New Delhi: The Supreme Court on Thursday referred to a larger bench the question whether an accused can be tried separately under the Negotiable Instruments (NI) Act and the IPC for the same set of allegations, notwithstanding prior conviction or acquittal.
The apex court also referred the issue whether the bar of section 300 (1) of the Code of Criminal Procedure (CrPC) would be applicable in such trial.
According to CrPC section 300, a person once convicted or acquitted is not to be tried for same offence.
A bench of Justices S A Nazeer and J K Maheshwari, while referring to some previous judgements delivered by the apex court which were cited by the parties before it, observed that the views taken in these cases were “conflicting”.
The top court delivered its verdict on an appeal challenging the December 2018 order of the Madras High Court which had quashed the proceedings against four persons under various sections of the Indian Penal Code (IPC), including that of cheating and criminal conspiracy, pending before a magisterial court in Coimbatore.
The high court had quashed the proceedings while taking into consideration the fact that proceedings under section 138 of the Negotiable Instruments Act, which deals with dishonour of cheque for insufficiency of funds, pertaining to the same cause of action and on the same facts and grounds were pending, prior to the registration of proceedings for the alleged offences under the IPC.
In its verdict, the apex court noted the judgement cited by the appellant before it had held that the requirement to prove an offence under the NI Act and an offence under the IPC is different and therefore, the subsequent cases are not barred by any statutory provisions.
It said the judgements cited by the respondents hold that as per section 300(1) of the CrPC, no one can be tried and convicted for the same offence or even for a different offence on the same facts.
The apex court noted that judgements cited by both the parties were rendered by benches having the strength of two judges.
“Needles to observe that it is a trite law, if any issue is decided in a previous judgement by a bench of the same strength, conflicting view in the subsequent judgment should not be rendered on the pretext that the issue has not been raised or considered in the previous judgement,” the bench said.
Referring to some previous verdicts, the top court said it was observed that judicial decorum demands that if judgements passed by two benches of equal strength are conflicting, the issue of law involved must be referred to a larger bench as the same is desirable to avoid confusion and maintain consistency of law.
“In our view, the aforesaid judgments cited by the respective parties are conflicting, however, to avoid any further confusion and to maintain consistency, we deem it appropriate to refer this issue for decision by the larger bench to answer the following questions…,” it said.
One of the questions referred to the larger bench reads, “Whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of section 300(1) CrPC would attract for such trial?”
The bench asked the apex court registry to place the file before the Chief Justice of India for orders.
The appellant, who was working as a civil engineer in Saudi Arabia, had returned to India in 2011.
He contended that the respondents had approached and asked him to invest money for development of land at seven sites and he was assured that profit shall be divided among them.
The appellant claimed that a profit sharing agreement was executed between them and he made an investment of Rs 62.32 lakh but neither profit was shared nor any piece of land was given to him.
He said later, one of the respondents handed over a cheque of Rs 87 lakh in lieu of repayment of principal sum and interest but the same was dishonoured on account of insufficient funds.
The appellant then lodged a complaint under section 138 of the NI Act in December 2015.
Prior to initiating proceedings under section 138 of the NI Act, he had lodged a separate complaint before the judicial magistrate and later, the police was directed to register a case against the four persons.
After investigation, a charge sheet was filed before the court for the alleged offences under various sections of the IPC.
Later, the matter came to the high court which quashed the proceedings for the alleged offences under the IPC.