Dismissed

N.Somashekar Reddy v. Yagga Mallesham

Telangana HC18 Oct 2022CRLP/3566/2019

Case brief

AI extract

What is this about?

Petition under Section 482 CrPC to quash proceedings for offences under Sections 406, 420, 448 and 506 IPC arising from a land-procurement transaction in which the complainant parted with Rs.3.25 crores. The court found prima facie material and held the prosecution not barred by Section 300(1) CrPC despite the petitioner's earlier conviction under Section 138 NI Act.

What the court decided

AI extract

N.Somashekar Reddy Vs Yagga Mallesham — Cheque Dishonour | Telangana HC (2022)

¶1

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION NO: 3566 OF 2019

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Between:

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N.Somashekar Reddy, S/o N.Narayan Reddy, Aged about 52 years, Occ: Business, Rl/o Lavanya Nilayam, Jaya Rami Reddy Layout, Venkateshwara Theatre Circle, Near Ankhal Town, Anekal, Bangalore

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...PETITIONERYACCUSED

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AND

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Yagga Mallesham, S/o Y. Ramulu, Aged about 60 Years, OCC Business, R/o H.NO 16-2-751/C/A./106,Tirumala Hills, Asmanaghad, Malakpet, Hyderabad.

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...RESPONDENT/DEFACTO COMPLAINANT

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The State of Telangana, Represented by its Public Prosecutor, High Court at Hyderabad

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...RESPONDENT/COMPLAINANT

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash all further proceedings against the Petitioner in CC No 217 of 2018 on the file of the Honorable Xll Addl Chief Metropolitan Magistrate at Hyderabad, in the circumstances mentioned above to meet the ends of justice.

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l.A. NO: 1 OF 2019

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings including appearance of the Petitioner in CC No 217 of 2018 on the file of the Honorable Xll Addl Chief Metropolitan Magistrate at Hyderabad , pending disposal of the main petition.

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l.A. NO: 2 OF 2019

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Between:

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Yagga Mallesham, S/o Y. Ramulu, Aged about 60 Years, OCC Business, F/o H.NO 1 6-2-751lC/tu106,Tirumala Hills, Asmanaghad, Malakpet, Hyderabad.

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...PETITIONER/RESPONDENT/DEFACTO COMPLAINANT

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AND

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N.Somashekar Reddy, S/o N.Narayan Reddy, Aged about 52 years, Occ: Business, R/o Lavanya Nilayam, Jaya Rami Reddy Layout, Venkateshwara Theatre Circle. Near Ankhal Town, Anekal, Bangalore

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...RESPON DENT/PETITION ERYACCUS ED

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The State of Telangana, Represented by its Public Prosecutor, High Court at Hyderabad

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...RESPONDENT/RESPONDENT/COMPLAINANT

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to vacate the interim orders passed on 0410712019 in l.A. No. 1 of 2018 in Crl.P.No. 3566 of 2019.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri N. NAVEEN KUMAR, Advocate for the Petitioner and the Additional Public Prosecutor on behalf of the Respondent No.2 and of Sri K.L.N. KRISHNA MUTHY, Senior Advocate for Ms. Kiranmayee.

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The Court made the following: ORDER

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THE HON'BLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION No. 3566 of2Ol9

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ORDER:

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This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure for quash of the^proceedings against the petitioner-/accused in C.C.No.217 of 2018 on the^{file of XII} Additional Metropolitan Magistrate at Hyderabad registered^for the offence under Sections 406, 448,506 of the Indian^Penal Code.

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The brief facts which necessitated the^petitioner to^file this Criminal Petition are as under:

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a) Tlne de-facto complainant has lodged a^private complaint before the learned XII Additional Chief Metropolitan Magistrate at Hyderabad alleging that the^petitioner was^introducedby LW2 to the de-facto complainant stating that the^petitioneris doing real estate business in Karnataka and^preparedto procure land at reasonable prices to the de-facto complainant. The petitioner has assured the de-facto complainant that^after making part payment he would see that sale transaction^would be colcluded with the registration of the sale deeds.^{On the} \ inducement of petitioner, the de-facto cornplainant is^has

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accepted to invest money. It is also the case of the prosecution that de-facto complainant brought some persons claiming themselves to be owners of agricultural land near Karpura Village and made the de-facto complainant to believe that he has been dealing with prospering vendors, who are willing to sell the land to the de-facto complainant. The accused and others have shown some iand to tlrre de-facto complainant.

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b) In the month ol April, 2011, the petitioner came to the house of the de-facto complainant and in the presence of LWs 2 and 3, the de-facto complainant agreed to purchase 62 acres of land for an amount of Rs.32 lakhs each for three acres, which is Rs.53 lakhs. An amount of Rs. 18 lakhs was paid in advance to the petitioner by tlne de-facfo complainant to procure the land from different persons. Subsequently, tLre d-e-facto complainant has paid an amount of Rs.3,2S,00,OO0/- to the petitioner under different dates. The petitioner started dodging the matter and on enquiry made by the de-facto complainant, he came to know that the petitioner has not transacted with any of the landlords and not paid any advance to anybody and has not invested in any land for the de-facto complainant.

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c) On the insistence of the^{de-factocomplainant, an} agreement was executed on 14.06.2013 in^{favour of tkle d.e-facto} complainant buy the accused in the^{presenceof LWs 2 and 3} agreeing to procure the land. However, the^{petitioner has not} made any efforts and he did not^procure any land^{and he has} not paid money to any of the Iand owners. On the^instanceof the de-facto complainant, the^petitioner has^issuedcheque bearing Nos.79i913, 791914 and 791915^{dated 01.O3.2O16for} Rs. 50 lakhs each drawn on Karnataka Bank^Limited, Banashankari II Stage, Bangalore in favour of the^de-facto complainant towards part payment. When the^{said cheques} were presented by the de-facto complainant, they^{were returned} with an endorsement "insufficient funds".

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d) The said complaint was forwarded by the learned^XII Additional Chief Metropolitan Magistrate at Hyderabad^under Section 156 (3) of the Code of Criminal^{Procedure to the} Vanasthalipuram Police Station for further^{investigation.} Accordingly, Police, Vanasthalipuram, has registered a caseⁱⁿ Crime No. 53 of 2Ol7 against the^petitioner. After completion^of investigation, charge sheet was iiled against the^petitioner under Sections 4O6, 42O,44a and 506 ofthe Indian^{Penal Code,} the cognizance of which was taken on file as C.C.No.217 of²⁰¹⁸

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on the file of learned XII Additional Chief Metropolitan Magistrate at Hyderabad. Aggrieved by the same, the petitioner_ accused has Iiled the present criminal petition to quash the proceedings against the petitioner-accused in c.c.No.217 0f 2O18 on the file of learned XII Additional Chief Metropolitan Magistrate at Hyderabad on the following grounds:

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i) The petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act in C.C.No .129 of 2OlT on the file of learned Xi Special Magistrate at Hastinapuram and thus, the prosecution for the offences under the provision of Jndian Penai Code in C.C.No.21 Z of 2Olg on the same allegations before the learned XII Additional Chief Metropolitan Magistrate at Hyderabad will amount to double jeopardy and barred under Section 3OO (1) of the Code of Criminal procedure.

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ii) As per principle 1aid down in Kolla Veera Raghav Rao v. Gorantal Venkateshwara Rao and another, a person convicted under Section 138 of the Negotiable Instruments Act calnot be tried under any other provision of Indian penar code on the same set of facts

¶45

iii) The facts narrated in both the cases are the same and also the r.r,itnesses examined as pWs 1 to 3 in the case under

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Section 138 of the Negotiable^{Instruments Act are cited as LWs} 1to 3 in the charge sheet in the^{case on hand and their} depositions in the case under^{Section 138 of the Negotiable} Instruments Act are

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Heard Sri N.Naveen Kumar,^{learned counselfor the} petitioner, Sri K.L.N.Krishna Murthy,^{learnedsenior counsel} representing Sri^K. Kiranmayee,^{learned counselforthe} respondent No.1 and Sri^{S.Ganesh, learned Assistant Public} Prosecutor.

¶49

It is submitted by the learned^{counsel for the petitioner} that even if the contents of^{charge sheet are correct,still no} offence is made out^{and there are no ingredientsto allege that} the petitioner has committed^{offence under Sections 406' 42O'} 448 and 5O6 of the Indian Penal Code.

¶50

On the other hand, learned^{counsel for the respondent} No.2- de-facto complainant has submitted^{that inorder to} purchase the property, tLlLe de-facto complainant has^parted with Rs.3.25 crores, which amounts to^{entrustmentof the} property and the petitioner was expected to^purchasethe immovable property from him. However, he has^{misappropriated} the s{id amount and the used the said amount^{for himself and} 't-

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did not return the money. Therefore, the ingredients of Section 406 of the Indian penal Code are very much attracted.

¶54

The learned counsel for the de_facto complainant has submitted that in order to consider an application under Section 482 of the Code of Criminal procedure, the Courts are expected to consider only FIR and not required to go through the statements of the witnesses, interpret and veracitSr of the evidence of the witnesses cannot be considered. The learned counsel for the de-facto complainant has cited an authority reported in Rajeev Kourav v. Baisahab and othersr, wherein it was held as under:

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"8. We do not agree tuith the submissions made on behalf of Respondent l{os. I fo 3. The conclusion of the High Court to quash the criminal proceedings is on the basis o,f jls assess ment of the statements recorded under Section 161 CrpC. Statements of rpifnesses recorded under Section 161 CrpC being uhollg inadmksible in euid,ence cannot be taken into consideration bg the Court, while ad_judicating a petition filed under Section 482 CrpC."

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7 . In the contrary, learned counsel for the petitioner has submitted that it is settled legal position that the Court can take not only FIR but also other connected material available on '^{AIR2020sc qog} I

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record including the statements of witne sses in order to see as to whether prima-facie case is made out against the petitioneraccused or not.

¶59

In Kaptan Singh v. The State of Uttar Pradesh and

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others2, wherein it was held as follows:

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"At the outset, it is required to be noted that in the present case the High Court in exercise of pou)ers under Section 482 Cr.P.C. has quashed tLe ciminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. /t is required to be noted that uhen he High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, bg the time the Inuestigating Officer after recording tte statement of the uitnesses, statement of the complainant and collecting the euidence from the incident place and afier taking stotement of the independent uitnesses and euen statement of the accused persons, has filed^{tle charge-sheet beforethe Learned Magistrate} the offences under Sections "fo, 147, 148, 149, 406, 329 and 386 of IPC and euen the leamed Magistrate also took tle cognizance. From tlrc impugned^judgment and order passed bg the High Court, it does not appear that the High Court took into consideration the mateiol collected during the inuestigation/ inquiry and euen the

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2 AIR 2021 SC 3931 \

statements recorded. If the petitiort und.er Section 482 Cr.P.C. utas at the stage of FIR in thot case the allegations in the FIR/ Comptaint onlg are required_ to be considered and uhether a cognizable offence is disclosed or not is required. to be considered,. Hou.teuer, thereafier tahen the statements are recorded, euidence is collected and the charge_sheet is filed after conclusion of tLe inuestigation/ inquiry the matter stands on different footing and ttLe Court is required to consider the mateial/ euid.ence collected. during the inuestigation. Euen at this stage also, as obserued and held bg this Court in catena of decisions, the High Court is not required_ to go into the meits of the allegations and/ or enter into the merits of the case as if the High Court is exercising the appellate juisdiction and_/ or conducting the tial. As held bg this Court in the case of Dineshbhai Cho.ndubhai Patel (Supra) in order to examine as to tuhether factual contents of FIR d_isclose any cognizable offence or not, the High Court cannot act like the Inuestigating agenca nor con exercise the pou,ers like an Appellate Court. It is further obserued and held that question is required- to be examined keeping in uieut, the contents of FIR and. prima facie mateial, if ang, requiring no proof. At such stttge, the High Court connot appreciate euid-ence nor can it drato its ouln inferences from contents of FIR and rnateial relied on. It is furtLler obserued. it is more so, ttlten the mateial relied on is d.isputed". It is

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further^{obserued that in such a situation,it becomes} tLe job of the Inuestigating Autlwrity at such stage to probe and then of the Court to examine questiotls once the cLarge-sheet is frled along uith such mateial as to LtouL far and to uhat extent reliance can be placed on such material."

¶69

Considering the above, since the petitioner is seeking quashment of charge sheet, entire materiai in the charge sheet, including statements of witnesses under Section 161 of Code of Criminal Procedure, can be considered.

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In order to constitute an offence under Section 406 of the Indian Penal Code, the prosecution is expected to place materiai before the Court that the petitioner was entrusted with some money and he has misappropriated funds and utilized the said funds for his own use other than for which it was entrusted to. In the case on hand, aliegations leveled against the petitioner is that the de-facto complainant has admittedly given Rs.3.25 crores when the petitioner has volunteered that he would procure the land in Karnataka for reasonable price for the de-facto complainant. However, the petitioner neither procured the land for the de-facto complainant nor paid money to the prospering vendors of the land but he has misappropriated the money pnd used for himself. So, it is a classic case, where )

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Section 406 of the Indian penal Code is applicable to the facts of the case

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1 1. In Vijay Kumar Ghai and others vs. The State of West Bengal and others3 the Hon,ble Supreme Court heid at paragraphs 31 to 36 as under:

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"3 I . Section 4 1S IpC defines^.,cheating" which reads as under:

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"4t5. Cheatingr.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything *hi.h he would not do or omit if he were not so deceived, anci which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or propert5r, is said to^.,cheat,,.,,

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The essential ingredients of the offence of cheating are:

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Deception of any person

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(a) Fraudulently CT dishonestly inducing that person-

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(4 to deliver any property to any person; or (ir) to consent that any person shall retain an]' property; or

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(b) intentionally inducing that person to do or omit to do anything which he would not do or r>mit if he were no so deceived, and which act

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3 (2022) 7 SCC 124

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or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

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A fraudulent or dishonest inducement is an essentiai ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

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Section 42O IPC dehnes "cheating and dishonestly inducing delivery of property" which reads as under:

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"42O. Cheating clnd dlshonestlg inducing delioery of propertg.-Whoever cheats and thereby dishonestly induces 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 capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and sha11 also be liable to fine."

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Section 42O IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the properly is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.

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To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:

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(4 The representation made by the person was false.

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(nl The accused had prior knowledge that the representation he made was false.

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(in) The accused made false representation $-ith dishonest intention in order to'deceive ihe person to whom it was made.

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(iu) The act where the accused induced the person to- deliver the property or to perform or to absl.ain from any act which the person woul,C have not done or had otherwise "o--itt"d.

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As observed and held by this Court in R.K. Vij.agasarathg v. Sudha Seetharam IR.K. Vtjayasarathgv. Sudha Seetharam, tZOf St i6 'iCC 739 : (2O2O) 2 SCC (Cri) asal , tfr. ing.Lai..,t" to constitute lollou.,s: an offence under Sectio " 4ZO are as

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(r) a person must commit the offence of cheating under Section 415; and

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(ir) the person cheated must be dishonestly induced to:

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(a) deliver property to any person; or

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(b) make, alter or destroy valuable security or. anything signed or sealed ald capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence undei Section 42O lp1."

¶101

It is contended by the learned counsel for the petitioner that there is no record to show that the petitioner has induced the de-facto complainant from the inception and thereby the de-facto complainant has parted with either money or valuable security. In the case on hald, the petitioner was introduced by

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LW2 to t}:e de-facto complainant, on which the de-facto complainant has expressed his intention to buy lands in Karnataka. Learned counsel for the petitioner has contended that since the petitioner has not voluntarily came to the de-facto complainant and instead it is the de-facto complainant, who has called the petitioner, it cannot be said that there is no material to show that from the inception the petitioner has dishonest intention to cheat or deceive tlne de-facto complainant.

¶104

Learned counsel for the petitioner has relied upon an authority in V.P.Shrivastava v. Indian Explosives Limited and othersa, wherein Honourable Supreme Court held as follows:

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In our uieu.t, a mere mention of the words 'defraud' and "ch.eat" in para 12 of the complaint, in the setting that these houe been used, i.s not sufficient to infer that the appellants had dishonest intention ight at tLe beginning uhen, demonstrablg, after due deliberations a tripartite agreement uas signed, tohich, under the giuen circumstances at that juncture, uos considered to be in the interest of all the three parties to tLre agreement. In this regard, it utould be useful to aduert to the follou.ting

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4 (2010) l0 Sqpreme Court Cases 361 \

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obseruations made bg this Court in AniI Mahajan Vs. Bhctr htdustries Ltd. & Anr. 1 1:

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"The substance of the complaint is to be seen. Mere use of tlrc expression 'cheating' in tle complaint is of no consequence. Except mention of the utords^'deceiue, and.^-cheat, in tLE complaint jlled before ttLe Magistrate and 'cheating' in the complaint fited" before tLe police, there is no auerment about th.e deceit, cheating or fraudulent intention of the acansed at tLrc time of enteing into MOU utherefrom it can be inferred that the accused had. tLrc intention to d.eceiue the complainant to pag.,,

¶111

It is to be noted that the petitioner has not voluntarily approached the de-facto complainant and only on the invitation of the de-facto complainant and his friend LW2, the petitioner has approach ed, the d.e-facto complainalt. However, the issue is not, how the meeting of the d.e_facto complainant and petitioner has taken place. The issue is whether the petitioner has induced the de-facto complainant in respect of procuring of land and other connected aspects. According to the prosecution, when the de-facto complainant has expressed his intention to purchase the land, the petitioner has induced t:ne de_facto

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complainant that he would procure the land for the de-facto complainant at reasonable price, so that the de-facto complainant would get huge profits in future. It is not the case of the petitioner that he has given money to various farmers_ vendors, however, those farmers-vendors have subsequently could not keep up their promise and have deceived the petitioner and thereby the petitioner could not procure the rand for tLre de-facto complainant.

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The pedtioner having taken huge money of Rs.3.25 crores, has not procured not even a single acre of land. Apart from that the petitioner has gone to the extent of taking the de-facto complainant to the fake farmers pretending that they are the vendors of the land, who are going to sell the land to the de-facto complainant and subsequently he has not returned the money. Therefore, this conduct of the petitioner would certainly demonstrate that the petitioner with an intention to deceive the de-facto complainant from the inception he has induced the de-facto complainant to deliver/pay huge sum of Rs.3.25 crores. If the petitioner has done any overt-act in furtherance of his intention to procure the land to de-facto complainant like payment of money to the farmer and getting the agreement executed in respect of some land registered in the name of the \

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de-facto complainant, things^{wouid have been different.} Therefore, it is a clear case, where^{the intentionof the petitioner} can certainly be^gathered, which is^to take^{moneyfrom the} de-facto complainant and not to^get the^{landregisteredand} utilized the money for his own use.^{Therefore,the petitioner} cannot say that there is no^{pima-facieagainst the petitioner.}

¶118

The other allegation against the^petitioner is^{for the} offence under Sections 448^{and 506 of the Indian PeqalCode.} It is alleged by t!r..e de-facto complainant^{that on 29.O5.2016t}:.e} petitioner went to the house of th.e de-focto complainant, demanded tJne de-facto complainant^{to return the cheques given} by him and threatened with dire consequences.

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17 . In order to fasten the criminal liability^againstthe petitioner-accused for the offence under Section 506 of^the Indian Penal Code, the^prosecution is^{expected to prove that the} person accused of the offence shall threaten another with^any injury to the reputation,^property, or his^{personwith an} intention to cause alarm to that^person to do any act^whichhe is not legally bound to do.

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According to the learned counsel^for the^{petitioner, there} are no grounds to proceed under^{Section 506 of thg-Jndian} ll

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Penal Code, and the^{mere mentioningthat the accused has} threatened the de-facto^{complainant with dire consequences} itself does not constitute^{offenceunder Section 506 of the} Indian Penal Code,^{unlessthe overt acts committed by the} accused are mentioned against^{tJne de-factocomplainant'} Learned counsel for the^{petitioner has taken this Court to the} statements of the^{witnesses under Section 161 of Cr.P'C',i e',} two statements of LW1^{and one statement of LWs2 and 3' It is} further submitted that if the^{statementsare takeninto} consideration, no offence^{is madeout.}

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karned counsel for the^{petitionerhas submitted that} mere mentioning that the^{accusedhas criminallytrespassed,} does not serve the^purpose and^{the offenceunder Section 448 of} the Indian Penal Code speaks^{that the petitioner shall trespass} into the property with criminal^intention.

¶124

On going through the^{contents of the complaint,} statements of witnesses recorded^{underSection161 of Codeof} Criminal Procedure and material^{on record, this Court is of the} opinion that the learned counsel^{for the petitioner though made} out^qround that there are^{number of discrepancies in the case} ^tr of the de-facto complainant^{or in the charge sheet filed against}

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him for the offences under Sections 448 and 506 of Indian penal Code, still there is primafacie material against the petitioner in respect of offences under Sections 448 and 506 of Indian penal Code. Truth or otherwise of the facts alleged by the de_facto complainant and other witnesses will have to be tested before the trial Court, until then, considering the material on record, it cannot be said that there is no primafaice case against the petitioner for the offences under Sections 44g and 506 of Indian Penal Code.

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l,earned counsel for the petitioner has submitted that continuation of the proceedings are hit by Section 3OO of the Code of Criminal procedure as on the same set of facts, the d.efacto^complainant has filed C.C.No. C.C.No.217 of 2O1g on the file of XII Additional Metropolitan Magistrate at Hyderabad for the offence under Section i 3g of the Negotiable Instruments Act and after full - fledged trial, the petitioner was found guilty and thereby the present case on the same set of facts cannot be permitted to continue. In support of his contention learned counsel for the petitioner has relied upon an authority in Kolla

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Veera Raghav Rao v'^{GorantalVenkateshwaraRao and}

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anothers, wherein^{it was heldas follows:}

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"Learned counsel for^{the appellant submitted} that tle appellant u)as^{alreadyconuicted} under Section 138^{of the NegotiableInstruments Act,} 1881 and hence he^{could not be again tried or} puni.shed on the same facts^{under Section 420 or} ang other^{prouisionof IPC or any other statute.We} find force^{in lhis submission.}

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It may be noticed that^{there is a difference} betueen the language^{used in Article 20(2) of the} Constitution of India^{and Section300(1)of} Cr.P.C.. Article²⁰⁽²⁾ states:^{"no person shall be} proseanted and punished for^{the same offencemore} than once."

¶134

CRIMINAL APPEAL NO.^{1160OF 2006 On the} other hand, Section^{300(1)of Cr.P.C. States:"300-} Person once conuicted^{or acquitted not to be tied} for same office-⁽¹⁾ A^{person utho hasonce been tied} bg a Court of competent^juisdiction for^{an offence} aid conuicted- or^{acquitted of such offenceshall,} uhile such conuiction^{or acquittal remainsin} force, not be liable to be tied^ogain for^{the sameoffence,} nor on the same facts for^{any other offence} for^rahich a different chorge from^{tlrc one made againsthim} might haue been made under^{sub- section(1)} of section 221 or for uLhich he^{might hauebeen} conuicted under^{sub-section(2) thereof,"}

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Thus, it con be seen that Section^3OO(1) of tl'Le Cr.P.C. is wider^{than Article20(2) of} Constitution.^{While, Article20(2) of the Constitution} only states that^{'no one can be prosecuted and} punished fo, the same offence^morethan once', Section^3OO(1) of^{Cr.P.C.states that no one} can be tried ond conuicted for^{the same offenceor} euen for a different^{offencebut on the same} facts.

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5 l2ol ll 2 Supreme Court Cases 703

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In the present case, although the offences are different but the facts are ttrc "i^.. i.il".,,'il-"ri", :?:!y_"!.^{cr.p.t.appties. c",i"ii"i7,irl'-',n} prosea)trcn under Section 420, IpC'was "'baned bg Section 300(1) of Cr.p.C.

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The Appeat is allowed" and. the impugned jud.gment of the High Coun rc set asi(lc ,,

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Section 30O(1) of the Code of Criminal procedure iS

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extracted hereunder:

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. "3O0.^person once conuicted or acquitted. not to be tried for same offence.

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^ (1)A person who has once been tried bu a ?::-n .of ,^oetent^{juri-sdictii"'} i, ""'' ri",i"JZ"a :?:i,"::!^{or..acquitted of sucholfence} i,:i: ":"lot:o!^{or acquittat remains in} Jorce, "ir",t),-,_,lna"nor be :r::-*^{be.triedagainfor the same oi""";',} ;;; "" ttte same facts for anu sll7s7 o11.""i" jor-Lii.n " dr{.f1r.n, charge from ih" on. made against him might haue been made und.e_r sub_ "iJri.,""iii "f section 22j, or for u.ftich n^{-^ignl"} ;'ir'",/.",r. conuicted under sib- section (2) the-r'Jj. "^{''quL uc't}

¶145

In another authority reported in Sangeetaben Mahendrabhai patel v. State of Gujarat and others6, the Honourable Supreme Court held as follows:

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"26. Leamed counsel for tle appellant has furtlrcr ptaced_ reliance on tLLe jud.gment in G. Sagar Suri & Anr. u. State of U.p. & Ors., (200O) Z iCC 636, wh.erein duing the pend.ency of the proceedings under Section 138 N.I. Act, proseantion

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6 2012 (71 scc 621

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under Sections 406/420 IPC hod been^launched. This Court quashed th-e criminal^proceedings under Sections 406/ 42O IPC, obseruing^{that it rttould} amount to abuse of process of laut.^In fact,^{the i.ssue} as to whether the ingredients of both^{the offences} were same, had neither been^{raisednor decided.} TtLerefore, the ratio of that^{judgment does not haue} application on the facts of this case.

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Same remained the^position so far^{cts the} judgment in Kolla Veera Raghau Rao u. Gorantla Venkatesutara Rao & Anr., (2011) 2 SCC 703,^i-s concented. It hc.s been held therein that^{once the} conuiction under Section 138 of N.I. Act hos^been recorded, the question of trying a same^person under Section 420 IPC or ony other^prouision of IPC or ang other statute is not^{permissiblebeing} hit bg Article 20(2) of the Con stitution^{and Section} s00(1) Cr.P.C.

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Admittedlg, the appellant had^{been tried} earlier for the offences punishable under^ttLe prouisions of Section 138 N.I. Act and the case is sub^judice before the High Court.^{In the instantcase,} he rb inuolued under Sections^{406/ 420 read} uith Section 114 IPC. ln the proseantion under Section 138 N.I. Act, the mens rea^i.e. fraudulent^{or dishonestintention at the time of} issuance of cheque is not required to be^proued. Hotueuer, in the case under IPC inuolued herein, the

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\ d--

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issue o/ mens rea may be releuant. The offence punishable under Section 42O IpC is a seious one as the sentence of 7 Aears can be tmposed. In the case under N.I. Act, there is a legal presumption thot the cleque had been issued for discharging the antecedent liabilitg and that presumption can be rebutted only by th.e person uho d_ra uts the cheque. Such a requirement is not there in the offences under IPC. In tLe case under N.I. Act, if a fine is imposed, it is to be ad.justed. to meet the lega y enforceable liabilitg. There cannot be such a requirement in the offences und.er IpC. The case under N.I. Act can onlg be initiated bg filing a complaint. Houteuer, in a case under tlle IpC such a condition is not necessary.

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There mag be some ouerlapping of facts in both the cases but ingredients of offences are entirelg different. Tluts, the subsequent case js not barred bg ang of tle aforesaid. stah::tory prouisjons. ,,

¶156

It is the contention of the learned counsel for the petitioner that contents in C.C.No. 129 of 2OlZ and C.C.No.2 l7 of 20 18 are one and the same. On considering the entire material on record, this Court is of the opinion that the facts in both the cases are not one and the same. C.C.No .129 of 2OlZ is filed for the offence under Section 13g of the Negotiabie Instruments Act on the ground that.the petitioner has borrowerl

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z-)

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Rs.3.25 crores alleging that he would procure land from^various vendors for the de-facto complainant, however, he could^not procure any land and he has not given money to any of the vendors as advance and he has utilized the money given by the de-facto complainant by himself and misappropriated the same for his own purpose and on insistence of the de-facto complainant the petitioner has not only executed an agreement but also issued three cheques for Rs.50 lakhs each and the said cheques were dishonoured on presentation in the bank.

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On the other hand the contents of charge sheet in the case on hand are that the de-facto compiainant on the inducement made by the petitioner has given Rs.3.25 crores to the petitioner for giving same to the prospering vendors so that the de-facto complainant can purchase the Iand.

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On going through the entire transactions, the petitioner has committed two set of offences. Initially the petitioner has allegedly induced th,e de-facto complainant, took some persons and making the de-facto complainant to believe that they are the farmers, who are intending to sell the land to the de-facto complainant and the petitioner has also shown some lands to the de-facto complainant and collected Rs.3.25 crores stating

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that he would pay the money to the farmers, however, he has utilized the same for his personal use.. Neither the petitioner has returned the money nor procured the land nor gave the money to any farmer. Upto this stage, according to the prosecution, the petitioner has committed the offence punishable under Sections 420 and 406 of the Indian penal Code. Subsequently ,^{onthe insistence} of the cle_facto complainant, the petitioner has not only executed an agreement but also gave three cheques of Rs.S0 lakhs and they were dishonoured on presentation of the cheques for discharge oi money taken by him from the de-facto complainant on the pretext of procuring land. The offence is said to have committed when the cheques given by the petitioner were dishonoured and that made the de-facto complainant to file complaint under Section i 38 of the Negotiable Instruments Act.

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Therefore, the offence under Sections 4O6, 42O of tne Indian Penal Code is one set of offence allegedly committed and at subsequent stage the offence under Section 13g of the Negotiable Instruments Act was committed. The contention raised by the learned counsel for the petitioner that the case on hand has to be quashed on the doctrine of .,double jeopardy,, will not apply to the facts of the case as offence alleged to have

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been committed by the^{petitioner are much prior to the} commission of offence^{underSection 138 of the Negotiable} Instruments Act.^{It is true that there are money instances,} wherein, in case, if^{cheque was dishonoured,the aggrieved} person may frle complaint under Section^{138 of the Negotiable} Instruments Act and also^{Iile complaint beforethe court under} Section 420 of the^{Indian Penal Code for givingthe chequeswith} a dishonest intention^{inspiteof knowing that the said cheque} would be dishonoured. It^{held by thls Court inoPfS} matketing (P) Limited and^{others v. State of A.P. and} othersT hereunder:

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"27. In ttrc result, ute^{hold that (i) euen-after} introduction of^.section138 of^{tlrcNegotiable} Instruments Act,^{prosecution under Section 420 IPC} is maintainable in^{caseof dishonourof cheques or} post-dated cheques issued touards^{poAmentof pice} of the goods^{purchased or hand loan taken, or in} di.scharge of an^{antecedent debt ortoutards} payment of goods supplier,^{earlier, if the charge-} sheet contain s an^{allegationthat the accused had} dishonest intention^{not to pag euen at the time of} issuance of tlrc^{clLeqte,and tle act of issuing the} cheqte, uhich utas^{di,shonoured,caused damage to} his mind, body^{or reputation,} **-^{(ii) piuate complaint or}

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? MANU/AP/0119/2001

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FIR alleging offence under Sectton 42O IpC for dishonour of cheques or post-d.ated. cheques cannot be quashed under Section 482 Cr.pC if the auermetlts in the complaint shout that the acqtsed. had, with a dishonest intention and" to cause damage to his mind., bod.g or reputation, issaed the cheque uthich utas not honoured.. point No.2 is ansutered accordinglg.,

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In view of the rationale laid down in the above said authorit5r of High Court of Andhra pradesh, it is clear that even if the petitioner was found gu ry for the offence under Section 138 of thl Negotiable Instruments Act, ih. ."". registered against the petitioner under Section 42O of the Indian penal Code shall continue.

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29' In the case on had, the facts of both the cases are not similar. As already observed, if the case on hand under Section 42O of the Indian penal Code is registered on account of the fact that the cheques issued by the petitioner were dishonoured and to some extent the contention of the petitioner can be accepted, if the charge sheet filed by the police under Section s 42O, 406 and othei offences under the provisions of Indian penal Code are not in respect ofdishonor of the cheque.

t \

The petitioner was charged^{for the offence on the ground} that the petitioner has borrowed^{Rs.3.25crores and introduced} some persons to tlrre de-facto^{complainant pretendingthat they} are the farmers, who are^{goingto sell the land and later failed to} procure land to tlre de-facto complainant^{and apart from that he} has misappropriated the^{said ainount and} did^{not returnthe} money. The basis for charge^{sheet is not the dishonorof} cheques at all. Therefore, as long as^{charge sheet is not filed} against the petitioner on account of discharge of^{the said} cheques, the petitioner cannot^contend that^{since he was} already convicted for the offence under^{Section138 of the} Negotiable Instruments Act, the^{proceedingsin C.C.No. 277 ol} 2O18 on the file of XII Additional Metropolitan^{Magistrate at} Hyderabad cannot be quashed.

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Therefore, ifa cheque has been dishonoured^{and case has} been registered for the offence under Section^{I38 of the} Negotiable Instruments Act and if another case is registered^by the Police for the offence under Section^42O of^{the Indian Penal} Code for dishonor of the cheque, case under^{Indian Penal Code} cannot be quashed as the case for offences^{under Section138 of} the Negotiable Instruments Act and the case for the^offence under Section 42O of tLre Indian Penal Code are maintainable,ⁱⁿ

case, if it is proved that the cheque was issued with an intention of cheating from the inception.

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Accordingly, the Criminal petition is dismissed. The trial Court shall proceed with the case C.C.No. 272 of 2Olg on the file of XII Additional Metropolitar Magistrate at Hyderabad on merits, uninfluenced by the observations and comments made by this Court in this order.

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As a sequel, pending miscelialeous applications, if any, shall stand closed.

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To,

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Sd/- K. AMMAJ ASSISTANT REGIST //TRUE COPY//

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sECTto FFICER

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L The Xlt Additional Chief Metropolitan Magistrate at Hyderabad.

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