Limitation. Period of 1 month for filing complaint will be reckoned from the day immediately following the day on which 15 days of receipt of notice expires. 1999 Crl.L.J. 1822 SC.
Discharge not maintainable. There is no provision for the summons cases to file an application for discharge under Sec. 245 Cr.P.C. that too after the witness have examined. 1999 Crl.L.J. 2236 Mad. (B).
IP not covered. Protection available under IP act does not cover proceedings under Sec. 138 NI Act. 1999 Crl.L.J. 2236 Mad. (A).
Recovery. Proper course should be filing a civil suit before civil court to recover money. 1999 Crl.L.J. 2136 Raj.
Abuse of process. Suppressing facts of pending revision, filing quash petition U/S 482 – Abuse of process of law. 1999 Crl.L.J. 2010 Mad.
Contempt. Filing petition to stall/stay judicial proceedings by suppressing material facts amounts to contempt of court. 1999 Crl.L.J. 2010 Mad.
Sec, 245 Cr, P, C. Section 245 Cr.P.C. is applicable to only warrant cases not for summons cases. 1999 Crl.L.J. 2010 Mad.
Notice – without time. Without mentioning any time in the notice if the complainant approaches the court after 15 days, the complaint is maintainable. 1999 Crl.L.J. 2010 Mad.
Notice in writing/fax. Notice through registered post as well as fax. Fax reached the same day – cause of action starts running – complaint filed after 15 days of receipt of registered post – not maintainable – should have filed within 30 days of receipt of fax notice. 1999 (2) CTC 354 SC.
Payment stopped/Account closed. Dishonouring cheque on ground that account was closed is consequence of act of drawer bringing his account to ‘Nil amount’ – such dishonour of cheque would attract Sec. 138 – Sec. 138 would become dead letter if instruction issued to bank to stop payment immediately after issuing cheque against debt or liability. 1999 (2) CTC 347 SC.
Documents of theft not necessary for 138. Documents relating to theft of cheque are held to be not relevant in criminal proceedings relating to dishonour of cheque. 1999 (2) CTC 298.
Complaint against insolvents – maintainable. Criminal prosecution against insolvents are maintainable, 1999 (1) CTC 687.
Accused – Power of Attorney not maintainable. Accused cannot appear through his power of attorney holder – Sec. 205 dispenses with personal attendance of accused – permitted through appear through counsel. 1999 (1) CTC 720.
Sec. 245 Cr.P.C. not maintainable after trial begins. After commencement of trial no discharge petition is entertain able. 1999 (1) CTC 527.
Sec. 256 Cr.P.C. Dismissal not warranted. Non appearance of complainant – acquittal hurriedly – no reasons stated in the order – disposal oriental orders condemned – orders set aside. 1999 (1) CTC 371.
Cheque as security – invalid. Cheque issued as security for advance amount – No liability subsisting on date of execution of cheque – prosecution U/S 138 will not maintainable. 1999 (1) CTC 6.
Unregistered firm. Complainant cannot be compelled to implead an accused that is unregistered firm. 1998 (2) CTC 282.
Cause of action arises only once. Once notice issued and accused failed to pay the amount within 15 days, the cause of action arose, and complaint has to be filed. No notice 2nd time can be issued. Any number of times cheque can be presented for collection, but notice only once can be issued. 1998 (2) CTC 462.
Partners not liable. Partners who are not responsible for day today affairs of firm need not be arrayed as accused. Since they are only sleeping partners, they are not liable to be tried. 1998 (2) CTC 548.
Demand of more amount than cheque. Statutory notice demanded more amounts then cheque is valid. 1998 (2) CTC 548.
Amendment. Description of accused mentioned wronging complainant is allowed to amend the same. 1998 (2) CTC 372.
Return memo – Limitation. Return memo dated 26-12-1992 is received by holder in due course after ten days. Notice dated 11-01-1993 is valid. 1998 (2) CTC 282.
Public holiday. Cheque dated 22-04-1996 – Cheque presented on 22-10-1996, since 21-10-1996 is public holiday – cheque is valid. 1998 (2) CTC `165.
Stop payment – not a ground. Stop payment – no ground to hold that payees are not guilty. 1998 (2) CTC 165.
Legal heir – valid. Death of complainant will not terminate proceedings U/S 138 NI Act. Complainant’s presence not necessary – legal heirs can be impleaded. 1998 (2) CTC 647.
Time in notice – not necessary. Mentioning of any period in notice within which payment of cheque is to be made – not necessary. 1998 Crl.L.J. 2309 Raj.
Authorization to company – not necessary. Complaint filed by company – objection that no authorization given by company to director – plead rejected – The person who is in charge and responsible for conduct of the business of the company can file. 1998 I LW 354.
One month – Definition. Definition ‘one month’ in Sec.3 (35) of General clauses act to be followed and hence it cannot be restricted to period of 30 days – ‘one month’ – in Sec.142 refer to calendar month (Jan,29,30,31 X Feb.28/29). 1998 I LW (Crl) 264.
Allegations on partners must. To bring persons within the purview of Sec. 138 NI Act there must be an allegation prima facie disclosing of commencement of offence of directors or partners. 1998 I LW 24.
Holidays acceptable – Company not necessary M.D. enough - Plea that presentation of cheque about 6 months 2 days after its issue and complaint not sustainable – rejected. Intervening of period of public holidays on the day of expiry of cheque to be excluded Under section 25 – company functions through human agency. Hence, M.D., in individual capacity cannot escape from his liability – complaint maintainable. 1998 II LW (Crl) 6111.
Re-agreement – compensation – There was an agreement between parties hence section not attracted – plea rejected – time imposed and compensation to complainant granted. 1998 II LW (Crl) 621.
Good used/plea goods not good – stop payment – Acquittal of accused that communication to stop payment – acquittal set aside. – Having consumed almost entire materials, the stop payment instruction to bank, can under no stretch of imagination protect the respondent from liability U/S 138. 1998 II LW (Crl) 637.
Security – plea that cheques were issued only as security and unless the sale transaction of the property is completed the petitioner is not liable to make any payment – rejected. 1998 II LW (Crl) 640.
Section 245 Cr.P.C., not maintainable Under Section 138 N.I. case (finding) 1998 II LW (Crl) 640.
Deemed Notice – deemed notice can be constructed as receipt contemplated under Section 138. 1998 Crl.L.J. 3903. (Mad).
Abatement – Proceedings does not abate on death of payee – power agent is legal. 1998 Crl.L.J. 3870 (Mad).
Stop payment – Presumption under Section 139 in favour complainant – notice to stop payment would not preclude action U/S 138 by draw. 1998 Crl.L.J. (SC) 1397.
Silent partner – Complaint against person who is not responsible for conduct of business company – not maintainable. 1998 Crl.L.J.(Raj) 3525 D.
Jurisdiction – Acquittal on the basis of jurisdiction alone not proper. Complaint should be returned for presentation before proper court. 1998 Crl.L.J. (Ker). 2755 B.
Alternation – Incerstion of date can be presumed as inserted with implied consent of drawer – presumption not rebuttal – cheque not void. 1998 Crl.L.J. (Ker) 3228.
Section 20 – Suit on promissory note – signature admitted – pronote can be wholly or partly blank – dismissal not proper. 1998 Mad 23.
Limitation – Section 13 NIA – Notice served on 1 September – complaint filed on 16 September – complaint not prematured. 1998 Crl.L.J.559(A) Guj.
Endorsement - Endorsement not liable. 1991 MWN II 237.
Civil suit cannot be stayed pending criminal prosecution – criminal cases can be stayed by civil court only rarely when compelling circumstances exist. 1996 II CTC 21. (SC).
Incorporation of recitals about chit transactions in promissory note is mandatory requirements – If any time fixed for payment than payment could be demanded only after that period. 1997 I CTC 284.
Section397-Revision-Neither second revision U/S 397 nor quashing petition can be maintained by unsuccessful person in revision before Sessions court. 1997 II CTC 567.
6 cheques – single complaint – valid. Dishonour of six cheques – single complaint –
maintainable. 1997 II CTC 567.
Power agent substituted maintainable – Company can be represented by person authorized afresh – Power agent can be substituted. 1997 II CTC 675.
Imprisonment alone to be suspended by High court but not both imprisonments and fine. 1998 L.W. (Crl) 239.
Holder in due course – Execution proved – legal presumption would arise that consideration was passed on at time of execution – claim that assignee was not holder in due course – No evidence – claim rejected. 1997 AIR Mad 1 (S.118 NT Act)
Notice unclaimed - has to be proved by complainant at the time of trial. 1993 I MWN 336 = 1998 SC 630.
Notice to firm enough – Complaint against the firm – Notice need not be sent each partner – to firm itself sufficient. 1998 Crl.L.J. 43 (B) AP.
Mere advance information not to present cheque without making arrangements for funds not valid. The notice must contain legal tenable reasons. Otherwise Section 138 NI Act will attract. 1998 Crl.L.J.10 (B) Guj.
Complaint against company – Allegation against directors not necessary. 1998 Crl.L.J. 10(C) Guj.
Charge against accused directors of company necessary in a complaint against company. 1998 I LW (Crl) 24.
Accused not entitled for documents but for copy of complaint alone 1998 I LW (Crl) 1. Karpagavinayam J.
Section 420 IPC can be clubbed. Section 420 Indian Penal Code can be clubbed with complaints filed Under Section 138 of NI Act. 1993 Crl.L.J. 2196.
Account closed – All cheque leaves should be returned otherwise closed Account is deemed to be alive. Clearly attracts Section 138 NI Act. 1996 Crl.L.J. 1816.
Presumption is that the cheque is issued to discharge debt – Accused has to prove contra. 1996 Crl.L.J. 681.
Date of issue immaterial. 1992 Crl.L.J. (P&H) 1044.
Enquiry Under Section 202 Cr.P.C. necessary. 1997 I LW (Crl) 411.
Manager of firm can file the complaint. 1997 I LW (Crl) 297 = 1992 3 Crimes 1094.
Jurisdiction to two courts – presented to one court in time is valid. 1997 MLJ (Crl) 288.
Legal notice given from branch office is also a place where cause of action arose. 1997 I LW (Crl) 205.
Power of attorney, payee or holder in due course can file the complaint. 1997 II LW (Crl) 637.
Enquiry is necessary before issuing process – detailed order should be made with reasoning. 1997 MLJ (Crl) 270.
Cheque returned – notice issued – case not filed within time – again same procedure is valid – continuing offence. 1997 MLJ (Crl) 525 (Kar) HC. Reversed 1998 CTC II SC 462.
Compounding cannot be done in 138 cases. 1996 Crl.L.J. 135 (Ker).
Money lender covered U/S 138 NI Act. 1996 I Crl.L.J. (AP) 636 (A).
Mens rea not necessary. 1996 I Crl.L.J. (AP) 636 (B).
Power agent can file a complaint. 1995 I Crl.L.J. 1102.
Company need not be added as party to the proceedings . 1995 I Crl.L.J. 1102 (followed AIR 1984 SC 1824 – Criminal case)
Averments against company not necessary. 1995 II Crl.L.J. 2306. Over ruled 98 LW (Crl) 24.
Accused can ask for discharge in Section 138 cases (finding Para 4). 1996 II LW (Crl) 690.
Consideration can be past, present or future promise to deliver goods in future is liable. 1996 Crl.L.J. (Guj) 3099 B (Para 10).
Signatures differ in acknowledgement card from cheque – plea rejected. 1996 Crl.L.J. (Guj) 3099 (B).
Entire body need not be written by drawer. 1996 Crl.L.J. (Guj) 3099 (C).
Proceedings against or for proprietor concern cannot be initiated. 1996 Crl.L.J. (Guj) 3099 (A).
Complaint can be filed at either place of issuance or dishonour. 1996 Crl.L.J. (Ker)
Burden of proof is on accused. 1996 Crl.L.J. (Mad) 3387. (A) (C).
Averments regarding jurisdiction not must. 1996 Crl.L.J. (Kar) 2264. (C).
Without signature of Advocate – notice is valid. 1996 Crl.L.J. (Kar) 2264 (A).
Notice to reasonably correct address is sufficient. 1996 Crl.L.J. (Ker) 1013.
Service of notice – deemed notice is sufficient. 1995 II MLJ 35 (SN).
Dismissed complaint cannot be taken back if reasons for absence not explained. 1996 I LW (Crl) 221.
Complainant absent hence dismissed. Can be taken back if the reasons explained (Against if reasons not stated). 1994 II L.W. (Crl) 761.
Burden of proof on the part of the accused. 1996 Crl.L.J. (Mad) 3387.
Burden of proof on the part of the accused. 1996 I LW (Crl) 320.
If notice given as not to present the cheque for collection before it’s presentation – Section 138 will not be attracted. 1996 I LW (Crl) 325. (SC). REVERSED 1998 SCC III 249 A.
Account closed can be taken for file. 1995 Crl.L.J. (Mad) 1882 (B).
Cause of action arose any number of times on the same cheque. 1995 Crl.L.J. (Kar) 1384.
Notice return as “Not found” – Notice not served hence demand not made, acquitted. 1995 2 LW (Crl). Arumugam J.
Discharge of accused – entitled for discharge on merits in 138 case – remanded. 1995 I LW (Crl) 277. Rangasamy J.
Limitation for representation – If the return is by time limit it deemed to be with in the custody of court. 1995 I LW (Crl) 300.
Plea of failure to mention date of dishonour in statutory notice is rejected. 1995 I LW (Crl) 264. Janarthanam J.
Without impleading company as accused – not maintainable. Section 319 Cr.P.C., for Impleading any other person as co accused will not have effect of curing the infirmity.. 1995 I LW (Crl) 132. Rangasamy J.
Cheque is not negotiable after being dishonoured, it cannot be endorsed again. 1989 I LW 401.
Refer to drawer – Insufficiency of funds, exceeded the arrangement – questions involved determination on evidence without having come on record it will not be appropriate for the petitions to invoke the inherent powers of quash. 92 MWN II 184.
Account closed can also be taken for file. 1994 LW (Crl) 663.
Account closed will not attract Sec. 138 of NI Act. 1991 LW (Crl) 576.Contra
Account closed etc., has to be proved at the time of trial cannot quash at this stage – AP High court. 1993 MWN (1) 251.
Power of attorney can file complaint U/s 138 NI Act. 1994 TNLJ 42.
Signature difference – Merely because of some part was written by somebody other than the signatory, the cheque could not be said invalid. AIR 1993 Kar 334.
Refer to drawer. Amounts to insufficient funds – Limitation falls on holiday – it can be filed next working day. 1994 LW (Crl) (1) 51.
There is nothing in the 138 that the payee alone can take action. Holder in due course also can take action. 1994 TNLK 30.
Any one or more or all partners with firm may be prosecuted . 1994 I LW (Crl) 262. Page 263 (6th Para end).
Absence of any averment about the power of attorney, he cannot file the complaints. 1994 I LW (Crl) 337.
Company should also be added as party. 1988 SC 1123.
Firm should be arrayed as part otherwise the Section 141 is not complied with. 1994 I LW (Crl) 135.
Post Anti date cheques are valid – Post dated cheques deemed to be drawn on the date it bears. 1994 TNLJ SC 8 = 11994 TNLJ SC 30.
Praying for issue of summons under 420 IPC in the course of 138 trial – rejected. 1994 LW (Crl) 55.
Dismissed for default – On the ground of absence of complainant, again cheque presented – again same procedures – complaint can be taken for fresh cause of action. 1994 LW (Crl) 53.
Power of attorney agent is virtually the payee himself or holder in due course. 1994 LW (Crl) 34.
Cheque can be presented any number of times within its validity – There is no infirmity in it. 1993 LW (Crl) 627.
“For the discharge in whole or in part of any debt” – Absence of such averment the complaint is ought to be quashed. 1993 LW (Crl) 600.
Acquittal Under Section 256 of Cr.P.C., - Valid, if no reason is assigned for the absence of the complainant – revision dismissed. 1992 (2) MWN .
Stop payment will not affect the case before it is proved that sufficient funds are in account. 1992 (2) MWN.
There is no bar for presentation of the cheque at a later point of time also and if it is was dishonoured certainly the offence is made out. 1992 MLJ (Crl) 618.
Sole proprietary concern – impleading of the company is not necessary – plea that failure to implead the company as accused will vitiate the prosecution, rejected. 1993 LW (Crl) 273.
Cheque presented to bank for collection on various dates and returned as “insufficient funds” – plea that 142 contemplates only a single cause of action – rejected. 1993 LW (Crl) 270.
Expiry of 45 days time – Bar of limitation where the complaint is filed after expiry of 45 days from the date of return of the notice. 1993 LW (Crl) 105.
Refer to drawer – This and other contentions involved on evidence to be adduced and the matter cannot be decided on a petition to quash the proceedings. 1992 LW (Crl) 536.
Payment stopped – Duty of the complainant to include necessary averments as would disclose an offence on a reading of the complaint – failure to make the same – proceedings liable to be quashed. 1992 LW (Crl) 367.
Payment stopped – Allegations that the accused did not have sufficient funds will bring the complaint under Section 138. The allegations have to be proved only at the time of trial and proceedings cannot be quashed at this stage. 1992 LW (Crl) 307.
Evasive of notice – The deliberate evasion of receipt of registered notice would be a constructive service. 1991 LW (Crl) 576.
Proceedings in 1st occasion of dishonour, if not taken it is not a bar of limitation of the same subsequently. 1991 LW (Crl) 481.
Notice in writing is need not necessarily be only by a registered post and it can be as well as by telegram or by a letter. 1991 LW (Crl) 468.
Proprietor concern – Proprietor himself is enough for prosecution – His concern need not be added as party. 1991 LW (Crl) 347.
Company should be added – Unless the company is made an accused the M.D. and others cannot be made as accused. 1991 LW (Crl) 513.
Suit based on a promissory note instituted by a nationalized bank claming interest at the rates higher than the rate mentioned in promissory note – Interest of higher rate. Held can be allowed, only when it is agreed to by the debtor – Directives of Reserve bank to the nationalized bank not relevant. 1990 I LW. 1. Syndicate Bank, Pollachi Vs. Muthaiyan and another.
Imperfect notice – cheque amount not mentioned in notice - Notice was for loan amount – Not for cheque amount – Loan amount and cheque amount is different – demand for amount covered by bounced cheque is absent in notice - demanding other than cheque amount will not make the notice invalid – but demand for cheque amount should be made clearly. 2003 (4) CTC 252 (SC)..
Claming more than cheque amount in notice – not invalid – Claiming Rs.300/- i.e., cost of notice other than cheque amount will not be ground for quashing the complaint. 2003 (4) CTC 76.
Discharge maintainable in 138 cases – It is true that discharge does not arise in a summons case. But even if the petitioner prays for discharge in such cases we cannot give a restrictive meaning to the word discharge, instead we can interpret if as dropping the proceedings against them. (As charges could not be framed in summons cases, the question discharge does not arise). 2003 Crl.L.J. 4373.
Cheque limitation – Calendar month definition – date of cheque cannot be excluded. 98
Initial defects in complaint cannot be amended. 2000 (1) Crimes 113 = 83 SC 67.
Accused managing director did not let in evidence – rebuttal let in evidence – not rebutted. 2003 (4) CTC 628.
Stop payment – Mere stop payment will not absolve the offence. 2003 (4) CTC 628.
Relationship – Relationship between parties in irrelevant. 2003 (4) CTC 628. (Contra to) Notice to not to present cheque for collection – Section 138 will not attract. (1992 (2) SCC 739 (Para 22) – Negatived.
Period of offence – The transaction took place in 1993 – Section 138 as stood at that time would be applicable to present case. 2003 (4) CTC 628.
Sentence – Sentence – double cheque amount to be payable within one month in default 6 months simple imprisonment. 2003 (4) CTC 628.
Absconder -Proclaimed offender - Accused failed to appear before court – Wife and children refused to give his whereabouts. – In such circumstances accused has to be treated as absconder – accused left country – even then he is absconder. 2003 (2) CTC 17.
Present again – stop payment – attracts 138 – provisions where incorporated with the object of inculcating faith inefficacy of banking operations – 2003 (1) CTC 752 SC.
Inferior goods – invalid plea – accused should let cogent evidence – accused would have intimated complainant about rejection of goods by end user and would have asked to take goods back – accused should true that stop payment notice given for other valid causes. 2003 (1) CTC 282.
Partner – definition – person in charge – person in charge must mean that the person should be in over all control of the day today business of the firm – he should be a party to the policy being followed by the company and yet not in charge of the business of the firm – offence must be proved was committed with the knowledge and connivance of the accused. 2003 (1) CTC 127 SC.
Promissory – promissory must be in writing and there should be unconditional undertaking to pay. 2003 (1) 36.
Section 204 Cr.P.C. not maintainable after examination of witness begins. Sections 245 applicable only for warrant cases not for Sec.138 NIA. 2002 (4) CTC 335.
Notice - returned unclaimed - again send to another address after 15 days – valid – complainant sent notice on 29-05-1999 – returned on 09-06-1999 as unclaimed - complainant on coming to know that accused was available else where sent copy of same notice on 24-06-1999 – period of limitations start after 15 days from second. 2002 (4) CTC 335.
Holder in due course – cheques endorsed after dishonour – valid – (against 2002 (3) CTC 424) 2002 (4) CTC 323.
Quash not liable – After examination of PW1 –person accused of offence under Section 138 NIA filed petition to quash proceedings after examination of PW! On 2 different dates – not sustainable. 2002 (4) CTC 323.
Complaint by manager of firm – valid – manager can represent firm – valid complaint. 1997 (2) CTC 478.
Vice-president – no role in business – not liable – petitioner who is vice-president of company but has no role in conducting business need not be arrayed as accused. 1997 (2) CTC 524.
Authorization afresh valid – authorization -need for substitution to represent company – filing of complaint - authorised resigning from company – company can be represented by person authorized afresh. 1997 (2) CTC 675.
Pronote – chit transaction-mentioning mentioning mandatory – incorporation of recitals about chit transaction in promissory note is mandatory requirement. 1997 (1) CTC 284.
Partner or not is matter for trial cannot be discharged. 1997 (2) CTC 293.
Complaint without sign of complaint – presented after limitation – complaint invalid – quashed. 1997 Crl.L.J.2432.
Complaint made in the name of complainant but signed by power agent – complaint invalid. 2002 Crl.L.J.2621 AP.
No averments against directors – summons quashed. 2002 Crl.L.J.3053.HP.
Accused successfully rebutting presumptions at initial stage – proceedings can be quashed at thresh hold. 2002 Crl.L.J.3469 Guj.
Petitioner failed to produce any document to so that she is not direction of company – cannot quash. 2002 Crl.L.J. 3320 AP.
All the directors need not be arrayed as accused – unless specific allegation against them. 2002 Crl.L.J. 3291 Ker.
Signature differs – accused admitted – accused admitted his liability Under Section313 statement – no reply to notice also - but the signature available in cheque not that of accused – no proof of issuance of cheque – accused cannot be convicted. 2002 Crl.L.J. 3255 Ker.
Notice issued after 15 days of return is illegal – delay cannot be condoned by Sec, 473 Cr.P.C or Sec. 5 of Limitation Act. 2002 Crl.L.J. 3219. Del.
Cheque issued in favour of A1 to A3 by A4 and A5 – A1 to A3 discounted the cheques with complaint bank – no legally enforceable debt between complaint and accused – complaint under Section 138 NIA not valid. 2002 Crl.L.J.31993 AP.
Notice- letter written by complainant can be construed as notice under Section 138 NIA.-Complaint can be filed on 16th day –2002 Crl.L.J. 3001. Bom.
All the directors need not be added as party. 2002 Crl.L.J. 2760 Del.
Absence of mens rea should be proved by accused. 2002 Crl.L.J.2731 B.
Notice need not be sent through registered post – notice/letter sent under certificate of posting – presumed to have received by accused. 2002 Crl.L.J.2731 A. AP.
Prima facie evidence – cannot be quashed – clear averments in complaint – prima facie evidence that accused was Chairman at the time of issuance of cheque – matter for trail – cannot be quashed. 2002 Crl.L.J. 2462 Mad.
Cheque not in individual account – 138 will not lie – petitioner as owner of company borrowed loan for company – liable to repay - cheque not in case individual account – he is neither director nor looking after dismiss – Sec. 138 will not attract – seeks civil remedy. 2002 Crl.L.J. 236 AP.
Notice through telegram – no confirmation letter sent – telegram cannot be a statutory notice. 2002 Crl.L.J. 185 Mad.
MOU subsequent to issuance of cheques will not superseded cheques issued earlier. 2002 Crl.L.J.172 B.
Allegation in complaint that M.D. and director issued cheques to cheat complaint knowing fully well that they do not have sufficient funds -–complaint cannot be quashed. 2002 Crl.L.J. 172 A. AP.
Complaint by manager – valid – managing director empowered to file complaint himself – authorizing manager to file complaint – valid. 2002 Crl.L.J. 3502 Ker.
Complaint by manager – valid – complaint filed by manager of company – matter for trial – not liable to be quashed. 2002 Crl.L.J. 171 AP.
Income Tax verification – Rs.20, 000/- or more should be paid by account cheque – borrower alone is liable- thus the borrower as a class is found to be indulging in such practices – it is the borrower who was found to be evading payment of tax. Compared to the class containing of lenders, the class of borrowers can be said to be in a position evade tax by adopting by devices. 2002 SC 2188.
Sentence with fine or compensation alone valid – not all – when sentence imposed on accused consists of imprisonment and fine – accused cannot be directed to pay compensation when sentence included fine as form part. 2002 (3) CTC 703 SC.
Guarantor liable – expressions ‘any cheque’ “other liability” occurring in Section 138 indicate legislative intend that cheque issued by guarantor in discharge of debt owed by principle debtor – guarantor cannot escape criminal liability. 2002 (3) CTC 572 SC.
Remission not applicable to NIA – with regard to offences committed under central enactment (NI Act), central Government is appropriate government to grant remission – remission granted under state government order would not apply to offence under Section 138 NIA. 2002 (3) CTC 616.
Burden of proof on defendant – if admits signature – Under Section 20 the holder in due course is entitled to fill up the blank pronote – no plea no evidence can be let in – defendant admitted his signature hence burden of proof on him. 2002 (3) CTC 598.
Dishonour cheque cannot be endorsed - cheque losses its negotiability after it is dishonoured on being presented for payment - cheque in favour of R – R endorsed in favour of P – P presented for collection – returned – P returned cheque to R – R filed complaint – complaint not maintainable. (Against 2002 (4) CTC 323). 2002 (3) CTC 474.
Absence of necessary averments in complaint – directors discharged – mere allegation that directors are responsible for failure to make payment of cheque amount is not sufficient for proving offence Under Section141 (2) – not enough. 2002 (3) CTC 342.
Complaint under Section 420, 406, 468 by complainant that the cheques in blank issued to accused are - Criminal breach of trust, etc., - FIR quashed. 1999 (8) SCC 468.
No averment – directors not liable – quashed. 2002 Crl.L.J. 478 Ker.
Joint complaint in valid – joint complaint by 2 or more persons in respect of different cause of action and different offence – not maintainable – under Section 200 of Cr.P.C. 2002 Crl.L.J. 481. Ker.
Allegation – enough role of partner not necessary - making specific allegation in complaint about active participation of day today affairs – sufficient – not necessary to allege about duties discharged by accused. 2002 Crl.L.J. 642.
List of witness – not file – non-compliance of mandatory provision of Section 204 (2) – order issuing summons – set aside – directed to file list of witness. 2002 Crl.L.J. 1926 Kar.
Notice returned – left not known – deemed service - contra should be proved at trial. 2002 Crl.L.J.1926 Kar.
Post dated cheque – drawn on date it bears – post dated cheque shall be deemed to have drawn on date it bears as per Supreme Court decision in 93 Crl.L.R. (SC) 739 - 2002
Crl.L.J. (NOC) 156 Raj.
Additional evidence under Section 391 Cr.P.C. valid – if not full up lacuna – accused plead cheque was issued in respect of time bared debt – complainant filed petition under Section 391 Cr.P.C., for permission to adduce additional evidence to show that earlier cheques had been issued by accused within 3 years within limitation – the said cheques where in existence at the time of cross examination by accused before trial court – no filling up of lacuna – petition valid. 2002 (3) CTC 161.
Amendment of pleadings - Order 6, rule 17 - central rule is that a party is not to be allowed to set up a new case or a new cause of action particularly when suit on new cause of action is barred – negligence of party or lawyer or mistake in setting out the case can be corrected – remission allowed on costs of Rs.5, 000/- each two bar association and advocate association to procure law books to their library. 2002 (3) LW 123.
Stop payment – attracts 138. 2002 (3) CTC 96.
Notice returned as intimation served – deemed service accused has to prove non-service if any. 2002 (3) CTC 96.
Different ink – not valid plea – using of different ink need not necessarily mean that document is altered. 2002 (2) CTC 203.
Sleeping partner – not liable – non-mentioning of Section 245 not fatal. 2002 Crl.L.J. 1994 .P&H.
Notice returned as not claimed – deemed service – compensation to state – not proper – no procedure in code for it. 2002 Crl.L.J. 1712 Ker.
Proprietor concern not legal entity – proprietor concern is not legal entity or judicial person - case against – not maintainable – but against proprietor maintainable. 2002 Crl.L.J. 1689 Mad.
Blank pronote filed by holder – valid – inchoate instruments – Section 20 enables holder of instrument to fill up the blanks and negotiable instruments which are duly signed by drawer and deliver to holder – promissory note which did not contain writing of drawer but executed by drawee held to be valid. 2002 (2) CTC 140.
Presumption under Section 139 and 118 – rebuttal by proof and not by explanation – once facts necessary for raising presumption is established – court has no option but to raise such presumption in favour complainant which is of course rebuttal buy accused – rebuttal should be by proof and not by explanation. 2002 (1) CTC 530.
Name mis spelled in cheque – not invalid – name of payee and complainant differently spelled – return not on that ground – valid. 2002 (1) CTC 530.
Summoning of records in appeal – invalid – at the appeal stage it is unnecessary to summon for records. 2002 (1) CTC 530.
Additional evidence in appeal – valid – appellate court can permit adducing of additional evidence if necessary – reasons to be recorded. 2002 (1) CTC 530.
Power agent – valid – complaint filed by power agent – complainant examined himself as witness valid. 2002 (1) CTC 530.
Compensation - Twice cheque amount - Section 29 Cr.P.C., bar will not applicable to High Court – sentence enhanced by directing accused to pay twice cheque amount as compensation and cheque amount directed to be paid to the complainant. 2002 (1) CTC 530.
Alteration of date - valid – cheques of year 1995 – dishonour – later by agreement drawer corrected the year as 1996 and made necessary endorsement – valid under Section 138 – even if the payee of the cheque altered the cheque validating or re-validating the same with the consent of the drawer valid. 2001 (4) CTC 570 SC.
Borrowal 4 years back – cheque now – valid. Plea of drawer that cheque was issued in respect of time barred debt incurred 4 years prior to issuance of cheque – hence no liability – plea rejected – balance sheet of payee so the balance year after year gives fresh period of limitation. 2002 (1) CTC 484 SC.
Section 138 not made out then Section 420 IPC can be drawn – quashing of complaint under Section 138 and 141 of NI Act – complaint dismissed by magistrate – High Court directs to take cognizance under Section 120-B and 420 IPC – valid. 2001 SC 3512.
Deliberate suppression of account books – the defendant discharged burden under Section 118. 1991 MLJ 183.
Sentence in default of compensation – valid – Supreme Court observed that Section 431 Cr.P.C., only prescribed that any money (other than fine) payable by virtue of an order made under the court shall be recoverable as if it were fine – proviso to Section 431 states that if sentence directs that if that such offender shall be imprisoned in default of payment of fine and etc., Hence order directing imprisonment in default of fine is valid. 2002 (1) CTC 315 SC.
Quantum of sentence – if amounts had been so paid there would have been justification for plead by sentence – sentence awarded should be such nature to give proper effect to object of legislation – no drawer of cheques can be allowed to take dishonour of cheques light heartedly. (Reversed the Madras High Court Judgement 2001 (2) CTC 595). 2002 (1) CTC 315 SC.
High Court should follow Supreme Court Judgment – also all courts in India – it is not only matter of discipline but also mandate of constitution as under Section 141 that law declare by SC shall be binding on all courts within the territory of India. 2002 (1) CTC 315 SC.
Director retired – not liable – form No, 32 also file with registrar of companies on 04-10-1999 – who ceased to be director on 04-10-1999 shall be deemed to be resigned from date of resignation i.e., before the commencement of transaction – complaint quashed against the said director. 2002 (1) CTC 227 = 2001 (2) CTC 78.
Stop payment without valid reasons attracts Section 138. 2001 (4) CTC 749 SC.
It is settled law that threshed hold High court is not justified in embarking upon enquiry as to reliability genuineness or otherwise of allegations made in complaint. 2001 (4) CTC 749 SC.
Complaint by Regional manager – Substitution subsequently - valid - No magistrate can insist that person whose statement was taken on oath at first instance alone can continue to represent the company till end. 2001 (4) CTC 749 SC.
Notice first on 29-08-1996 – Secondly on 07-09-1996 – same copy – valid – service of notice complainant sent notice on 29-08-1996 returned with endorsement as party not available and not claimed on 07-09-1996 – complainant sent very same notice dated 29-08-1996 with covering letter on 07-09-1996 – accused proceed to same on 09-09-1996 – date of sending of notice has to be construed as 29-08-1996 – 09-09-1996 has to be taken as actual service – there is no second cause of action and it cannot be said that notice was sent beyond limitation period. 20101 (4) CTC 617.
Judicial notice – Gazette notified – retirement valid – discharge petition allowed – dishonoured of cheque – complaint filed against person who had retired from partnership – retirement notified in gazette w.e.f. 13-09-1998 – cheque dated 31-12-1998 – trail court dismissed the discharge petition – High Court set aside order of trail court and discharged petitioner as his retirement as notified in gazette did not required any further proof – it is not necessary for petitioner to face trial. 2001 (4) CTC 399.
Drawer of cheque alone liable – even it is true that the cheque was issued by the first accused towards the discharge of the liability of the petitioner/second accused company. Still the 2nd accused company cannot be prosecuted as it is not the drawer – Hence the proceedings against the petitioner/2nd accused which not the drawer is quashed. 2001 (4) CTC 278.
Fine of Rs.65, 000/- by JM confirmed by SC – after the trial JM II, Kumbakonam convicted the accused U/S 138 and directed payment a fine of Rs.65, 000/- in default simple imprisonment for one year - the accused granted one month time to pay the fine – directed by the SC. 2001 (4) CTC 382 SC.
Onus of proof on accused U/S 118 and 139 of NIA Defense evidence must – Presumption to consideration – onus of proof regarding absence if lawful debt or liability – burden of proving that cheque had not been issued for debt or dues liability is on accused – formal denial by accused was held erroneous – accused did not let in evidence to prove absence of debt or liability - –conviction confirmed. 2001 (4) CTC 3282 SC.
Partners not mentioned in form A – not liable – Discharge maintained – Prosecution against person who is not parties – form “A” does not reflect name of revision petitioner as partner at relevant point of time – High court discharged petitioner relying on entry in form “A” as it is public document and Judicial notice can be taken. The petitioner filed an application for discharge from the case. It was rejected by the trial court – HC discharge the accused in revision. 2001 (4) CTC 354.
Liability by company – cheque by employee loan Account – company not liable – Financial liability of company – employee of company issuing cheque in his individual capacity to discharge liability to company – company and employee both arrayed as accused – proceedings against company quashed. 2001 (4) CTC 278.
“Holder” definition – Pay order issued by Co-operative Bank in favour complainant bank on account of their customer – complainant bank got assignment of such instrument – Holder means any person entitled in his own name to possession of cheque and to receive or recover amount from parties there to – complaint bank was also holder in due course as they become possessor of pay order before it became payable. 2001 (4) CTC 183 SC.
Drawer/Drawee – Same person – 138 lies – Bill of exchange must direct certain person to pay particular sum of money – three persons are not absolutely necessary to constitute bill of exchange – Phrase directing certain person to pay need not necessarily refer to third person – Drawer and drawee in bill of exchange could be same person. 2001 (4) CTC 183.
Pay order lies U/S 138 – Co-operative bank true pay order agreeing to pay complainant bank on account of particular customer – complainant bank got pay order assign to its name from customer – complainant bank presented such pay order and it was returned dishonoured for want of funds – pay order is either bill of exchange or promissory note – holder of such instrument is entitled to treat it as either bill of exchange or promissory note in terms of Sec.
17 of NIA – Complainant bank having elected to treat pay order as cheque, such pay order becomes cheque. 2001 (4) CTC 183 SC.
Magistrate can consider offence U/S 420 IPC (if not U/S 138 NIA) - Magistrate refusing to take cognizance of offence U/S 138 – HC on revision up holding order of Magistrate but remanding matter to consider U/S 420 IPC – Magistrate can take cognizance after enquiry. 2001 (4) CTC 189 SC.
Notice to company enough – Debt includes others liability also – Notice to company enough – Debt or other liability includes due from other than drawer. 2001 Crl.L.J. 2392 (A) Mad.
Joint A/ C – return as “signature required from another director” – 138 lies. Cheque returned as ‘account operation jointly. Another director signature required’ – Amounts to dishonour. 2001 Crl.L.J.2297 (A) Bom.
Earlier cheque for bill discounting not valid for subsequent HP transaction – Blank cheques issued for “bill discounting facility” Subsequently accused issued another set of cheques for hire purchase agreement – earlier cheques cannot be used for this. 2001 Crl.L.J.1585.
Non giving of reply notice will not grand for conviction. 2001 Crl.L.J.1585.
Sec.420 is valid even after Sec.138 is introduced. 2001 Crl.L.J.1489 (B).
Registration from firm should be proved in trial only. 2001 Crl.L.J. 2945 (D).
DJ can restore the case dismissed for default - complaint dismissed for default. The JM becomes functus officio and complaint cannot be restored. However DJ can restore, if counsel immediately represent after dismissal. 2001 Crl.L.J.2821. Kar.
Principal also liable. Cheque issued by authorised signatory given by principal – Principal would bound by act if mandate holder, who primarily liable. 2001 Crl.L.J. 3120 Mad.
Presumption - Once cheque was issued by drawer to payee it shall be presumed that it was issued for discharging legally enforceable liability. 2001 (3) CTC 403.
Peculiar return – Comes U/S 138 – Cheque returned as “payee’s vernacular endorsement requires attestation by drawer of by a Magistrate with seal”. This reason of endorsement is quite irrelevant. 2001 (3) CTC 403.
No averments about funds in complaint – plea rejected. Complaint cannot be quashed merely because complaint does not contain averment regarding insufficiency of funds. 2001 (3) CTC 403.
1st notice not U/S 138 (b) – 2nd notice valid – No cause of action for 2nd notice. But if notice U/S 138(b) issued after 15 days no cause of action for that notice. 2nd notice valid. Once notice as contemplated U/S 138 (b) is issued within prescribed period of 15 days and no complaint is filed there on drawer committing default of compliance of such notice – payee cannot represent same cheque and create another cause of action. 2001 (3) CTC 309 SC (DB).
Complaint by manager through power deed for company – valid – Complaint by manager of payee company on the strength of power of attorney deed is held to be valid. 2001 (3) CTC 301.
Defense evidence must – The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defense that the court must either believe defense to exist or consider its existence to be reasonably probable. 2001 (3) CTC 243 SC.
Special `court jurisdiction for Sec.138. Special court shall have jurisdiction to try offence U/S 138 if it relates to transactions in securities during 01-04-1991 and 06-06-1992 irrespective of date if commission of defense. 2001 (3) CTC 243 SC.
Section 139 Presumption by law – presumptions U/S 138 and 139 makes if obligatory on part of court to raise such presumptions where factual basis has been made for raising such presumption. 2001 (3) CTC 243 SC.
Correction of date should be within 6 months – The validity of cheque U/S 138(a) is 6 months only, hence if any correction of date should be done within that period. (Over ruled SC). (Contra to 2001 (3) CTC 25.) 2001 (1) LW (Crl) 332.
Stale cheque – complaint cannot be dismissed so – Magistrate without considering allegation simply dismissed complaint on ground as stale cheque – unsustainable (cheque was returned as funds insufficient and stale cheque) 1998 II Crimes 375.
Questioning on sentence – not necessary. Questioning about sentence U/S 252 of Cr.P.C with accused not necessary in summons case. 2001 (3) CTC 25.
Corrected date – valid – 6 months from correction. Six months period contemplated U/S 138 would commence from last corrected date as shown in cheque – accused requested complainant not to present same for payment immediately and that complainant could correct date of cheque and present for payment. (Contra 2001 (1) LW (Crl) 332) 2001 (3) CTC 225.
Give severe punishment – The judicial magistrate are directed to keep in mind the object of providing stringent punishment and the guide lines given by the Apex court in case 2001 (1) CTC 368, which awarding sentence on the accused who is found guilty of an offence U/S 138. (Finding para 12) 2001 (2) CTC 595.
HC can alter nature of sentence – This court can only alter the nature or the extent of sentence of alter the nature and the extent of sentence but a fresh compensation cannot be awarded (para 10 finding) 2001 (2) CTC 595.
Notice under instructions from power agent – valid notice. 2001 Crl.L.J. 2155.
Vicarious liability – Other directors not liable – must prima facie disclose acts by other directors. Complaint must prima facie disclose acts committed by Directors from which reasonable inference can be drawn regarding vicarious liability. 2001 (2) CTC 347.
Before trail – can be discharged – on perusal of public document. Court is within its power to consider even materials which accused may produce even before commencement of trial to decide whether accused is to be discharged – public document can be looked in to – form 32 is such a document. 2001 (2) CTC 78 = 2002 (1) CTC 227.
Sufficiency of averments – Authorised signatory – liable. Complaint containing clear averments that cheques were issued by authorised signatory of company only at instruction of other directors – they are liable. 2001 (2) CTC 78 = 2002 (1) CTC 227.
Retired director not liable. Form 32 reveals that 2nd petitioner did not function as director either on ate of cheque or when cause of action arose for non-payment – quashed. 2001 (2) CTC 78 = 2002 (1) CTC 227.
Bills of exchange and cheque – Post dated cheque is bill of exchange till date that bears arrives. Cheque is also bill of exchange but it is drawn on banker and payable on demand. Bill of exchange even if drawn on banker is not payable on demand and is not cheque. 2001 (2) CTC 57 SC.
Date of cheque should be taken – not date of issue – Six months time commences only from date which cheque bears and not date on which it was handed over to complainant. 2001 (2) CTC 57 SC.
Cheque issued by company – unless company liable – other directors not liable. Unless the company is made liable the question of punishing the person who are anchorage it and are responsible for business does not arise. Therefore, actual offence should have been committed by the company and then above the other two categories of persons U/S 141 (1, 2) become liable. 2001 (1) CTC 725.
Notice to company valid – other directors not necessary. Notice served on company but not MD and director who are parties in complaint – is valid notice U/S 138. 2001 (1) CTC 725.
Date of making complaint – is date for limitation – Making of complaint cannot be equated with taking cognizance of an offence – Bar by limitation U/S 142(b) applies for “making complaint” and not for “taking cognizance. 2001 (1) CTC 725.
Security plea rejected. Signature admitted – presumption can be rebutted – cheque issued for security – unacceptable. 2001 (1) CTC 671.
Criminal case U/S 138 cannot be stayed on ground of pending of Civil Suit. 2001 (1) CTC 671.
Cr.P.C. Sec. 420. Failed to pay installments, as per agreement – criminal case will not lie – it is pure civil nature. 2001 (1) CTC 624.
Post office savings bank also covers U/S 138. 2001 (1) CTC 616 SC.
Cheque should be presented within six months at paying bank. Cheque should be presented within 6 months (or) within validity which ever is sooner, at paying bank, not at collecting bank. 2000 Crl.L.J. 1152 Guj.
Notice to correct address – return as “out of station” – valid service. Notice sent to correct address – returned as “out of station” – deemed service – valid notice. 2000 Crl.L.J. 1005.
Material legal infirmities in complaint – fatal. Material legal infirmities in complainant’s story successfully rebut the presumption against accused – acquittal of accused proper. 2001 Crl.J. 745 Kar.
Interpretation of law – should achieve purpose of act. Law should be interpreted in light of objects intended to be achieved but such law – such interpretation is necessary even it deviates from general law. 2001 (1) CTC 538.
Reply as ‘received empty cover’ – second time collection & Notice – valid. Payee of cheque sending notice to drawer on dishonour – drawer sending reply that he received only empty envelops – payee - representing cheque and issued another notice and after compliance of act – Valid. 2001 (1) CTC 538.
Giving notice will not make an offence but receipt of notice must. Giving of notice by payee does not make an offence and ‘receipt’ of notice by drawer alone gives of action. 2001 (1) CTC 538.
Averments against other directors – must. Lack of averments as to other directors participation in day today affairs of company complainant must specifically allege that such person was in fact in charge and responsible for affairs of company. 2001 (1) CTC 425.
Condition to pay cheque amount while suspending sentence – valid. There is nothing unjust or unconscionable in imposing such condition while suspending sentence for offence U/S 138 – portion of fine should at least be directed to be remitted in court if fine is heavy while praying for suspension
No notice to company – but to MD who signed cheques – valid. No notice was issued to company on behalf of which cheque was issued – want of notice to company will not invalidate criminal proceedings against director who issued the cheque – provision for notice cannot be construed in narrow technical way with examining subject matter – prosecution is maintainable. 2001 (1) CTC 170 SC.
Entire payment of cheque made – even then offence is not absolved. Once offence is committed, any payment made subsequently will not absolve accused if liability of criminal offence but may have effect in awarding sentence. 2001 (1) CTC 170 SC.
Bank officer need not be examined. It can be taken as evidence without examine the bank officers. 2000 MLJ (Crl) 343.
Director not in charge of business not liable. Director of company who was not in charge of or was responsible for conduct of business of company at time of commence cannot be prosecuted as such person does not fall within purview of sec. 141 of NIA. 2002 (4) CTC 432 SC.
Premature complaint – valid. Filing of complaint and taking cognizance of an offence – distinction – mere presentation of complaint in court does not mean that its cognizance has been taken by magistrate – Date of filing of complaint is not crucial and date if taking cognizance is relevant – mere presentation of complaint at an earlier date need not necessarily result in dismissal of complaint or confer any right upon accused to absolve himself from criminal liability. 2000 (4) CTC 55 SC.
No plea – No evidence can be let in. 1990 (1) MLJ 127. 1992 (1) MLJ 188.
Left. Legal notice returned as “left” comes under Sec. 138 B. 2002 MWN AP 51/98.
Complaint presented by P.A., but signed by complainant – valid. Complaint presented by power of attorney but signed by complainant himself - complainant need not described as MD – description of complainant in cause title would not defeat prosecution since complainant has signed complaint. 2000 (3) CTC 680.
Complaint by “PA” without prior permission of complaint – valid. Complaint presented by power of attorney is maintainable even though complaint was not presented after obtaining prior permission from court – such illegality would not vitiate proceedings. 2000 (3) CTC 680.
Fine exceeds Rs.5, 000/- illegal/security of immovable property can be considered. Magistrate imposing sentence of 6 months and fine of Rs.12.82 lakhs will be paid as compensation – no compensation can be awarded where sentence is not only imprisonment but also fine. Para – 8. Accused given immovable properties as securities – (matter dismissed). 2000 (3) CTC 207.
Recall filling up lacuna – not valid. Petition U/S 311 of Cr.P.C. to examined PW.3. Bank officer to lead evidence regarding the fact misquoted by PW1 complainant – held, to fill up lacuna – petition not maintainable. 1999 Crl.L.J. 1097.
Authorised signatory – liable. Authorised signatory of company is liable to be prosecuted. There is no resolution appointing him by the board – not necessary - plead rejected. 1999 Crl.L.J. 229.
Improving case in counter – invalid. It is well settled law that it is not open to the respondents to improve their case by furnishing certain details in counter affidavit. 2000 (3) CTC 137.
Service of notice not mentioned in complaint/fatal. The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in Para 8 of the complaint, it must be held that notice has not been served - Sec. 138 states that … That being so in the complaint itself having not been mentioned that the notice has been served, on the assertions made in Para 8 of the complaint, the complaint itself is not maintainable – quashed. 1999 (3) CTC 164 SC.
Oral power enough. It was held in AIR Vs, Ramachandran (AIR 1961 Bom 292) that ‘order 6, rule 14 - signed by any person duly Authorised by him to sign the same’ in rule 14 need not be restricted to written authorizations. In the authorization is proved, even an oral authorization should be taken as sufficient’ – though the said decision is based on order 14 CPC there is no distinction as far as the authorization is concerned between civil and criminal laws. 1999(3) CTC 143.
(Family members) Other partners not liable U/S 420 Crl. Proceedings not a short cut. Family members of accused/drawer of cheque – Crl. Proceedings against them U/S 406 & 420 IPC held to be an abuse of process of law – quashed. Crl. Proceedings are not short cuts for other remedies available in law – any how 138 proceedings to be continued. 2000 (2) CTC 107.
Borrowal allegation – enough. Statement that accused had borrowed money and towards repayment he had issued cheque – Held there are sufficient pleadings to indicate that cheques were issued for discharge of existing debt. 1999 (1) LW (Crl) 414.
Premature complaint invalid. Complaint filed before expiry of 15 days from date of service of notice – complaint being premature – liable to be quashed. 2000 Crl.L.J.2572 (J&K). (Contra. 99 Crl.L.J. 949 = 2000 (4) CTC 55 SC. Premature complaint valid)
No plea to prosecute partner for company – accused not liable. Accused not sought to be prosecuted in his capacity as officer or person in charged of responsible to conduct of business of company – complaint against accused liable to be quashed. 2000 Crl.L.J.
Transfer of cases t o one court – same parties – allowed. Parties in all cases are same. In interest of justice and also for convenience of conducting trial complaints directed to be transferred to Chennai from Hydrabad. 2000 Crl.L.J.2472. SC.
No bar on sick companies. It commission of office U/S 138 NIA was completed before commencement of proceedings U/S 22(1) of Sick Industrial Companies Act 2985 there is no prohibition in maintaining prosecution U/S 142 of the NI Act. 2000 (2) CTC 548 SC.
Process recalled. Sufficient material to proceed against accused – recalling process not proper. 98 Crl.L.J. 1680 (A) Kar.
Capacity of lending. Complainant failed to prove capacity of lending huge amount – accused not liable to be punished. 98 Crl.L.J. 1680 (A) Kar.
Making part payment after filing complaint – accused cannot be acquitted. 98 Crl.L.J. 881.
Examine post man – plea rejected. Plea to examine postman in later stage – plea rejected. 98 Crl.L.J. 3671.
Defect in structure cheque not attract Sec. 138. Structural defect in cheque – cheque returned as not computerized to honour the same – Sec. 138 will not attract. 98 Crl.L.J. 4750 Bom.
Amount in account left for particular cheque should be proved. Unless it is shown that such payment was made towards the amount payable under cheque – proceedings cannot be quashed. 98 Crl.L.J. 3525 (A) Raj.
Sec. 2 of Power of attorney act. Power agent can act as donor. The section declares that every thing done by donee is as done by donor. 98 Crl.L.J. 3870 Guj.
Consideration past/future valid. A consideration can be past, present or future and therefore, promise to deliver goods in future can be termed as future consideration, and if any cheque is given for future consideration, it cannot be said as unlawful. 1996 Crl.L.J. 3099.
Not claimed/deemed service. Intimation given – notice not claimed – willful negligence – notice deemed served. 1998 II LW (Crl) 468.
I notice not claimed. II notice not valid. Ist notice returned as unserved, No cause of action for II notice. (Finding). 1997 Crl.L.J. 4275 AP.
Cause of action arises only once. 1999 MLJ (Crl) 649.
Twice fine not must. Impose fine twice the cheque amount – not imperative that court should impose in all cases. 1999 MLJ (Crl) 241.
Interest. Claiming interest in notice not illegal. 1999 MLJ (Crl) 269.
15 days time in notice not necessary. Mentioning 15 days time in notice is not necessary. 1999 MLJ (Crl) 138.
Substitution valid. Complaint filed by one person. Subsequently deed altered and another person Authorised – valid. 1999 MLJ (Crl) 727 Kar.
Unregistered firm – can file complaint. Complaint filed by unregistered partnership firm is valid. Registration is required for civil rights only. 1999 MLJ (Crl) 727 Kar. (Contra 1999 (2) CTC 540. Unregistered firm cannot file suit.)
Enhancement of punishment. Sentence inadequate, hence the same can be modified. 1999 MLJ (Crl) 111.
All partners not liable. It would be travesty of justice to ask all the partners to prove that the offence was committed without their knowledge. 1989 SC 1982.
Company not liable if cheque issued individually. Complaint against 1st accused company who is not drawer of cheque is not maintainable – Complaint against company quashed. Cheque issued by 2nd accused in individual capacity for company. 2nd accused alone is liable. 2000 (2) CTC 443.
Notice and case against MD valid. Complaint filed against Managing Director who has signed cheque – Notice issued to signatory of cheque is valid – No infirmity in issuing notices U/S 138. 2000 (1) CTC 302.
Complaint can be filed either by party or by pleader. Power deed not filed at the time of filing – valid. The court has’ duty’ not ‘power’ to accept the complaint. Complaint can not be returned for curing defects etc.., All documents not necessarily are filed/mere complaint is enough? Number should be given via separate register, while filing. Limitation applies for filing only/not for representing, etc. 2001 (1) CTC 225.
Company not necessary party. Complaint can be proceeded with as against other person even if prosecution proceedings against company were not taken. 2001 (1) CTC 94 SC.
Power agent by MD of company – invalid. Private company filed case – power of attorney agent of MD of private company has no locus stand in the absence of authorization by means of company resolution – delegate cannot delegate. 1999 (3) CTC 764.
Notice by drawer – valid. Cheque can be presented any number of times: - Valid notice – no form of notice is prescribed under Act to drawer on dishonour of cheque – notice sent by drawee directing drawer to arrange for payment on re-presentation of cheque and threatening to initiate criminal action constitutes valid notice for purpose of this section. Sec.142 – police could not start investigation without written complaint. 1999 (3) CTC 611 SC.
Cause of action commences from. Arose after 15 days from the date of return of the notice as unclaimed. 1999 (3) CTC 358 SC.
Compensation un limited. No limit is mentioned in Sub.sec. (3) of Sec. 357 Cr.P.C. magistrate can award any sum as compensation but reasonable. 1999 (3) CTC 358 SC.
Notice returned unclaimed deemed as served. Payee’s duty is over by dispatching notice. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. Evading service of notice is deemed served. 1999 (3) CTC 358 SC.
Fine/Sentence. Magistrate cannot impose fine exceeding Rs.5000/-/sentence not exceeding three years. High court cannot increase the sentence imposed by trial court (Sec, 386 Cr.P.C.). 1999 (3) CTC 358 SC.
Jurisdiction Territorial. 1). Drawing of cheque 2). Presentation of cheque to bank. 3). Returning of cheque unpaid by ban. 4) Giving notice in writing to drawer of cheque demanding payment. 5) Failure of drawer to make payment within 15 days of receipt of notice – five difference acts were done in fine difference localities - complainant can choose any one of courts exercising jurisdiction of any one local area within territorial limit of which any of those 5 acts done. 1999 (3) CTC 358 SC.
No evidence that accused had charged his residence or that he had not received notice beyond his control – plea rejected. 1998 (2) Crimes 191 Kar.
Notice not claimed – without proof of change of address. 1998 (2) Crimes 191 Kar.
Notice received by some other – not valid. Notice received by some one else other than proprietorship concern - invalid. 1999 LW (Crl) I 395.
Without proprietor – not valid. Prosecution against proprietorship concern without impleading proprietor – invalid. 1999 LW (Crl) I 395.
Belated petition U/S 91 Cr.P.C. – valid. Petition filed U/S 91 Cr.P.C. to prove his case and for rebuttal of the presumption U/S 138 of NIA – petition filed during examination U/S 313 Cr.P.C. – Right of the accused can not be nagatived on the ground as belated. 1999 LW (Crl) I 82.
Authorization not proved – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition, complaint maintainable. 1999 I Crl.L.J. 1032. Bom. (Contra 99 Crl.L.J. 419 AP).
Notice to MD valid. Notice issued to MD and not to company - complaint against company Maintainable – notice valid. 1999 (3) CTC 179.
Authorization. If the authorization is proved even an oral authorization should be taken as sufficient. 1961 Bom 292.
Other partners not liable. Initiating prosecution against sleeping partners or own, when the company is main offender cannot sustained. 1992 LW (Crl) 120.
Other partners not liable. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be travesty of justice to prosecute all partners and ask them to prove under the proviso to sub section (1) that the offence was committed without their knowledge. 1989 SC 1982 = 1983 Crl.L.J.159.
Stop payment – attracts Sec. 138. 1996 (1) CTC 193 = 1996 I LW (Crl) 325. Also 1997 (1) CTC 54.
Notice refused – valid service. Service on directors of company to proper address which was refused is valid service. 1999 (3) CTC 143.
Cheques given as security – not valid. Dishonour of cheques given as security towards loan would attract Sec. 138 NIA. 1999 (3) CTC 143.
Authorization after filing – valid. Subsequent authorization given cannot be thrown out on the ground that there was no authorization given at the time of filing complaint. 1999 (3) CTC 143.
Other directors not liable. Except for bald averment there was no evidence to show that they were in charge of and responsible for conduct of business of company. 1999 (3) CTC 143.
JM can fine more than Rs.5000/-. JM can impose more than Rs.5, 000/- in view of the Sec. 142 of NI Act. (Dissented by Raman J.) 1999 Cr.L.J.968 Mad. = 1999 (2) CTC 652 (FB).
Abetment charges – invalid. MD and salesman of company at relevant time are not liable for refund of amount by present MD – No abetting charges against them are liable U/S 138. 1999 I Crl.L.J.75.
Time not necessary. Firm need not be included as accused unless (1). It is established that the firm alone was liable to discharge liability. (2). Return memo issued after 10 days by bank, notice issued within 15 days after the said 10 days valid. 1999 Crl.L.J.934,
Authorization not produced – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition – complaint maintainable. 1999 I Crl.L.J. 1032 (Contra 99 Crl.L.J. 419 AP)
Notice not returned or delivered. Notice sent through registered post – neither postal cover nor acknowledgement returned – presumption is notice served. 1999 Crl.L.J. 329 AP.
Notice not served as garage closed. Notice not served as garage closed – maintainable. 1999 Crl.L.J. 949 (B) Raj.
Jurisdiction. Court within whose jurisdiction cheque was presented for encashment – has jurisdiction to entertain complaint. 1998 Crl.L.J.2402 Ker.
Deposit of amount – not enough. Deposit of amount by accused in account not sufficient to hold that that offence U/S 138 is not made out. Unless it is shown that such payment was made towards the amount payable under cheque. 1998 Crl.L.J.3525 (A) Raj.
Company not necessary. Company need not be added as accused (based on 1984 SC 1824) (should be added 1988 SC 1123). 1998 Crl.L.J.4758.
Mens-rea not necessary. 1999 Crl.L.J. 4361 (B) Bom.
No averments against directors – quashed. No averments or allegation against directors – nor material showing alleged offence was committed with consent of them – proceeding quashed against him. 1998 Crl.L.J. 4383 (Del) 4521 (AP).
Noida Entrepreneurs Assocn. vs N O I D A & Ors 2011 AIR 2112 = 2011 (8 ) SCR 25 = 2011 (6 ) SCC 508 = 2011 (6 ) JT 223 = 2011 (5 ) SCALE 505 So far as the initiation of criminal proceedings is concerned it is governed by the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). Section 468 thereof puts an embargo on the court to take cognizance of an offence after expiry of limitation provided therein. However, there is no limitation prescribed for an offence punishable with more than 3 years imprisonment. Section 469 declares as to when the period of limitation would start. Sections 470-471 provide for exclusion of period of limitation in certain cases. Section 473 enables the court to condone the delay provided the court is satisfied with the explanation furnished by the prosecution or where the interest of justice demands extension of the period of limitation.
Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762, dealt with the issue and observed as under: "14. The general rule of criminal justice is that a crime never dies. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders)....... It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict." The aforesaid judgment was followed by this Court in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368. 1
WHEN CHEQUE BOUNCE CASE UNDER N.I. ACT HAS BEING ADJUDICATED, THERE IS NO BAR TO FILE EVEN IPC 420 CASE SAYS SUPREME COURT 2012 SC
JUSTICE B.S. Chauhan, JUSTICE Jagdish Singh Khehar in the case of Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr Decided on 23 April, 2012
FACTS OF THE CASE:- Respondent No. 2 filed a complaint dated 22.10.2003 i.e. Criminal Case No. 1334 of 2003 under Section 138 of N.I. Act on the ground that the appellant had taken hypothecation loan of Rs. 20 lakhs and had not repaid the same. In order to meet the said liability, the appellant issued cheque bearing no. 59447 and on being presented, the cheque has been dishonoured. …. Subsequent thereto on 6.2.2004, the respondent no. 2 filed an FIR being I.C.R. No. 18 of 2004 under Sections 406/420 read with Section 114 of Indian Penal Code, 1860 (hereinafter referred as `IPC’) with the Sidhpur Police Station for committing the offence of criminal breach of trust, cheating and abetment etc. … In the criminal case No.1334 of 2003 filed under Section 138 of N.I. Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal No. 12 of 2006, before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2 has preferred Criminal Appeal No. 1997 of 2008 before the High Court of Gujarat which is still pending consideration. .. Appellant filed an application under Section 482 Cr.P.C., seeking quashing of ICR No. 18 of 2004 and Criminal Case No. 5 of 2004, pending before the Chief Judicial Magistrate, Patan, on the grounds, inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in criminal case under Section 138 of N.I. Act. Thus, he cannot be tried again for the same offence. In the facts of the case, doctrine of double jeopardy is attracted. The High Court dismissed the said application. Hence, this appeal.
DOCTRINE OF DOUBLE JEOPARDY EXPLAINED WITH
In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the customs authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called `FERA’) read with the relevant notification. In the background of these facts, the plea of “autrefois acquit” was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called the ‘Constitution’). This court held that the fundamental right which is guaranteed under Article 20 (2) enunciates the principle of “autrefois convict “ or “double jeopardy” i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim “nemo debet bis punire pro uno delicto”, that is to say that no one ought to be twice punished for one offence. The plea of “autrefois convict” or “autrefois acquit” avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of “autrefois acquit” is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.
The Constitution Bench of this Court in S.A.Venkataraman v. Union of India and Anr., AIR 1954 SC 375, explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20 (2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words ‘prosecuted’ and ‘punished’ are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive.
In Om Prakash Gupta v. State of U.P., AIR 1957 SC 458; and State of Madhya Pradesh v. Veereshwar Rao Agnihotri, AIR 1957 SC 592, this Court has held that prosecution and conviction or acquittal under Section 409 IPC do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.
In Leo Roy Frey v. Superintendent, District Jail, Amritsar & Anr., AIR 1958 SC 119, proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120- B IPC. This Court held that an offence under Section 120-B is not the same offence as that under the Sea Customs Act: “The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.”
In The State of Bombay v. S.L. Apte and Anr. AIR 1961 SC 578, the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2), held: “To operate as a bar the second prosecution and the consequential punishment thereunder, must be for “the same offence”. The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out……………The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to “the act or omission constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.”
In Roshan Lal & Ors. v. State of Punjab, AIR 1965 SC 1413, the accused had caused disappearance of the evidence of two offences under sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under section 201 IPC. It was held that neither section 71 IPC nor section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under section 201 IPC, though it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court in Kharkan & Ors. v. State of U.P., AIR 1965 SC 83.
In Bhagwan Swarup Lal Bishan Lal v. The State of Maharashtra, AIR 1965 SC 682, while dealing with the issue, held: “The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747. Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence…. …..The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that Article has no relevance to the present case.”
In The State of A.P. v. Kokkiligada Meeraiah & Anr., AIR 1970 SC 771, this Court while having regard to Section 403 Cr.P.C., 1898, held:
“The following important rules emerge from the terms of Section 403 of the Code of Criminal Procedure:
(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.
(4) A person who has once been tried by a Court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.”
The Constitution Bench of this Court in The Assistant Collector of the Customs, Bombay & Anr. v. L. R. Melwani & Anr. AIR 1970 SC 962, repelled the contention of the respondents therein that their criminal prosecution for alleged smuggling was barred because proceedings were earlier instituted against them before Collector of Customs. It was observed that neither the adjudication before the Collector of Customs was a prosecution, nor the Collector of Customs was a Court. Therefore, neither the rule of autrefois acquit can be invoked, nor the issue estoppel rule was attracted. The issue estoppel rule is a facet of doctrine of autrefois acquit.
This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide: Pritam Singh & Anr. v. The State of Punjab, AIR 1956 SC 415; Manipur Administration, Manipur v. Thokchom Bira Singh, AIR 1965 SC 87; Workmen of the Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626).
In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988 SC 1106, wherein the accused were prosecuted under Customs Act, 1962 (hereinafter referred to as `Customs Act’) and subsequently under Gold (Control) Act, 1968, (hereinafter called as `Gold (Control) Act’) it was held that the ingredients of the two offences are different in scope and content. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act. It was held that what was necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints.
In M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement AIR 1993 SC 1188, it was held: “The further contention that under the Sea Custom Act for the self same contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reasons that two Acts operate in different fields, one for contravention of FERA and the second for evasion of excise duty. The mere fact that the penalty proceedings for evasion of the excise duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application.”
In A.A. Mulla & Ors. v. State of Maharashtra & Anr., AIR 1997 SC 1441, the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act, 1947 for making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to the prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried for the same and acquitted. The appellants were also tried for offence under Section 120-B IPC, Sections 135 and 136 of the Customs Act, Section 85 of the Gold (Control) Act and Section 23(1-A) of FERA and Section 5 of Import and Export (Control) Act, 1947. The appellants filed an application before the Judicial Magistrate contending that on the selfsame facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 Cr.P.C.). This Court held: “After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact-situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature……. Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants.”
In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001 SC 1092, this Court considered the argument that if the punishment had already been imposed for Court Martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20 (2) of the Constitution. The Court explained that the Court Martial proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over- lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the court placed reliance upon its earlier judgment in R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658.
In Union of India & Anr. v. P.D. Yadav, (2002) 1 SCC 405, this Court dealt with the issue of double jeopardy in a case where the pension of the official, who stood convicted by a Court-Martial, had been forfeited. The Court held: “This principle is embodied in the well-known maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others….. Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16 (a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16 (a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases.”
In State of Rajasthan v. Hat Singh & Ors. AIR 2003 SC 791, this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if prohibitory order is promulgated, a subsequent criminal act even if falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 Cr.P.C. and Section 26 of the General Clauses Act. Both the provisions employ the expression “same offence”.
Court in State of Haryana v. Balwant Singh, AIR 2003 SC 1253, observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc. Therefore, it is not always necessary that in every such case the provision of Article 20(2) of the Constitution may be attracted.
In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR 2003 SC 2545, this Court while considering the case for quashing the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.
RATIO MADE OUT BY THE COURT:- In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
In Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581,
“The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.”
THE SUPREME COURT IN BELOW TWO CASES HOLDS THAT DOUBLE JEOPARDY OCCURS IN FILING 138 CASE AND ANOTHER 420 CASE. BUT SUPREME COURT IN THIS CASE HAS SAID THAT DECISION IS NOT APPLICABLE TO CURRENT CASE SINCE – “In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.”
G. Sagar Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law.
Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, is concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.
SUPREME COURT HELD THAT:- Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. .. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.