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Madhya Pradesh High Court · body

2018 DIGILAW 743 (MP)

AJIT KUMAR JAIN v. STATE OF M. P.

2018-08-29

ANAND PATHAK

body2018
JUDGMENT : 1. Shri Anil Kumar Mishra and Shri F. A. Shah, learned counsel for petitioners. Shri Kuldeep Singh, learned Public Prosecutor for respondent No. 1-State. Shri Anil Sharma, learned counsel for respondent No. 2- complainant. 2. Heard on admission. The present petition under section 482 of Criminal Procedure Code is being preferred by the petitioners for quashment of FIR registered at Police Station Jhansi Road, Gwalior vide Crime No. 321/2018 for the offence under sections 420, 406, 506, 120-B of Indian Penal Code and the investigation proceeded on the basis of registration of FIR. 3. Precisely stated facts of the case (and prosecution story) are that a written application was submitted by respondent No. 2/ complainant on 4-8-2018 at Police Station Jhansi Road, Gwalior with the allegations that he lent some amount by way of hundi transaction to petitioner No. 1 under the knowledge of petitioner No. 2, part of which was repaid by the petitioners and as of now Rs. 41,50,000/- is to be paid by the petitioner No. 1. 4. Since petitioner No. 1 started dilly dallying the matter and was not prompt in repayment therefore, social involvement was sought by respondent No. 2 resulted into issuance of cheque for payment of Rs. 28,00,000/-, which got dishonoured for which private complaint under section 138 of Negotiable Instrument Act, 1881 (for short “NI Act”) has been filed at the instance of respondent No. 2. Now for remaining amount, respondent No. 2 tried to persuade the petitioners by way of oral request as well as issuance of legal notice dated 10-2-2018 as well as 22-5-2018 but to no avail therefore, police complaint was filed on which FIR has been registered. 5. According to counsel appearing for the petitioners, once respondent No. 2 has resorted to proceeding under section 138 of Negotiable Instruments Act then following the principle of Double Jeopardy as enshrined under Article 20(2) of the Constitution of India as well as under section 300 of Criminal Procedure Code, petitioners cannot be tried for the same offence or default for which they are already tried. It is further submitted that section 31 of Reserve Bank of India Act bars the hundi transaction therefore, any transaction which is void ab initio, cannot be asserted by way of prosecution. It is further submitted that section 31 of Reserve Bank of India Act bars the hundi transaction therefore, any transaction which is void ab initio, cannot be asserted by way of prosecution. Learned counsel also refers the judgment rendered by the Hon’ble Apex Court in the case of Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 and submits that all the offences of the FIR are of such nature where maximum punishment can be of seven years and below therefore, it is not required for the police to arrest the petitioners and petitioners can be interrogated without being arrested. 6. Learned counsel for the petitioners also inform that the anticipatory bail under section 438 of Criminal Procedure Code filed at the instance of petitioner No. 2 got rejected by the trial Court but the same has not been preferred before the High Court and petitioner No. 1 has not preferred any anticipatory bail. He prayed for quashment of FIR. Petitioners relied upon the judgments of the Hon’ble Apex Court in the case of G. Sagar Suri and another vs. State of U.P. and others, 2000 (2) SCC 636 and Kola Veera Raghav Rao vs. Gorantla Venkateswara Rao and anr., (2011) 2 SCC 703 while asserting for quashment of FIR. 7. Per contra, learned counsel for the respondents/ State opposed the prayer made by the petitioners and on the basis of case diary submits that the investigation is at initial stage. 8. Learned counsel for the private respondent try to match the vehemence of the petitioners and submits that it is too early for the petitioners to approach this Court under section 482 of Criminal Procedure Code specially when anticipatory bail of petitioner No. 2 was rejected on 8-8-2018 therefore, petitioners instead of availing the remedy under section 438 of Criminal Procedure Code are trying to assert by way of section 482 of Criminal Procedure Code It is further submitted that scope of Negotiable Instruments Act and scope of offence under Indian Penal Code are different. It is further submitted that petitioner No. 1 Ajit Kumar Jain borrowed the money in individual capacity as well as in proprietor capacity and he is also the Karta of HUF (Gannalal Dhannalal Jain) and having the separate pen number for this and therefore, he was the person who borrowed the money from the parties but it appears that petitioner No. 1 borrowed Rs. 41,50,000/- from respondent No. 2 and his income tax statements indicate that he transferred the money and property in favour of his grand son Aniket Jain and with common intention of cheating, hatched the criminal conspiracy with petitioner No. 2 and misrepresented the alleged severed relationship interse through local newspaper just to siphon off the money. He referred the judgment of the Hon’ble Apex Court in the case of Vijayander Kumar vs. State of Rajasthan, (2014) 3 SCC 389 and submits that because a civil remedy to the informant and complainant is available, itself cannot be a ground to quash the proceedings because a real testis is whether the allegations in the complaint discloses the criminal offence or not. He also relied upon the judgment of the Hon’ble Apex Court in the case of Shri Mahavir Prashad Gupta and anr. vs. State of National Capital and others, 2000 (8) SCC 115 . He prayed for dismissal of the writ petition. Heard the learned counsel for the parties at length and perused the case diary. 9. From perusal of the case diary, it appears that FIR has been registered on dated 4-8-2018 for the alleged offences under sections 420, 406, 506, 120-B of Indian Penal Code. The main allegations appears to be to receive the amount from respondent No. 2 to siphon off the money with intention to receive wrongful gain and with intention to cheat the respondents the amount has been siphoned off in the name of some other person (grand son of petitioner No. 1) by way of gift. Therefore, criminal breach of trust and cheating and criminal conspiracy have been alleged. 10. The main ground of attack over the FIR at this stage is principle of Double of Jeopardy try to be asserted by counsel for the petitioner. Therefore, criminal breach of trust and cheating and criminal conspiracy have been alleged. 10. The main ground of attack over the FIR at this stage is principle of Double of Jeopardy try to be asserted by counsel for the petitioner. Although proceedings under section 138 of Act of 1881 may be pending against the petitioners but so far as those proceedings are concerned they are in respect of dishonour of cheque issued by the petitioner for discharging the debt or other liability but here the ingredients of offence involving mens rea has been alleged. Therefore, plea of Double Jeopardy as enshrined under Article 20(2) of the Constitution of India or encoded under section 300 of Criminal Procedure Code are not attracted. Despite the fact that both the provisions employ the expression “Same Offence”, the said expression is defined by the Hon’ble Apex Court in the case of Sangeetaben Mahendrabhai Patel vs. State of Gujarat and another, (2012) 7 SCC 621 , which reads as under :— “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 punished twice 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 arraingned. 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 Hon’ble Apex Court in the case of Sangeetaben Mahendrabhai Patel (supra) has further dealt this dictum and expression is as under:- “35. 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 Hon’ble Apex Court in the case of Sangeetaben Mahendrabhai Patel (supra) has further dealt this dictum and expression is as under:- “35. The learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri vs. State of U.P. Wherein during the pendency of the proceedings under section 138 of the Negotiable Instruments Act, prosecution under sections 406/420, Indian Penal Code had been launched. This Court quashed the criminal proceedings under sections 406/420, Indian Penal Code, observing that it would amount to the abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raied nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case. 36. Same remained the position s o far as the judgment in Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao is conerned. It has been held therein that once the conviction under section 138 of the Negotiable Instruments Act has been recorded, the question of trying the same person under section 420, Indian Penal Code or any other provisions of Indian Penal Code or any other statute is not permissible being hit by Article 20(2) of the Constitution and section 300(1), Criminal Procedure Code. 37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of section 138 of the Negotiable Instruments 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, Indian Penal Code. In the prosecution under section 138 of the Negotiable Instruments 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, Indian Penal Code involved herein, the issue of mens rea may be relevant. The offence punishable under section 420, Indian Penal Code is a serious one as the sentence of 7 years can be imposed. 38. However, in the case under, Indian Penal Code involved herein, the issue of mens rea may be relevant. The offence punishable under section 420, Indian Penal Code is a serious one as the sentence of 7 years can be imposed. 38. In the case under the Negotiable Instruments 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, Indian Penal Code. In the case under the Negotiable Instruments Act, if a fine is imposed, it is to be adjudicated to meet the legally enforceable liability. There cannot be such a requirement in the offences under, Indian Penal Code. The case under the Negotiable Instruments Act can only be initiated by filing a complaint. However, in a case under, Indian Penal Code such a condition is not necessary. ” 11. Similarly, one more fact which goes against the present petitioner is availment of section 438 of Criminal Procedure Code at the instance of petitioner No. 2. Petitioners cannot be allowed to nullify the effect of order under section 438 of Criminal Procedure Code passed against petitioner No. 2. 12. The Hon’ble Apex Court in the case of State of Telangana vs. Habib Abdullah Jeelani and others, (2017) 2 SCC 779 has deprecated the practice of inference under section 482 and 483 of Criminal Procedure Code while using inherent power in a matter of quashment of FIR. Exercise of judicial restrain was mandated by the Apex Court while entertaining petitions under section 482 of Criminal Procedure Code 13. Besides that, one more aspect, is infant stage of investigation because investigation is yet to be unfolded. From perusal of the case diary, it appears that interrogation/ statements of the petitioners are yet to be taken therefore, it would be too early to jump to the conclusion about role of the petitioners and since the plea of double jeopardy was discarded in the preceding paragraphs therefore, scope of interference on merits constricts to the detriment of petitioners. 14. So far as the assertion of petitioners on the basis of judgment referred by the Hon’ble Apex Court in the case of Arnesh Kumar (supra) is concerned, it is for the investigating officer to decide and take the call. 14. So far as the assertion of petitioners on the basis of judgment referred by the Hon’ble Apex Court in the case of Arnesh Kumar (supra) is concerned, it is for the investigating officer to decide and take the call. He is free to take appropriate decision as per law. No such directions can be given to the authority at this juncture. In the cumulative analysis and considered opinion of this Court, scope of interference at this juncture regarding quashment of FIR does not exist. Scope of section 482 of Criminal Procedure Code is to be used sparingly in those matters where, no case is made out at the threshold. Thus, admission declined and petition is hereby dismissed.