Venkateswara Rao & Anr., 2011 ALL SCR 254 =AIR 2011 SC 641 [Para 4,7,8]

JUDGMENT

JUDGMENT :- The petitioner prays for quashing of FIR No.86, dated 25.3.2011, registered under Sections 406, 420 IPC at Police Station Zirakpur, District S.A.S. Nagar, Mohali (Annexure P-1), against him.

2. The ground advanced to seek quashing of this FIR is that for the same very allegations, the petitioner has been convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") and sentenced of RI for one year has been imposed by Judicial Magistrate Ist Class, Ludhiana, on 17.1.2011. It is further pointed out that suit for recovery is pending before the Court of Additional Civil Judge (Senior Division), Dera Bassi, for the same allegations.

3. The impugned FIR has been registered by respondent No.2 against the petitioner. It is alleged that respondent No.2 has misled the police authorities while lodging this FIR. It is based on an agreement to sell dated 25.3.2006. The petitioner pleads that this agreement was fabricated by respondent No.2. As per the petitioner, he neither executed any agreement nor issued any cheque. On the same very allegations, respondent No.2 had filed a complaint No.508, dated 15.11.2007 under Section 138 of the Act before the Court of Judicial Magistrate Ist Class, Ludhiana. The petitioner stands convicted for an offence under Section 138 of the Act, for which he has been imposed rigorous imprisonment for one year coupled with fine of Rs.2000/-. Copy of the judgement is placed on record as Annexure P-2. The petitioner has preferred an appeal against this order and has been released on bail.

4. In addition, respondent No.2 has also filed a suit for recovery of the amount mentioned in the cheque bearing No.755954 dated 1.9.2007 before the Court of Additional Civil Judge (Sr.Division), Dera Bassi. This suit statedly is still pending. Counsel accordingly would plead that the dispute, if any, is of a civil nature, which has been converted into a criminal liability. The matter is already subjudice before the appellate Court. Counsel accordingly would plead that continuation of criminal proceedings against him for offences under Sections 406 and 420 IPC would be abuse of the process of the Court. The petitioner would also plead that he has just been harassed as respondent No.2 is an influential person. In support of his plea that filing of FIR and continuation of proceedings would be a double jeopardy, counsel has placed reliance on Kola Veera Raghav Rao Vs. Gorantla Venkateswara Rao and another, AIR 2011 Supreme Court 641 : [2011 ALL SCR 254].

5. Replies on behalf of the State as well as respondent No.2 have been filed. Respondent No.2 would allege that the petitioner has committed fraud with him and has misappropriated an amount advanced to him and, thus, he is left with no alternative remedy, except to get the FIR registered against him. Giving details of the facts, it is stated that the petitioner had entered into an agreement to sell dated 25.3.2006 with respondent No.2 for sale of Kothi with all rights. The sale consideration agreed was Rs.15 lacs. The petitioner allegedly received a sum of Rs.9.5 lacs from respondent No.2 and agreed to execute the sale deed on or before 4.6.2007. Later on, the market price of the house increased. The petitioner approached respondent No.2 and told that he was unable to sell his house. After further negotiation, they agreed to make a payment of Rs.32 lacs to respondent No.2 to settle the claim. The petitioner issued a cheque on 1.9.2007 for a sum of Rs.32 lacs drawn on Overseas Bank, Zirakpur. The petitioner had assured respondent No.2 that the said cheque shall be honoured, when presented. However, the same was dishonoured with the remarks 'account closed'. It is accordingly alleged that the petitioner has not only committed an offence under Section 138 of the Act but has committed offences under Sections 406 and 420 IPC. Similar stand is taken by respondent No.1 in the reply filed.

6. I have considered the submissions made.

7. The Hon'ble Supreme Court in Kola Veera Raghav Rao's case, [2011 ALL SCR 254] (supra) has observed that if the person is convicted for an offence under Section 138 of the Act, his subsequent prosecution under Section 420 IPC on the same facts would be barred under the provisions of Section 300 (1) Cr.P.C. The Court has drawn distinction between this Section and Article 20(2) of the Constitution of India. The provisions of Section 300 (1) Cr.P.C are as under:-

"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 subsection (2) thereof."

Article 20(2) of the Constitution of India reads as under:-

"No person shall be prosecuted and punished for the same offence more than once."

After making reference to these provisions, the Hon'ble Supreme Court has held as under:-

"6. Thus, it can be seen that Section 300(1) of Criminal Procedure Code is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Criminal Procedure Code states that no one can be tried and convicted for the same offence or even for a difference offence but on the same facts.

7. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Criminal Procedure Code applies. Consequently, the prosecution under Section 420, Indian Penal Code was barred by Section 300(1) of Criminal Procedure Code."

8. In view of the law laid down in Kola Veera Raghav Rao's case, [2011 ALL SCR 254] (supra), it can be said that the facts being same in both the cases, further prosecution of the petitioner under Sections 406, 420 IPC would be barred once he has been convicted for an offence under Section 138 of the Act. Counsel for the petitioner is justified in submitting that the allegations of Sections 406, 420 IPC were made in the complaint by respondent No.2 while seeking his prosecution under Section 138 of the Act but the Court still found him guilty of only for an offence under Section 138 of the Act and punished him for rigorous imprisonment for one year. The suit for recovery has already been filed. Ultimately, it is a case where the petitioner is alleged to have taken an advance and has backed out of the agreement. At best, offence under Section 420 IPC would be made out in case respondent No.2 would be able to establish that at the time of entering into this agreement, the petitioner had carried an intention to cheat him. The facts may, however, speak otherwise. It is alleged that price of the house had increased and subsequently they both negotiated and respondent No.2 agreed to accept a compensation of '32 lacs. Obviously, the facts may not disclose the offence of cheating. This is another reason, which has weighed with me to interfere in this case. Accordingly, the prosecution of the petitioner under Sections 406 and 420 IPC would be an abuse of the process of the Court. There is justification in the plea of the petitioner that the proceedings are primarily civil in nature and the civil suit has also been filed.

9. In view of the above, the petition is allowed. FIR No.86, dated 25.3.2011, registered under Sections 406, 420 IPC at Police Station Zirakpur, District S.A.S. Nagar, Mohali (Annexure P-1) and all subsequent proceedings arising therefrom are quashed qua the petitioner.

Petition allowed.