Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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(Guest)

Whether 2nd Trial permitted?

A person was prosecuted and acquitted in a case of S.138 of Negotiable Instruments Act.  After about one year in respect of the same transaction a case was registered u/s 420 of IPC.  Would the 2nd prosecution or the case of cheating would be hit by the bar of S.300 of Crpc.  If not, why it will not be hit by the bar of S.300 Cr.pc.



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 10 Replies


(Guest)
My research after the above post reveals as follows:-
 
V. Kutumba Rao vs M. Chandrasekhar Rao And Anr. on 20 March, 2003 Andhra High Court
 
In my considered opinion the offences under Section 420, IPC and Section 138 of the Act are distinct and separate offences. If a person fraudulently or dishonestly induces another person to deliver any property or to do or omit to do anything which he would not do or omit if he were not deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property commits an offence of cheating. Such a person commits the offence punishable under Section 420, IPC. In a prosecution under Section 138, Negotiable Instruments Act any inducement so as to make the other person to deliver any property etc. as defined in Section 415, IPC, is not an ingredient. If a person issues a cheque and subsequently if the cheque was dishonoured by the Bank for want of funds, etc. and thereafter even after issuance of demand notice, the said person fails to pay the amount covered by the cheque within the time stipulated by Negotiable Instruments Act, that person commits an offence punishable under Section 138 of the Act. The question of inducement to other person to part with any property to do or omit to do anything does not at all arise for a decision in a prosecution under Section 138 of the Act. The offence under Section 138 of the Act is not committed on the date of issuing the cheque. The offence happens after it was dishonoured by the Bank for specified reasons and thereafter even after demand the person concerned fails to pay the amount covered by the cheque to the other person. These facts do not fall for a decision in a prosecution under Section 420, I.P.C. Some times at the time of issuing the cheque a person may induce the other person to part with property, etc. If such inducement is dishonest or fraudulent he may be committing the offence of cheating and thereby he becomes liable for prosecution. If such a person later within the time stipulated under the provisions of Negotiable Instruments Act repays the other person amount covered by the cheque he will not be liable for prosecution for the offence under Section 138 of the Act but still he can be prosecuted for the offence of cheating if at the time of issuing the cheque he had fraudulently or dishonestly induced the other person to part with property, etc. In a prosecution under Section 138, Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under Section 420,I.P.C. mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, I.P.C. Therefore, the two offences covered by Section 420, IPC and Section 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr.P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and Section 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact or law to be given in prosecution under Section 138 of the Negotiable Instruments Act. The issue of fact and law to be tried and decided in prosecution under Section 420, IPC are not the same issue of fact and law to be tried in a prosecution under Section 138 of the Act. I, therefore, do not find any force in the contentions advanced on behalf of the accused for quashing the proceedings in C.C. No. 737 of 1999. Therefore, both the revision petition and quash proceedings are liable to be dismissed

RUPESH SHRIVASTAVA (Chief 09827932335)     20 July 2010

no body can prosectue for same offence and 420 of IPC is not made out  in cheque bounce matter.

Ayub S. Pathan (Legal Adviser)     21 July 2010

Mr. Anil kumar,

It's nice to see that you have an answer to your query. It certainely not amounts to

Double Jeopardy under section 300 cr.p.c. Research is good hobby. Post your queries after

such research it will be helpfull for other members to have correct legal Knowledge.

Beest luck.

N.K.Assumi (Advocate)     21 July 2010

Offences under section 138 of the Negotiable Instruments Act and section 420 of the Penal Code are different and the ingredients are different. Convictions for different offences separately is not barred under article 20 (2). In spite of prosecutions and convictions under section 138, there will be no constitutional bar in prosecution for an offence punishable under section 420 of the Penal Code and a prosecution will be if such an offence is made out.

MOHANA SUNDARAM (Advocate High court Madras. M-9840908555)     21 July 2010

if a person is acquitted for an offence and he is subsequently tried for the same offence, then he entitled for previlege under autrefois acquit, not under double jeopardy.

A.K.LAKDAWALA (LAW SUDENT)     04 February 2011

Dear All ,

I was working in the gulf from last 15 years and had sent money to my father to purchase an apartment which he did in his name and now after I returned from gulf and when I asked him to transfer the said flat in my name he refused to do so and instead demanded from me 25 lakhs for the transfer of the said flat .

I gave him post dated cheques and got the flat transferred into my name and later stop payment the cheques my father prosecuted me U/s 420 of IPC and I am now on bail and when I came out on bail he lodged a complaint under section 138 and a trial has begun.

Can you please tell me as to wether 2 trials are allowed legally and secondly can a father file a case against his son on stop payment cheque and get him prosecuted under section 138 whereas I am already on bail under section 420

Your advice will be appreciated.

LAKDAWALA

RUPESH SHRIVASTAVA (Chief 09827932335)     05 February 2011

of course 2 trial is permitted, because both are seperate  proceeding, section 138  is related to cheque bouncing matter and sec. 420 is related to the cheating offence.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 February 2011

Mr Mohana is right second trial not permitted.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 February 2011

Those facing such problems pl post the details for answer. Criminal appeal 1160 decided by SC on 1.02.2011 states for same facts no second prosecution.

1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     13 February 2011

I have posted this citation in files section.


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