Double jeopardy is applicable in prosecution U/S 138 of NI Act and s.420 of IPC?

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.Revision No. 170 of 2015

Date of Order 13th April 2016

Rajeshwar Sabarwal son of Shri O.P. Sabarwal
Vs
State of H.P.

Coram :The Hon’ble Mr. Justice P.S. Rana, J.

Citation: 2017 CRLJ1222

Brief facts of the case

2. There is recital in final police report filed under Section 173 of Code of Criminal Procedure 1973 that w.e.f. 16.01.2011 to 01.03.2012 there was business transaction between the complainant Chuni Lal Chauhan and accused relating to business of apples and mangoes. There is recital in police report that accused Rajeshwar Sabarwal had purchased 276853 boxes of apples and mangoes from complainant Chuni Lal Chauhan. There is also recital in police report that total cost of 276853 boxes was ` 467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). There is further recital in police report that accused Rajeshwar Sabarwal had paid an amount to the tune of `254399480/- (Rs. Twenty five crore forty three lacs ninty nine thousand four hundred and eighty only). There is recital in police report that accused Rajeshwar Sabarwal did not pay an amount to the tune of `212916497/- (Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and ninty seven only) to complainant Chuni Lal Chauhan. There is further recital in police report that accused Rajeshwar Sabarwal told that he was retired from army from the post of Colonel and is running the business in the name of Tara Business Group. There is recital in police report that accused also told that accused used to supply apples to army and on 06.05.2011 complainant Chuni Lal Chauhan was invited in the function of Punjab University Chandigarh and complainant was honoured with best apple supplier to defence authorities. There is recital in police report that during investigation it was observed that accused Rajeshwar Sabarwal was not retired as Colonel from army. There is also recital in police report that accused Rajeshwar Sabarwal with dishonest intention of cheating informed the complainant that accused was retired from army from the post of Colonel. There is further recital in police report that accused Rajeshwar Sabarwal was not Colonel in the army at any point of time. There is recital in police report that accused Rajeshwar Sabarwal also did not supply apples and mangoes to the army authorities. There is also recital in police report that accused has committed cheating with complainant under Section 420 IPC to the tune of ` 212916497/-(Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and ninty seven only).

3. Learned trial Court vide order dated 21.3.2011 held that there exists primafacie material to frame charge against accused under Section 420 IPC. Learned trial Court framed charge against accused under Section 420 IPC.

4. Feeling aggrieved against the charge framed by learned trial Court revisionist filed the present revision petition.

5. Court heard learned Senior Advocate appearing on behalf of revisionist and heard learned Advocate General appearing on behalf of non-revisionist and also perused the entire record carefully.

6. Following points arise for determination in present revision petition:-

1. Whether revision petition filed by the revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition?

2. Final Order.

Findings on Point No.1 with reasons.
7. Submission of learned Advocate appearing on behalf of revisionist that as per forensic science report original cheques bearing Nos. 396001, 396002, 396003 were not signed by revisionist and on this ground primafacie case against the revisionist is not made out under Section 420 IPC is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that at the time of framing charge meticulous consideration of evidence is not required. See AIR 1981 SC 1548 title Mohammad Akbar Dar and others vs. State of JK and others. See AIR 1977 SC 2433 title Yash Pal Mital vs. The State of Punjab. It is well settled law that opinion of expert under Section 45 of Indian Evidence Act 1872 is only advisory in nature. It is well settled law that facts of cheating as defined under Section 420 IPC can be proved by way of oral evidence also. It is well settled law that when there is conflict between the oral evidence and expert evidence then testimony of eye version given by eye witness get preference. See AIR 2012 SC 3046 title Dayal Singh and others vs. State of Uttaranchal. It is the case of prosecution that accused had given three cheques of ` 90 lacs each to the complainant through his employee namely Sunil Kumar @ Manu. Court has carefully perused the testimony of Sunil Kumar @ Manu recorded by investigating officer during investigation process. Sunil Kumar @ Manu has specifically stated in his statement recorded under Section 161 Cr.P.C. that he joined Tara Business Group Private Limited in the month of September 2001. Sunil Kumar @ Manu has stated in his statement recorded under Section 161 Cr.P.C. that accused Rajeshwar Sabarwal was the owner of Tara Business Group Private Limited Company. Sunil Kumar @ Manu has also stated in positive manner that his elder brother Naresh Kumar was also employed in the company. Sunil Kumar @ Manu has stated that accused was MD of company and he used to look after the security work. Sunil @ Manu has stated in his statement recorded under Section 161 Cr.P.C. that accused Rajeshwar Sabarwal was owner of two vehicles i.e. Swift and Etioes. Sunil Kumar has further stated that there were stickers of army upon both vehicles. Sunil Kumar @ Manu has stated that on 11.3.2012 accused had handed over to him one envelope and directed him to hand over the envelope to complainant Chuni Lal Chauhan at his hotel at Parwanoo. Sunil Kumar @ Manu has further stated in his statement recorded under Section 161 Cr.P.C. that on the same day he came to hotel of complainant Chuni Lal Chauhan at Parwanoo and handed over the envelope to complainant Chuni Lal Chauhan on behalf of accused. Sunil Kumar @ Manu has further stated in his statement recorded under Section 161 Cr.P.C. that complainant Chuni Lal Chauhan opened the envelope and in the envelope there were cash of ` 140000/- (Rupees one lac forty thousand only) and there were three cheques of ` 90 lacs each. Sunil Kumar @ Manu has further stated in his statement recorded under Section 161 Cr.P.C. that accused Rajeshwar Sabarwal was not retired as Colonel from army. Sunil Kumar @ Manu has further stated that accused informed the people that he was retired from army from the post of Colonel just to cheat the people. Sunil Kumar @ Manu has further stated that after registration of criminal case under Section 420 IPC accused removed the stickers of Colonel from vehicles and also sold both vehicles. Court is of the opinion that above stated statement of Sunil Kumar @ Manu eye witness is sufficient to frame charge against revisionist under Section 420 IPC. Court is of the opinion that for the purpose of framing charge Courts are legally competent to peruse police report and documents sent along with report under Section 173 of Code of Criminal Procedure 1973 as per Section 239 and Chapter XIX of Code of Criminal Procedure 1973. Punishment under Section 420 IPC is seven years and fine. Criminal offence under Section 420 IPC is warrant case.

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8. Submission of learned Advocate appearing on behalf of revisionist that complainant Chuni Lal Chauhan has already initiated criminal proceedings under Section 138 of Negotiable Instrument Act 1881 relating to some cheques and parallel criminal proceedings under Section 420 IPC cannot be initiated against the revisionist under Section 420 IPC as subject matter of complaint filed under Section 138 of Negotiable Instrument Act and subject matter of criminal case filed under Section 420 IPC are similar and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that if criminal offences are distinct then concept of double jeoparady would not apply relating to same fact. See AIR 1954 SC 375 title S.A. Venkataraman vs. Union of India (Constitutional Bench of five Judges). It is well settled law that concept of double jeoparady as mentioned under Article 20(2) of Constitution of India is based on the concept of “Nemo debet bis vaxari”. (Man must not be put twice in peril for the same offence). It was held in case reported in AIR 1954 SC 375 title S.A. Venkataraman vs. Union of India (Constitutional Bench of five Judges) that to attract concept of double jeoparady prosecution and punishment must co-exist. It was held in case reported in AIR 1961 SC 578 title The State of Bombay vs. S.L. Apte and another that if two offences are distinct then notwithstanding the fact that allegations of facts in two criminal complaints were substantially similar then concept of double jeoparady could not be invoked. It was held in case reported in (2012)7 SCC 621 title Sangeetaben Mahendrabhai Patel vs. State of Gujarat and another that ingredients of offence punishable under Section 138 of Negotiable Instrument Act are entirely different from offence punishable under Section 420 IPC. It was held that under Section 420 IPC there is no legal presumption of antecedent debt but under Section 138 of Negotiable Instrument Act there is presumption of antecedent debt. It was held that under Section 420 IPC mensrea is relevant. It was held in case reported in AIR 2015 SC 75 title State of NCT of Delhi vs. Sanjay that offence punishable under Section 138 of Negotiable Instrument Act and offence punishable under Section 420 IPC are distinct offences and it was further held that both proceedings under Section 138 of Negotiable Instrument Act and proceedings under Section 420 IPC would continue relating to similar facts in view of the fact that offence under Section 138 of Negotiable Instrument Act and offence under Section 420 IPC are distinct criminal offences.

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9. Submission of learned Advocate appearing on behalf of revisionist that learned trial Court has framed the charge against the revisionist under Section 420 IPC without any iota of evidence on record is rejected being devoid of any force for the reasons hereinafter mentioned. Offence under Section 420 IPC is a warrant case. As per Section 239 of Code of Criminal Procedure 1873 Chapter XIX Magistrate is under legal obligation to consider the police report and documents sent with police report under Section 173 of Cr.P.C. Court has perused the police report carefully and Court has also perused the documents annexed with police report carefully. Investigating Officer has sent the police report under Section 173 Cr.P.C. along with oral statements of thirty witnesses namely (1) Chuni Lal Chauhan, (2) Lekh Ram, (3) Rajesh Bhardwaj, (4) Anwaroo, (5) Rajan Gupta, (6) Jai Singh, (7) Rajesh Punia, (8) Mandeep Singh, (9) Nishant Chauhan, (10) Rakesh Kumar, (11) Ravi Kiran, (12) Rakesh Dutta, (13) Ajay Kumar, (14) Sunil Kumar @ Manu, (15) Naresh Kumar, (16) Sayad Ajmat Tula (17) Vijay Laxmi, (18) Manisha Sharma, (19) Bihari Lal Chauhan, (20) Kuldeep Singh, (21) Vijender Dutt Gautam, (22) Hem Raj, (23) Balwant Singh, (24) Amit Angreesh, (25) ASI Ved Parkash, (26) ASI Kundan Singh, (27) Shiv Kumar, (28) Nishchint Singh Negi, (29) Padam Chand Additional S.P. Solan, (30) Susheel Kumar Sharma. Court has also perused documents annexed with police report i.e. (1) Final report under Section 173 Cr.P.C. comprised of sixteen pages. (2) Original FIR. (3) Complaint under Section 156(3) Cr.P.C. (4) Bill of apples and mangoes. (5) Bills of Laxmi Fruit company. (7) Billty booked from Haryana Roadways Transport Chandigarh. (8) Billty booked from Sher-e-Punjab Roadways Transport Chandigarh. (9) Billty booked from Sher-e-Punjab Roadways Transport Chandigarh. (10) Recovery memo of invitation card, five photographs and one momento. (11) Recovery memo of gate pass and arrival and dispatch ledger register HPMC Parwanoo from 2010 to March 2011 along with letter No. 2399-3 dated 30.11.2013. (12) Recovery memo of letter issued by accused Rajeshwar Sabarwal to Manager PNB Branch Kasumpti. (13) Original cheque dated 24.3.2014. (14) Bank account of accused Rajeshwar Sabarwal. After perusal of police report filed under Section 173 Cr.P.C. carefully and after perusal of documents annexed with police report carefully Court is of the opinon that there are grounds for presuming that accused has committed an offence punishable under Section 420 IPC because there are grounds that accused cheated the complainant by way of pretending that accused was retired as Colonel from army and thereafter accused obtained supply of 276853 boxes of apples and mangoes in consideration of `467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). It is prima face proved on record that accused did not return `212916497/- (Rupees twenty one crore twenty nine lacs sixteen thousand four hundred and nety seven only) value of supply of apples and mangoes. It is prima facie proved on record that accused Rajeshwar Sabarwal was not Colonel in army at any point of time. It is prima facie proved on record that accused cheated the complainant and dishonestly induced the complainant to deliver 276853 boxes of apples and mangoes in consideration amount of `467315977/- (Rupees Forty six crore seventy three lacs fifteen thousand nine hundred and seventy seven only). Prima face dishonest intention on part of accused is proved from the very beginning in present case to cheat and dishonestly induce delivery of movable property.

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10. Submission of learned Advocate appearing on behalf of revisionist that connection of revisionist is not proved in criminal offence under Section 420 IPC in view of handwriting expert report placed on record and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. After perusal of investigation report under Section 173 Cr.P.C. and after perusal of entire documents placed with police report it is held that prima facie connection of accused is proved relating to offence under Section 420 IPC as per statement of Sunil Kumar @ Manu.

11. Submission of learned Advocate appearing on behalf of revisionist that learned trial Court has exercised jurisdiction with material irregularity and illegality is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that after perusal of investigation report filed under Section 173 Cr.P.C. and after perusal of evidence annexed with report it is held that order of learned trial Court is not illegal and it is held that learned trial Court has not committed any material illegality.

12. Submission of learned Advocate appearing on behalf of revisionist that revisionist has also filed complaint under Section 156(3) of Cr.P.C. for misplacing the cheques of petitioner and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that complicated disputed facts are involved in present case and Court is of the opinion that complicated disputed facts inter se the parties cannot be decided at this stage. It is held that complicated disputed facts inter se the parties shall be decided by learned trial Court after giving due opportunities to both the parties to prove their case in Court of law by way of adducing oral and documentary evidence. It is held that it is not expedient in the ends of justice to give any finding relating to complicated disputed facts inter se the parties at this stage of case without giving opportunity to parties to prove asserted disputed facts.

13. Submission of learned Advocate appearing on behalf of revisionist that in view of ruling given by Hon’ble Apex Court AIR 2000 SC 754 title G.Sagar Suri and another vs. State of U.P. and others and in view of rulings reported in 2000 Cri.L.J. 174 title Sunil Kumar vs. M/s Escorts Yamaha Motors Ltd and others, 2005 Cri.L.J.2896 title S.Jayaswami and another vs. State of Orissa and another, (2007)7 SCC 373 title Vir Prakash Sharma vs. Anil Kumar Agarwal and another, (2009)3 SCC 78 title V.Y.Jose and another vs. State of Gujarat and another present revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the above said rulings. All these rulings were given by Division Bench. It is well settled law that when there is conflict between ruling given by Division Bench and Larger Bench then ruling given by Larger Bench always prevails. In view of the ruling given by Constitutional Bench comprised of five Judges i.e. AIR 1954 SC 375 title S.A. Venkataraman vs. Union of India it is held that criminal offence under Section 420 IPC and criminal offence under Section 138 of Negotiable Instrument Act are distinct criminal offences. It is held that as offence under Section 138 of Negotiable Instrument Act and offence under Section 420 IPC are distinct criminal offences then benefit of double jeoparady cannot be granted to revisionist notwithstanding the fact that allegations of both criminal complaints are substantially similar. It is held that ingredients of offence under Section 420 IPC and 138 of Negotiable Instrument Act are not similar. In view of above stated facts point No.1 is answered in negative.Point No. 2 (Final Order)

14. In view of findings on point No. 1 revision petition filed by revisionist is dismissed. Order of learned trial Court is affirmed. Observations made in this order will not effect the merits of case in any manner. File of learned trial Court be sent back forthwith along with certified copy of this order. Parties are directed to appear before learned trial Court on – 27.4.2016. Criminal revision petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.

April 13,2016 (P.S. Rana)

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