TaxTMI 
TaxTMI 
2022 (8) TMI 695
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.... Magistrate Court No. III, Coimbatore. 3. The brief facts necessary for the instant appeal are that the appellant herein was working as a Civil Engineer in Saudi Arabia. On his return back to India in the year 2011, he purchased a site from respondent no.2 who is the father of respondent no.1 in Coimbatore. Apart from this, the respondents owned 7 other house sites in total in V.C.K. Layout, Trichy Road, Coimbatore City, which all were mortgaged to Tamil Nadu Industrial Investment Corporation, way back from 12.10.2006. Appellant contended that the respondents approached and asked him to invest money for the development of the land of the said 7 sites and assured that profit shall be divided amongst the appellant and respondents. Pursuant to it a profitsharing agreement was executed between the parties. The appellant made the investment of a sum of Rs.62,32,754/, but neither profit was shared nor any piece of land was given to the appellant. Consequently, the appellant asked to repay the amount. Under guise of assurance of repayment by respondent no.1, the appellant did not lodge any criminal prosecution as per his request. The respondent no.1 handed over a cheque dated 09.09.2015 ....
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....he present proceedings for offences under sections 406, 420, 120B and 34 of IPC would amount to abuse of process of the Court. The said order passed by the High Court is assailed by the appellant in the instant appeal. 6. Learned senior counsel Mr. S. Nagamuthu contends that in the facts of the present case the plea of double jeopardy or bar of Section 300(1) of Cr.P.C. would attract only when the earlier offence and the later offence is same or have same ingredients. The identity of the allegations on fact is not relevant, in fact, the identity of the ingredients of the offence is relevant. The plea taken by respondent no.1 to 4 that a person who is previously acquitted cannot be tried for the same offence subsequently, shall apply only when it is shown that acquittal for the previous charge would lead to acquittal in the subsequent charge. In an offence under Section 138 of the NI Act, requirement to prove mens rea is not necessary although for an offence under Section 420, fraudulent and dishonest intention i.e. mens rea is relevant to prove. In support of the said contention, reliance has been placed on the judgment of Sangeetaben Mahendrabhai Patel v. State of Gujarat and Anr....
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....ion on the facts of this case. 36. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao [(2011) 2 SCC 703 : (2011) 1 SCC (Cri) 882 : (2011) 1 SCC (Civ) 547] is concerned. It has been held therein that once the conviction under Section 138 of the NI Act has been recorded, the question of trying the same person under Section 420 IPC or any other provisions of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) CrPC. 37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI 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 of the NI 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. 38. In the case under the NI Act, th....
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....noured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got a loan of Rs 50,00,000 from the complainant Company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations and how the complainant Company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June 1996 and had represented that they and Shalini Suri, Shama Suri (Appellant 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counteraffidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company in parting with the amount of Rs 50,00,000. As normally understood, the business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. A finance company also advances shortterm l....
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....fences is liable to be quashed, which we do. 15. The appeal is allowed and the judgment of the High Court dated 6-5-1999 is set aside and prosecution of the appellants under Sections 406/420 IPC in Criminal Case No. 674 of 1997 (now Criminal Case No. 6054 of 1998) and pending in the Court of Chief Judicial Magistrate, Ghaziabad is quashed." 10. Similarly in the case of Kolla Veera Raghav Rao (supra) this Court reaffirmed the view taken in the said case. The relevant paragraphs are reproduced as thus: "4. It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) CrPC. Article 20(2) states: "20. (2) No person shall be prosecuted and punished for the same offence more than once." On the other hand, Section 300(1) CrPC states: "300. Person once convicted or acquitted not to be tried for same offence.-(1) 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 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 ....
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....e facts, therefore, the prosecution under Section 420 of the IPC is barred by Section 300(1) of Cr.P.C and accordingly liable to be quashed. It is to observe that in the case of Sangeetaben Mahendrabhai Patel (supra) the judgments of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) have been referred but distinguished on the ground that it was not raised and decided that ingredients of both offences were not same, and the bar of Section 300(1) of Cr.P.C. would not attract. It is relevant to note here that the judgments cited by both the parties are rendered by benches having the strength of two Judges. In our considered view, the bench of this Court in the case of Sangeetaben Mahendrabhai Patel (supra) followed in M/s. V.S. Reddy and Sons (supra) has taken a different view from the previous judgments of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) rendered by the bench of the same strength. The view taken in both the cases are conflicting to each other. Needles to observe that it is a trite law, if any issue is decided in a previous judgment by a bench of the same strength, conflicting view in the subsequent judgment should not be rendered on the pretext that th....