Criminal Law
Mode of Citation- ILC-2017-SC-CRL-....
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Criminal Law
Mode of Citation- ILC-2017-SC-CRL-....
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ILC-2012-SC-CRL-Apr-5

Sangeetaben Mahendrabhai Patel Vs. State of Gujarat

Head Note

The Code of Criminal Procedure, 1973  - Section 300 , Constitution of India, 1950  - Article 20 , Indian Penal Code,1860  - Section 71

General Clause Act, 1897 - Section 26 - Double jeopardy - In order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Criminal Procedure Code or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different - Further held - (i) The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. (ii) Motive for committing offence cannot be termed as ingredients of offences to determine the issue. (iii) The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge - 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/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence.

The Code of Criminal Procedure, 1973  - Section 300 , The Negotiable Instruments Act, 1881  - Section 138 , Indian Penal Code,1860  - Section 420 , Section 406

Double jeopardy - Dishonour of Cheque - Prosecution can be launched against the accused both under Section 138 of Negotiable Instruments Act as also under Section 420 IPC if offence under Section 420 IPC was made out - It is not double jeopardy - Ingredients of both the offences are not the same - Doctrine of double jeopardy explained.

The Negotiable Instruments Act, 1881  - Section 138 , The Code of Criminal Procedure, 1973  - Section 357

Dishonour of Cheque - Conviction of accused - If a fine is imposed, it is to be adjusted to meet the legally enforceable liability.

The Negotiable Instruments Act, 1881  - Section 138

Mens rea - i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved.

The Negotiable Instruments Act, 1881  - Section 139 , Section 138

Dishonour of Cheque - 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.

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