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      REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 645 of 2012

Sangeetaben Mahendrabhai Patel        …Appellant         

Versus

State of Gujarat & Anr.                  …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and  order  dated  18.8.2011  passed  by  the  High Court  of  Gujarat  at  

Ahmedabad in Criminal Misc. Application No. 7807 of 2006, by which  

the  High  Court  has  dismissed  the  application  filed  by  the  present  

appellant  under  Section  482  of  Criminal  Procedure  Code,  1973  

(hereinafter referred as `Cr.P.C.’) for quashing the I.CR No. 18 of 2004  

and Criminal Case  No.  5  of  2004  pending before the Chief Judicial  

Magistrate, Patan,  on the plea of double jeopardy for the reason that the

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appellant has already been tried and dealt with under the provisions of  

Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as  

`N.I. Act’) for the same offence.  

2. Facts and circumstances giving rise to this appeal are that:

A. 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.  

B. 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.   

C. 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  

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preferred Criminal Appeal No. 1997 of 2008 before the High Court of  

Gujarat which is still pending consideration.  

D. 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.  

3. Shri  Abhishek  Singh,  learned  counsel  appearing  for  the  

appellant,  has  submitted  that  the  ICR  as  well  as  the  criminal  case  

pending before the Chief Judicial Magistrate, Patan,  is barred by the  

provisions of Section 300 Cr.P.C. and Section 26 of the General Clauses  

Act,  1897 (hereinafter called ‘General Clauses Act’) as  the appellant  

has already been dealt with/tried under Section 138 of N.I. Act for the  

same offence.  Thus, the High Court committed an error in not quashing  

the said ICR and the criminal case. It amounts to double jeopardy and,  

therefore, the appeal deserves to be allowed.  

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4. On  the  contrary,  Shri  Rakesh  Upadhyay,  learned  counsel  

appearing for the respondent no. 2 and Mr. S. Panda, learned counsel  

appearing for the State of Gujarat, have vehemently opposed the appeal  

contending that the provisions of Section 300 Cr.P.C. i.e. `Doctrine of  

Double Jeopardy’ are not attracted in the facts and circumstances of the  

case,  for the reason, that the ingredients of the offences under Sections  

406/420 read with Section 114 IPC are entirely distinct from the case  

under Section 138 of N.I. Act, and therefore, do not constitute the same  

offence.   The appeal is devoid of any merit and liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.   

The sole issue raised in this appeal is regarding the scope and  

application of  doctrine of  double jeopardy.   The rule against  double  

jeopardy  provides  foundation  for  the  pleas  of autrefois  acquit and  

autrefois convict. The manifestation of this rule is to be found contained  

in Section 300  Cr.P.C;  Section 26  of  the  General  Clauses  Act;  and  

Section 71 I.P.C.

Section 300(1) Cr.P.C. reads:

“A person who has once been tried by a Court of   competent  jurisdiction  for  an  offence  and   convicted or acquitted of such offence shall, while   

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such conviction or acquittal remains in force, not   be liable to be tried again for the same offence,   nor  on the  same facts  for  any  other  offence  for   which  a  different  charge  from  the  one  made   against  him  might  have  been  made  under  sub- section (1) of Section 221, or for which he might   have  been  convicted  under  sub-section  (2)  thereof.”

Section 26 of the General Clauses Act, 1897 reads:

“Provision as to offences punishable under two or   more  enactments.  –  Where  an  act  or  omission   constitutes  an  offence  under  two  or  more   enactments, then the offender shall be liable to be   prosecuted  and punished under  either  or  any of   those  enactments,  but  shall  not  be  liable  to  be   punished twice for the same offence.”

Section 71 of I.P.C. reads: “Limit  of  punishment  of  offence  made  up  of   several  offences.  -  Where  anything  which is  an   offence is made up of parts, any of which parts is   itself an offence, the offender shall not be punished   with the punishment of more than one of such his   offences, unless it be so expressly provided.

…………………………..”

6. 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  

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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  

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unless it is shown that the verdict of acquittal of the previous charge  

necessarily involves an acquittal of the latter.

7. The Constitution Bench of this Court in S.A.Venkataraman v.  

Union of India & 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.

8. 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.

9. 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)  

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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.”                                                  (Emphasis added)

10. 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.

  xx       xx       xx         xx         xx         xx         xx

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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.”     (Emphasis added)

11. 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.

12. In  Bhagwan  Swarup  Lal  Bishan  Lal  v.  The  State  of  

Maharashtra, AIR 1965 SC 682, while dealing with the issue, held:

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“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.”  

  (Emphasis added)

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13. 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   

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been  convicted  under  the  Code  of  Criminal   Procedure.”  (Emphasis added)

14. 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.  

15. 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.  

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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).  

16. 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  

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necessary is to analyse the ingredients of the two offences and not the  

allegations made in the two complaints.

17. 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.”

(See also:  State of Bihar v. Murad Ali Khan & Ors., AIR 1989 SC 1;  

Union of India etc. etc. v.  K.V. Jankiraman etc. etc., AIR 1991 SC  

2010;  State of Tamil Nadu v.  Thiru  K.S.  Murugesan & Ors.,  

(1995) 3 SCC 273; and State of Punjab & Anr.  v.   Dalbir Singh &  

Ors., (2001) 9 SCC 212).

18. 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  

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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.”   (Emphasis added)

19. In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001  

SC 1092, this Court considered the argument that if the punishment had  

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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.

20.     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   

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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."

21. 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”.

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22.     Similar  view has  been  reiterated  by this  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.

23. 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.  

24. 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  

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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.  

25. In  Radheshyam Kejriwal v.  State of West Bengal & Anr.,  

(2011)  3  SCC  581,  while  dealing  with  the  proceedings  under  the  

provisions  of  Foreign  Exchange  Regulation  Act,  1973,  this  Court  

quashed the proceedings (by a majority of 2:1) under Section 56 of the  

said  Act  because  adjudication under  Section 51  stood  finalised.  The  

Court held :  

“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   

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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 ratio of the aforesaid judgment is not applicable in this case  

for the reason that proceedings under Section 138 of N.I. Act are still  

sub  judice as  the appeal  is  pending and the  matter  has  not  attained  

finality.  

26. Learned counsel for the appellant has further placed reliance on  

the judgment in 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.  

In fact, the issue as to whether the ingredients of both the offences were  

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same, had neither been raised nor decided. Therefore, the ratio of that  

judgment does not have application on the facts of this case.

           Same remained the position so far as the judgment in 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.   

27. 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  

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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.  

28.    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.  

The appeal is devoid of any merit and accordingly dismissed.  

            ….....…….……………………..J.    (Dr. B.S. CHAUHAN)

                                 .......……………………………J.                                      (JAGDISH SINGH KHEHAR)   

New Delhi, April 23, 2012

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