Prajithkumar A.V. v. State of Kerala and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935** ## **Crl.MC.No. 3031 of 2007 ( )** **---------------------------AGAINST THE ORDER/JUDGMENT IN CC 314/2007 of CHIEF JUDICIAL MAGISTRATE COURT,KASARAGOD** **PETITIONER(S)/ACCUSED:** **--------------------------------------** ## **PRAJITHKUMAR A.V., S/O.KRISHNA PODUVAL,** **'RAJINI NIVAS', NEAR RAILWAY GATE, CHERUVATHOOR P.O., KASARAGOD.** ## **BY ADV. SRI.SURESH KUMAR KODOTH** **RESPONDENT(S)/COMPLAINANT/STATE & DEFACTO COMPLAINANT:** - **----------------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA, REPRESENTED BY** - **STATION HOUSE OFFICER, KASARGOD, POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. JOSHY THOMAS, DIVISIONAL MANAGER, SREE RAM TRANSPORT FINANCE CO. LTD., HASSEN ARCADE, THAVAKKARA, KANNUR.** **R1 BY PUBLIC PROSECUTOR SRI SREEJITH V S R2 BY ADVS. SRI.C.HARIKUMAR** **SRI.ARAVINDA KUMAR BABU T.K.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3031 of 2007 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURE** **ANNX.A1 COPY OF THE FIR REGISTERED BNY THE KASARGOD POLICE STATION.** **ANNX.A2 COPY OF THE SAID NOTICE DATED 2/12/2006.** **ANNX.A3 COPY OF THE REPLY NOTICE DATED 16.12.2006.** **ANNX.A4 COPY OF THE SAID COMPLAINT DATED 09.12.2006 BEFORE THECHIEF JUDICIAL MAGISTRATE AS CC NOP.101/2007.** **ANNX.A5 COPY OF THE SUMMONS.** **ANNX.A6 COPY OF THE CHARGE SHEET FILED BY THE INVESTIGATING OFFICER.** ## **RESPONDENT'S ANNEXURE: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **LSN** **C.R** ## **K.RAMAKRISHNAN, J ----------------Crl.M.C.NO.3031 OF 2007 ------------------------------Dated this the 09[th ] day of September, 2013** ## **O R D E R** This is an application filed by the petitioner, who is the accused in C.C No.314/2007 on the file of the Chief Judicial Magistrate Court, Kasargod to quash the proceedings under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C'). 2. It is alleged in the petition that on the basis of Annexure-4 complaint filed by the second respondent, Kasargod Police has registered Annexure-1 First Information Report as Crime No.845/2006 against the petitioner under Section 408 and 420 of Indian Penal Code and thereafter, after investigation they filed in Annexure-6 final report on the basis of which the Chief Judicial Magistrate has taken cognizance of the case C.C. No.314/07 against the petitioner and Annexure-5 summons was issued to him. It is also alleged in the petition that earlier the second respondent issued Crl.M.C.NO.3031 OF 2007 2 Annexure-2 notice under Section 138 of Negotiable Instrument Act (hereinafter referred to as “the Act”) calling upon the petitioner to pay the amount of Rs.7,00,000/- and Annexure-3 reply was sent and on the basis of Annexure-2 notice, a complaint under Section 138 of the Act was also filed. In that notice, there is nothing mentioned about the commission of offence now alleged. Further, the allegations are not sufficient to attract either the offence under Section 408 and 420 of Indian Penal Code as well. So, the proceedings in C.C No.314/07 on the file of the Chief Judicial Magistrate, Kasargod, is liable to be quashed. Hence the petition. 3. Heard the counsel for the petitioner and second respondent and the learned Public Prosecutor. 4. Counsel for the petitioner submitted that two complaints on the basis of the same transaction is not maintainable and that will amount to double jeopardy under Section 300(1) of the Code and Article 20(2) of the Constitution of India. So, according to him the proceedings in C.C No.314/07 on the file of the Chief Judicial Magistrate, Kasargod is liable to be quashed. Crl.M.C.NO.3031 OF 2007 3 5. On the other hand, the counsel for the second respondent submitted that offence mentioned in two cases are different and distinct. The second respondent is entitled to file two complaints under two different statutes, if the offences are distinct and separate. The learned counsel has relied on the decision reported in **2012(2)CIJ 694, ((2012)7 SCC 691) Sangeetaben Mahendrabhai Patel v. State of Gujarat and Another,** in support of his case. The learned Public Prosecutor also supported the submission made by the counsel for the second respondent. 6. The question that arose the consideration in this case is whether the second respondent is entitled to initiate two separate proceedings in respect of the same transaction one under Section 138 of the Act and also under Section 420 and 408 of Indian Penal Code. This question has been considered by the Honourable Supreme Court in the decision reported in **Sangeetaben Mahendrabhai Patel's** case (supra) and held that there is no bar for the same. In the decision has been observed as follows:- Crl.M.C.NO.3031 OF 2007 4 “ Appellant was prosecuted for an offence under Sec.138 of the N.I Act for the dishonour of the cheque issued by him and acquitted by the appellate Court against which the complainant had preferred appeal which was pending before the High Court. At this stage, complainant had lodged a police complaint for cheating on which FIR was registered. Appellant sought to quash the FIR by arguing that when he was already prosecuted for the very same act, registration of FIR for that act at a later stage amounted to double jeopardy which was resisted by the respondent. When the High Court had dismissed the plea of the appellant, he had preferred appeal. Parties stood by their stands. Held, principle of double jeopardy would be applicable only when the ingredients of both the offences were substantially same and the acquittal in one would necessarily end in the acquittal of the other. As the element of presumption in the cheque dishonour complaint was not available in cheating, punishment in both offences were different and other factors were also different in both offences, filing of complaint earlier for cheque dishonour would not bar the registration of FIR for cheating.“ The facts of that case also similar to the facts of this case. That was also the case where a subsequent crime was registered for the offence under Section 420 of Indian Penal Code, after a case is filed by the complainant under Section 138 of the Act was ended in acquittal and an appeal was pending before the High Court as in this case. In that case the Honourable Supreme Court observed that the ingredients of both offence are different though they Crl.M.C.NO.3031 OF 2007 5 arise out of the same transaction and the offences are also distinct and separate. In such cases, there is no bar for proceedings against the same accused under different statutes for different offences enumerated under both the statues. 7. Further on going through the complaint also, it is seen that the vehicle which was entrusted was misappropriated by him without effecting payment and the cheque issued was dishonored and it was alleged that this was done with the dishonest intention to cheat the complainant and to cause unlawful loss to him. At this stage, this court need only to consider whether the allegations are prima facie sufficient to issue process and not whether the allegation are sufficient to end conviction or not and it is not a matter to be considered by this court at this stage and that has to be considered by the trial court on the basis of the evidence. If the court is satisfied that the matter has to be decided on the basis of the evidence then, this court cannot invoke the power under Section 482 of the Code and quash the proceedings at the initial stage itself. In view of the discussions made above Crl.M.C.NO.3031 OF 2007 6 and in view of the dictum laid on the decision cited in **Sangeetaben Mahendrabhai Patel's** case (supra), the submission of the counsel for the petitioner that the proceedings will have to be quashed as it will amount to double jeopardy cannot be accepted and the same is liable to be rejected and the petitioner is not entitled to get the relief claimed in the petition and the petition is liable to be dismissed. In the result, the petition is dismissed. But it is made clear that it is not be a bar for the petitioner to raise all the contentions raised by him in the petition before the Trial court and the Trial court is at liberty to consider the evidence on record and the submissions made by the counsel for the accused before that court and dispose of the case on merits untrammeled by any observations made in this judgment. ## Sd/- **K.RAMAKRISHNAN, Judge** True Copy P.A to Judge lsn