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2016 DIGILAW 573 (GAU)

Vinnet Gupta v. State of Assam

2016-06-21

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Manojit Bhuyan, J. The prayer for quashing the First Information Report dated 6.8.2015 is primarily on the doctrine of autrefois acquit. 2. The basic facts to be noticed is that on 6.8.2015 the Respondent No. 2 lodged first information before the In-charge, Jalukbari Police Out Post, Guwahati, making imputations against the petitioner and others. On receipt thereof, Jalukbari Police Station Case No. 616/2015 dated 6.8.2015 was registered under Sections 406, 420, 468, 471 of the Indian Penal Code. 3. The ingredients of the accusations to bring in the applicability of the offences for criminal breach of trust, cheating, forgery for the purpose of cheating and using a forged document as genuine are laid on the premises that the petitioner had approached the respondent/informant with a proposal that the latter should purchase a "Large Format Inject Printer Machine" and start the business of printing on glass, tiles etc., which would ensure heavy profit. On a particular day, the petitioner had visited the residence of the respondent/informant with another person i.e. Dhananjay Tewari and had discussed on the details and sale consideration of the machine, stated to be Rs.30,00,000/- (Rupees Thirty Lakhs). The respondent was informed that on payment of Rs.5,00,000/- (Rupees Five Lakhs), the machine will be installed in his business premises, with the balance amount to be paid within 9 (nine) months. The petitioner, the respondent and Dhananjay Tewari left for Delhi on 8.5.2013 to meet the Company official for purchase of the machine. At Delhi, the petitioner took the respondent to the office of the Company, namely, "M/s Ess Dee Nutek Infinities Pvt. Ltd." on 9.5.2013 and introduced him to the Proprietor of the Company i.e. Tarun Dev Sharma. Upon their inducement, the respondent gave a Cheque bearing No.088843 dated 9.5.2013 for an amount of Rs.5,00,000/- (Rupees Five Lakh), receipt of which was duly acknowledged by the said Proprietor by issuing by issuing a Money Receipt, towards advance booking amount. Further, the petitioner used to visit the respondent's residence frequently for having discussion regarding the machine and obtained signatures on blank papers for preparing/obtaining Road Permit, Challans etc. from the department concerned to facilitate import of the machine from Delhi, and, in fact, on 19.6.2013 the petitioner had obtained signatures on blank papers for the purpose of getting Road Permit from the Sales Tax Office. Signatures on blank papers were given on good faith. 4. from the department concerned to facilitate import of the machine from Delhi, and, in fact, on 19.6.2013 the petitioner had obtained signatures on blank papers for the purpose of getting Road Permit from the Sales Tax Office. Signatures on blank papers were given on good faith. 4. According to the respondent, on 6.4.2015 he had received a Notice issued by an Arbitrator in Delhi and among the papers/documents, there was a Sale Agreement dated 9.5.2013 wherein the total sale consideration of the machine was shown at Rs. 20,00,000/- instead of Rs.30,00,000/-, as per the Money Receipt. The Sale Agreement was shown to be executed and signed at Delhi bearing the signatures of 3 (three) witnesses-the second witness being the respondent's wife, although his wife never visited Delhi or endorsed as a witness thereof. Also, the respondent did not sign on the Sale Agreement. Imputation is that the petitioner converted the signed blank papers into a Sale Agreement and the signature of his wife was procured on 19.6.2013 at the residence at Guwahati by the petitioner for the purpose of obtaining Road Permit and Challan etc. The petitioner also fraudulently obtained Challan by showing himself as the Manager of the respondent's Company, although at no point of time the petitioner was appointed as such. Even on an earlier occasion, the petitioner had obtained Road Challan and other documents in the name of the respondent's Company i.e. MR Trading Company by forging signature and making Rubber Stamp of the Company without consent and authority, presenting himself as the Manager, for which a First Information was also lodged, being Jalukbari Police Station Case No. 924/2014. 5. Misappropriation of money by the petitioner, in collusion with the Proprietor of the Delhi Company, is alleged as well as cheating the respondent when a broken machine was made to be delivered, which the respondent refused to take delivery. Against the total sale consideration shown at Rs.30,00,000/-, the petitioner had sent a Road Challan showing the total sale consideration at Rs. 10,50,000/-, which is the actual price of the machine. In this way, the petitioner along with the Proprietor of the Delhi Company and Dhananjay Tewari cheated the respondent, thereby misappropriating a huge amount of money which was entrusted to them by the respondent. In fact, a message was also received from the petitioner acknowledging receipt of Rs. 25,00,000/-. 10,50,000/-, which is the actual price of the machine. In this way, the petitioner along with the Proprietor of the Delhi Company and Dhananjay Tewari cheated the respondent, thereby misappropriating a huge amount of money which was entrusted to them by the respondent. In fact, a message was also received from the petitioner acknowledging receipt of Rs. 25,00,000/-. As such, the petitioner and the Company concerned, by means of preparing a Sale Agreement, obtained a reward of Rs. 21,00,000/- against the respondent. Appropriate enquiry and action against the petitioner was made for committing the offence of misappropriation of money and for forging the signature of his wife and misusing the respondent's signature taken on blank papers and converting the same into valuable documents. 6. Argument advanced by Mr. D. Chakraborty, learned counsel representing the petitioner, is that on the basis of the Jalukbari RS. Case No. 616/2015, no investigation/proceeding is open for initation, being hit by the principle of autrefois acquit. According to Mr. Chakraborty, on the same facts and circumstances and with the ingredients of the offences alleged being similar, the respondent had earlier filed Complaint Case No. 4361/2013 before the Court of the Chief Judicial Magistrate, Kamrup, at Guwahati. By order dated 30.12.2013, the learned Judicial Magistrate 1st Class, Kamrup (M), Guwahati, had directed the Police to register a case and to investigate into the matter. Accordingly, the said complaint was treated as FIR dated 10.1.2014 and a case, being Jalukbari P.S. Case No. 25/2014 was registered under Sections 120B, 406, 420, 468 of the Indian Penal Code. Mr. Chakraborty submits that challenge being made to it under Section 482 of the Code of Criminal Procedure, this Court after an exhaustive discussion on facts and in law, set aside and quashed the First Information Report and the order dated 30.12.2013, in so far as the petitioner was concerned. 7. On the facts above, the issue for adjudication is to ascertain whether the identity of the ingredients of the offences as alleged in the earlier FIR dated 10.1.2014 are same or distinct from that of the FIR dated 6.8.2015 and whether, in the attending facts and circumstances, the doctrine of autrefois acquit is attracted and would come to the aid of the petitioner. 8. 8. On the first question, the Complaint/FIR dated 10.1.2014 discloses that in March, 2013, the petitioner had approached the respondent/informant with a proposal for purchasing a "Large Format Inject Printer Machine" so that the latter could start a business of printing on glass, tiles etc. The respondent was assured of heavy profit from the business. Few days later, the petitioner along with another person Dhananjay Tewari visited his house with the same proposal and on pressure being exerted, the respondent agreed to the proposal. The respondent was informed that the total sale consideration of the machine is Rs.30,00,000/- (Rupees Thirty Lakh), out of which an amount of Rs.5,00,000/- (Rupees Five Lakh) will have to be paid first, whereupon the Company will install the machine and make it operational. The balance amount of Rs.25,00,000/- will have to be paid within 9 (nine) months. On 8.5.2013, the respondent was taken to Delhi to meet Sri Tarun Dev Sharma and on the next date i.e. 9.5.2013, the respondent along with the petitioner and Sri Dhananjay Tewari had visited the office of Sri Tarun Dev Sharma and discussed the matter. The respondent had also paid an advance amount of Rs. 5,00,000/- for purchase of the machine, described as Nutek Machine, Model No. FOR TUNE JET 2512/4, receipt whereof was acknowledged by Sri Tarun Dev Sharma by way of a Money Receipt. 9. The FIR dated 10.1.2014 also discloses that the respondent, who admits to not knowing how to read English, relied upon the petitioner and Sri Dhananjay Tewari and put his signature on the Money Receipt-cum-Agreement in good faith. The respondent was assured that the machine will be sent within 2 (two) months. In course of time and on the asking of the petitioner to make full payment, without which the machine is not capable of being delivered, the respondent parted with Rs.25,00,000/-, in part payments. Imputations of forging the signature of the respondent in Road Challan (C Form) without consent for an amount of Rs. 10,50,000/- and for cheating, was also made. Further, that the respondent was also made to pay transportation cost under compelling circumstances and that the machine which was eventually sent was in a damaged/broken condition, is also alleged. The respondents, however, did not take delivery of the machine. On the said allegations, offences of cheating and misappropriation of an amount of Rs.30,00,000/- was laid. 10. Further, that the respondent was also made to pay transportation cost under compelling circumstances and that the machine which was eventually sent was in a damaged/broken condition, is also alleged. The respondents, however, did not take delivery of the machine. On the said allegations, offences of cheating and misappropriation of an amount of Rs.30,00,000/- was laid. 10. A plain reading of the FIR dated 10.1.2014 and the FIR dated 6.8.2015 reveals that the ingredients of the offences in both are same and not distinct from each other. This is, however, not to readily infer that the doctrine of autrefois acquit is attracted. This doctrine would be noticed in the later part of this judgment. At the present, it would be worthwhile to notice the findings and decisions of this Court in Crl. Pet. 97/2015, instituted by the petitioner, disposed of vide judgment & order dated 2.9.2015, along with Crl. Pet. 569/2014 filed by Sri Tarun Dev Sharma. The said petitions under Section 482 CrPC was directed against the aforesaid FIR dated 10.1.2014 and the order dated 30.12.2013 of the Judicial Magistrate, 1st Class, Kamrup (M), Guwahati. 11. This Court while rendering the judgment & order dated 2.9.2015 look note of the following facts, amongst others: (i) From the complaint it transpired that the role of the petitioner ended after reaching the settlement towards supply and purchase of the machine. The petitioner had only accompanied the informant to the office of Sri Tarun Dev Sharma at Delhi and had advised the informant to purchase the machine only with a view to earn more profit. There is nothing on record to show that the petitioner at the time of the initial transaction had any fraudulent or dishonest intention to cheat the informant. It was only a plain business transaction based on agreed terms and conditions between the parties. (ii) The complaint does not indicate as to who had received the amount from Mahalaxmi Traders and who had misappropriated the remaining amount after paying Rs. 10,00,000/- to Sri Tarun Dev Sharma. There is no averment that the petitioner had either received or handled any amount with regard to the said transaction and, therefore, it cannot be concluded that there is any specific allegation of misappropriation of money by the petitioner. 10,00,000/- to Sri Tarun Dev Sharma. There is no averment that the petitioner had either received or handled any amount with regard to the said transaction and, therefore, it cannot be concluded that there is any specific allegation of misappropriation of money by the petitioner. As regards the alleged forgery for bringing in the offences under Section 468 IPC, although the complainant stated that the Road Challan was prepared by forging his signature, however, failed to specifically mention as to who had forged his signature. (iii) For constituting an offence of forgery, dishonest intention to cause damage or injury etc. must exist. It must also be shown that the forgery was committed for the purpose of cheating. However, there were no ingredients of cheating and from the attending facts and circumstances, proceeding under Sections 420 and 468 IPC was not maintainable. Also, the informant failed to make out a case under Section 406 IPC. (iv) The dispute raised in the complaint is purely a dispute of civil nature and same is covered by the arbitration clause provided in the agreements executed by and between the parties at the initial time of transaction. (v) From the discussions made in the judgment and considering the entire aspect of the matter, the order dated 30.12.2013 passed by the learned Magistrate was not maintainable. There is sufficient merit in the petition requiring interference under Section 482 Cr. P.C. for the purpose of preventing abuse of process of the Court and for protecting the petitioner from being unnecessarily harassed. 12. While Mr. D. Chakraborty has advanced arguments by resorting to the doctrine of autrefois acquit, primarily on the ground that on the same set of facts, allegations and ingredients, this Court had earlier intervened and quashed the FIR dated 10.1.2014, Mr. A.K. Azad, learned counsel for the Respondent No. 2/Informant, submits that the facts and ingredients of offences in the FIRs dated 10.1.2014 and 6.8.2015 are different. At para 7 of the FIR dated 6.8.2015, imputations have been made that the petitioner had on earlier occasion obtained Road Challan and other documents in the name of the respondent's Company i.e. M.R. Trading Company by forging signature and preparing Rubber Stamp of the Company without consent and authority by introducing himself as Manager of the Company, for which an FIR had been lodged, registered as Jalukbari P.S. Case No. 924/2014. In reply, Mr. In reply, Mr. Chakraborty submits that the said allegation of forging signature for the purpose of obtaining Challan without consent, is also an allegation made in para 6 of the Complaint/Information dated 10.1.2014. As such, no distinct offence has been made against the petitioner. 13. Mr. D. Chakraborty has placed reliance on various case-laws on the doctrine of autrefois acquit. For the purpose of this case, this Court takes notice of the following judgments. 14. The scope and application of the doctrine of double jeopardy, Much provides foundation for the pleas of autrefois acquit and autrefois convict can be had from Section 300 Cr. P.C.; Section 26 of the General Clauses Act and Section 71 of the IPC. In Maqbool Hussain Vs. State of Bombay, AIR 1953 SC 325 , a Constitution Bench of the Apex Court held that the plea of autrefois acquit or autrefois convict demonstrates if a person had been previously acquitted or convicted on a charge for the same offence in which the person is now arraigned. The test is to ascertain whether the earlier offence and the offence now charged with have the same ingredients. It was further held that the 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. In Collector of Customs Vs. L.R. Melwani, AIR 1970 SC 1962, another Constitution Bench discussed the principle of issue estoppels, which is but a facet of the doctrine of autrefois acquit. Time and again the Apex Court have explained the said principle in a criminal trial observing that where on an earlier occasion a competent Court have decided on an issue of fact where finding is 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 and/or reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This principle, thus, is distinct from the doctrine of double jeopardy as it does not prevent the trial but only precludes, as above. This principle only relates to the admissibility of evidence. 15. This principle, thus, is distinct from the doctrine of double jeopardy as it does not prevent the trial but only precludes, as above. This principle only relates to the admissibility of evidence. 15. The law is well settled that to attract the provisions of Article 20(2) of the Constitution, that is, the doctrine of autrefois acquit or Section 300 Cr. P.C. or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case, must be the same and not different. The test is not on the identity of the allegations in the two offences but on the identity of the ingredients of the offences. As indicated earlier, the plea of autrefois acquit would only stand proved if it can be shown that the judgment of acquittal in the previous charge necessarily involves an acquittal from the latter charge. 16. Law of the land enunciates that a person must not be put in peril twice for the same offence. If it does, the same would amount to abuse of the process of law. In the instant case, a conjoint reading of the FIR dated 10.1.2014 and FIR dated 6.8.2015 abundantly shows that the ingredients of offences in both the First Information are same. In other words, even if there may be some overlapping of facts in both the cases but the ingredients of the offences are entirely same. On the same set of offences, the proceeding which was earlier instituted against the petitioner was adjudicated upon by this Court and the same was set aside and quashed. Thus, the subsequent FIR dated 6.8.2015 is barred, in as much as, on the principle of issue estoppel, it would serve no purpose to the prosecution when the acceptance/reception of evidence, pursuant to the FIFE dated 6.8.2015, cannot disturb the finding of fact already recorded by this Court on the same set of offences. To shy away from interfering with the FIR dated 6.8.2015 would only amount to putting the petitioner in peril twice for the same offence. 17. Unhesitatingly, this petition stands allowed and the First Information Report dated 6.8.2015, registered as Jalukbari Police Station Case No. 616/2015 under Sections 406, 420, 468, 471 of the IPC, so far it relates to the petitioner, is set aside and quashed. 17. Unhesitatingly, this petition stands allowed and the First Information Report dated 6.8.2015, registered as Jalukbari Police Station Case No. 616/2015 under Sections 406, 420, 468, 471 of the IPC, so far it relates to the petitioner, is set aside and quashed. Tire parties are left to bear their own costs.