SANGEETABEN MAHENDRABHAI PATELversusSTATE OF GUJARAT AND ANR.

                   [2012] 3 S.C.R. 1155


        SANGEETABEN MAHENDRABHAI PATEL                         A
                             V.
             STATE OF GUJARAT AND ANR.
            (Criminal Appeal No. 645 of 2012)

                      APRIL 23, 2012
                                                               B
[DR. B.S. CHAUHAN & JAGDISH SINGH KHEHAR, JJ.]

      Code of Criminal Procedure, 1973: s.300 - Applicability
of - Rule of double jeopardy - Respondent no. 2 filed
complaint against appellant u/s. 138 NI Act - Appellant tried C
for the said offence and the case sub judice before High Court
- Subsequent case filed by respondent no. 2 against
appellant ulss. 4061420 rlw s. 114 /PC - Plea of appellant that
subsequent criminal case involving provisions of /PC was
barred by s.300 Cr.P.C. and s.26 of General Clauses Act, D
1897 as appellant was already dealt with/tried uls. 138 NI Act
- Held: In the prosecution uls.138 N.I. 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 /PC, the issue of mens rea may be relevant - In the E
case under N. I. Act, if a fine is imposed, it is to be adjusted
to meet the legally enforceable liability - There is no such
requirement in the offences under /PC - The case under N.I.
Act can only be initiated by filing a complaint - However, in
a case under the /PC such a condition is not necessary - F
There may be some overlapping of facts in both the cases
but ingredients of offences are entirely different - Thus, the
subsequent case is not barred by any of the said statutory
provisions - Negotiable Instruments Act, 1881 - s. 138 -
Penal Code, 1860 - General Clauses Act, 1897 - s.26 - G
ss.4061420 rlw s. 114.

    Doctrine/Principle: Double jeopardy - Held: The rule
against double jeopardy provides foundation for the pleas of

                           1155                                H
    1156    SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A autrefois acquit and autrefois convict - The manifestation of
  this rule is to be found contained in s. 300 Cr. P. C; s. 26 of the
  General Clauses Act; and s. 71 /PC - In order to attract the
  provisions of Article 20(2) of the Constitution i.e. doctrine of
  autrefois acquit or s.300 Cr.P.C. ors. 71 IPC or s.26 of General
B Clauses Act, ingredients of the offences in the earlier case
  as well as in the latter case must be the same and not
  different - The test to ascertain whether the two offences are
  the same is not the identity of the allegations but the identity
  of the ingredients of the offence - Motive for committing
c offence cannot be termed as ingredients of offences to
  determine the issue - 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.
D      Respondent No. 2 filed a complaint under Section
  138 of N.I. Act against the appellant on the ground that
  the appellant had taken loan of Rs. 20 lakhs from
  respondent no.2 and in order to meet the said liability, the
  appellant issued cheque which on presentation got
E dishonoured. Subsequently respondent no. 2 filed an FIR
  under Sections 406/420 read with Section 114, IPC for
  committing the offence of criminal breach of trust,
  cheating and abetment etc. The trial court convicted the
  appellant under Section 138 of N.I. Act. However, the
F District Court ordered his acquittal. Respondent no. 2
  filed appeal before the High Court which was pending.
  The appellant filed an application under Section 482
  Cr.P.C., seeking quashing of the criminal case pending
  before the Magistrate for committing the offence of
G criminal breach of trust, cheating and abetment etc. on
  the grounds, inter-alia that it amounted to abuse of
  process of law. The High Court dismissed the said
  application. The instant appeal was filed challenging the
  order of the High Court.
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1157
           OF GUJARAT AND ANR.

    Dismissing the appeal, the Court                        A

      HELD: 1. The rule against double jeopardy provides
foundation for the pleas of autrefois acquit and autrefois
convict. The manifestation of this rule is to be found
contained in Section 300 Cr.P.C; Section 26 of the
                                                             8
General Clauses Act; and Section 71 l.P.C. The law is well
settled that in order to attract the provisions of Article
20(2) of the Constitution i.e. doctrine of autrefois acquit
or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of
General Clauses Act, ingredients of the offences in the C
earlier case as well as in the latter case must be the same
and not different. The test to ascertain whether the two
offences are the same is not the identity of the allegations
but the identity of the ingredients of the offence. Motive
for committing offence cannot be termed as ingredients
of offences to determine the issue. The plea of autrefois D
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. [Paras 5, 24] [1163-G;
1174-F-H; 1175-A]
                                                             E
      Maqbool Hussain v. State of Bombay AIR 1953 SC 325;
S.A. Venkataraman v. Union of India & Anr. AIR 1954 SC
375; Om Prakash Gupta v. State of U.P. AIR 1957 SC 458;
State of Madhya Pradesh v. Veereshwar Rao Agnihotri AIR
1957 SC 592; Leo Roy Frey v. Superintendent, District Jail, F
Amritsar & Anr. AIR 1958 SC 119; The State of Bombay v.
S. L. Apte and Anr. AIR 1961 SC 578; Rosh an Lal & Ors. v.
State of Punjab AIR 1965 SC 1413; Kharkan & Ors. v. State
of U.P. AIR 1965 SC 83; Bhagwan Swarup Lal Bishan Lal v.
The State of Maharashtra AIR 1965 SC 682; Sardul Singh G
Caveeshar v. State of Bombay AIR 1957 SC 747; The State
of A.P. v. Kokkiligada Meeraiah & Anr. AIR 1970 SC 771; The
Assistant Collector of the Customs, Bombay & Anr. v. L. R.
Me/wani & Anr. AIR 1970 SC 962; V.K. Agarwal v. Vasantraj
Bhagwanji Bhatia & Ors. AIR 1988 SC 1106 Mis. P. V.
                                                            H
   1158    SUPREME COURT REPORTS              [2012] 3 S.C.R.


A Mohammad Barmay Sons v. Director of Enforcement AIR
  1993 SC 1188; State of Bihar v. Murad Ali Khan & Ors. AIR
  1989 SC 1 ; Union of India etc. etc. v. K. V. Jankiraman etc.
  etc. AIR 1991 SC 2010; State of Tamil Nadu v. Thiru K.S.
  Murugesan & Ors. (1995) 3 SCC 273; State of Punjab & Anr.
B v. Dalbir Singh & Ors. (2001) 9 SCC 212; A.A. Mui/a & Ors.
  v. State of Maharashtra & Anr. AIR 1997 SC 1441; Union of
  India & Ors. v. Sunil Kumar Sarkar AIR 2001 SC 1092; R.
  Viswan & Ors. v. Union of India & Ors. AIR 1983 SC 658;
  Union of India & Anr. v. P.O. Yadav (2002) 1 SCC 405:2001
c (4) Suppl. SCR 209; State of Rajasthan v. Hat Singh & Ors.
  AIR 2003 SC 791; State of Haryana v. Ba/want Singh AIR
  2003 SC 1253; Hira Lal Hari Lal Bhagwati v. C.B.I. New Delhi
  AIR 2003 SC 2545; Kol/a Veera Raghav Rao v. Garant/a
  Venkateswara Rao & Anr. (2011) 2 SCC 703: 2011 (2) SCR
  364 - relied on.
0
       2. Where an issue of fact has been tried by a
  competent court on an earlier occasion and a finding has
  been recorded in favour of the accused, such a finding
  would constitute an estoppel or res judicata against the
E 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. This rule is distinct
F from the doctrine of double jeopardy as it does not
  prevent the trial of any offence but only precludes the
  evidence being led to prove a fact in issue as regards
  which evidence has already been led and a specific
  finding has been recorded at an earlier criminal trial. Thus,
G the rule relates only to the admissibility of evidence which
  is designed to upset a finding of fact recorded by a
  competent court in a previous trial on a factual issue.
  [Para 15) (1171-D-F]

      Pritam Singh & Anr. v. The State of Punjab AIR 1956 SC
H 415; Manipur Administration, Manipur v. Thokchom Bira
 SANGEETABEN MAHENDRABHAI PATEL v. STATE1159
           OF GUJARAT AND ANR.

Singh AIR 1965 SC 87; Workmen of the Gujarat Electricity       A
Board, Baroda v. Gujarat Electricity Board, Baroda AIR 1970
SC 87; Bhanu Kumar Jain v. Archana Kumar & Anr. AIR
2005 SC 626 - relied on.

     3. Admittedly, the appellant had been tried earlier for
                                                               8
the offences punishable under the provisions of Section
138 N.I. 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 N.I. Act, the mens rea i.e. fraudulent
or dishonest intention at the time of issuance of cheque       C
is not required to be proved. However, in the case under
IPC involved, 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. In the
case under N.I. Act, there is a legal presumption that the     D
cheque had been issued for discharging the antecedent
liability and that presumption can be rebutted only by the
person who draws the ch~que. Such a requirement is not
there in the offences under IPC. In the case under N.1.
Act, if a fine is imposed, it is to be adjusted to meet the    E
legally enforceable liability. There cannot be such a
requirement in the offences under IPC. The case under
N.I. Act can only be initiated by filing a complaint.
However, in a case under the IPC such a condition is not
necessary. There may be some overlapping of facts in           F
both the cases but ingredients of offences are entirely
different. Thus, the subsequent case is not barred by any
of the said statutory provisions. [Paras 27-28) [1176-G-H;
1177-A-D]
                                                               G
     Radheshyam Kejriwal v. State of West Bengal & Anr.
(2011) 3 SCC 581: 2011 (4) SCR 889; G. Sagar Suri & Anr.
v. State of U.P. & Ors. (2000) 2 SCC 636: 2000 (1) SCR 417
- held inapplicable.
                                                             . H
    1160   SUPREME COURT REPORTS             [2012] 3 S.C.R.


A                      Case Law Reference:
       AIR 1953 SC 325          relied on          Para 6
       AIR 1954 SC 375          relied on          Para 7
       AIR 1957 SC 458          relied on          Para 8
B
       AIR 1957 SC 592          relied on          Para 8
       AIR 1958 SC 119          relied on          Para 9
       AIR 1961 SC 578          relied on          Para 10
c
       AIR 1965 SC 1413         relied on          Para 11
       AIR 1965 SC 83           relied on          Para 12
       AIR 1965 SC 682          relied on          Para 13
D      AIR 1957 SC 747          relied on          Para 14
       AIR 1970 SC 771          relied on          Para 15
       AIR 1970 SC 962          relied on          Para 15

E      AIR 1956 SC 415          relied on          Para 15
       AIR 1965 SC 87           relied on          Para 15
       AIR 1970 SC 87           relied on          Para 15
       AIR 2005 SC 626          relied on          Para 15
F
       AIR 1988 SC 1106        relied on           Para 16
       AIR 1993 SC 1188         relied on          Para 17
       AIR 1989 SC 1           relied on           Para 17
G
       AIR 1991 SC 2010         relied on          Para 17
       (1995) 3SCC 273         relied on           Para 17
       (2001) 9 sec 212        relied on           Para 17
H      AIR 1997 SC 1441        relied on           Para 18
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1161
           OF GUJARAT AND ANR.

     AIR 2001 SC 1092             relied on           Para 19      A
     AIR 1983 SC 658              relied on           Para 19
     2001 (4) Suppl. SCR 209 relied on                Para 20
     AIR 2003 SC 791             relied on            Para 21
                                                                   B
     AIR 2003 SC 1253            relied on            Para 22
     AIR 2003 SC 2545            relied on            Para 23
     2011 (4) SCR 889            held inapplicable Para 25
                                                                   c
     2000 (1) SCR 417            held inapplicable Para 26

     2011 (2) SCR 364            relied on            Para 26

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 645 of 2012.                                                   D
    From the Judgment & Order dated 18.08.2011 of the High
Court of Gujarat at Ahmedabad in Criminal Misc. Application
No. 7807 of 2006.

    Abhishek Singh, Samir Ali Khan for the Appellant.              E

     Rakesh Uttamchandra Upadhyay, Aarti Upadhyay, R.
Baliya, Hemantika Wahi, S. Panda for the Respondents.

    The Judgment of the Court was delivered by
                                                                   F
     DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the impugned judgment and order dated
18.8.2011 passed by the High Court of Gujarat at Ahmedabad
in Criminal Misc. Application No. 7807 of 2006, by which the
High Court has dismissed the application filed by the present      G
appellant under Section 482 of Criminal Procedure Code, 1973
(hereinafter referred as 'Cr.P.C.') for quashing the I.CR No. 18
of 2004 and Criminal Case No. 5 of 2004 pending before the
Chief Judicial Magistrate, Patan, on the plea of double jeopardy
for the reason that the appellant has already been tried and       H
    1162     SUPREME COURT REPORTS                  [2012] 3 S.C.R


A   dealt with under the provisions of Section 138 of Negotiable
    Instruments Act, 1881 (hereinafter referred as 'N.I. Act') for the
    same offence.

          2. Facts and circumstances giving rise to this appeal are
B that:

        A. Respondent No. 2 filed a complaint dated 22.10.2003
  i.e. Criminal Case No. 1334 of 2003 under Section 138 of N.I.
  Act on the ground that the appellant had taken hypothecation
  loan of Rs. 20 lakhs and had not repaid the same. In order to
C meet the said liability, the appellant issued cheque bearing no.
  5944 7 and on being presented, the cheque has been
  dishonoured.

          B. Subsequent thereto on 6.2.2004, the respondent no. 2
0   filed an FIR being l.C.R. No. 18 of 2004 under Sections 406/
    420 read with Section 114 of Indian Penal Code, 1860
    (hereinafter referred as 'IPC') with the Sidhpur Police Station
    for committing the offence of criminal breach of trust, cheating
    and abetment etc.

E         C. In the criminal case No.1334 of 2003 filed under Section
    138 of N.1. Act, the trial court convicted the appellant.
    Aggrieved, appellant preferred Appeal No. 12 of 2006, before
    the District Judge wherein, he has been acquitted. Against the
    order of acquittal, respondent no. 2 has preferred Criminal
F   Appeal No. 1997 of 2008 before the High Court of Gujarat which
    is still pending consideration.

       D. Appellant filed an application under Section 482
  Cr.P.C., seeking quashing of ICR No. 18 of 2004 and Criminal
G Case No. 5 of 2004, pending before the Chief Judicial
  Magistrate, Patan, on the grounds, inter-alia, that it amounts to
  abuse of process of law. The appellant stood acquitted in
  criminal case under Section 138 of N.I. Act. Thus, he cannot
  be tried again for the same offence. In the facts of the case,
H doctrine of double jeopardy is attracted. The High Court
  dismissed the said application.
 SANGEETABEN MAHENDRABHAI PATEL v. STATE1163
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

    Hence, this appeal.                                            A

     3. Shri Abhishek Singh, learned counsel appearing for the
appellant, has submitted that the ICR as well as the criminal
case pending before the Chief Judicial Magistrate, Patan, is
barred by the provisions of Section 300 Cr.P.C. and Section
                                                                   B
26 of the General Clauses Act, 1897 (hereinafter called
'Genera' Clauses Act') as the appellant has already been dealt
with/tried under Section 138 of N.I. Act for the same offence.
Thus, the High Court committed an error in not quashing the
said ICR and the criminal case. It amounts to double jeopardy      C
and, therefore, the appeal deserves to be allowed.

     4. On the contrary, Shri Rakesh Upadhyay, learned counsel
appearing for the respondent no. 2 and Mr. S. Panda, learned
counsel appearing for the State of Gujarat, have vehemently
opposed the appeal contending that the provisions of Section       D
300 Cr.P.C. i.e. 'Doctrine of Double Jeopardy' are not attracted
in the facts and circumstances of the case, for the reason, that
the ingredients of the offences under Sections 406/420 read
with Section 114 IPC are entirely distinct from the case under
Section 138 of N.I. Act, and therefore, do not constitute the      E
same offence. The appeal is devoid of any merit and liable to
be dismissed.

     5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
                                                                   F
    The sole issue raised in this appeal is regarding the scope
    and application of doctrine of double jeopardy. The rule
    against double jeopardy provides foundation for the pleas
    of autrefois acquit and autrefois convict. The manifestation
    of this rule is to be found contained in Section 300 Cr.P.C;   G
    Section 26 of the General Clauses Act; and Section 71
    1.P.C.

    Section 300(1) Cr.P.C. reads:
                                                                   H
    1164    SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A       "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
B       offence for which a different charge from the one made
        against him might have been made under sub-section (1)
        of Section 221, or for which he might have been convicted
        under sub-section (2) thereof."

        Section 26 of the General Clauses Act, 1897 reads:
c
        "Provision as to offences punishable under two or more
        enactments. - Where an act or omission constitutes an
        offence under two or more enactments, then the offender
        shall be liable to be prosecuted and punished under either
D       or any of those enactments, but shall not be liable to be
        punished twice for the same offence."

        Section 71 of l.P.C. reads:

        "Limit of punishment of offence made up of several
E       offences. - Where anything which is an offence is made
        up of parts, any of which parts is itself an offence, the
        offender shall not be punished with the punishment of more
        than one of such his offences, unless it be so expressly
        provided.
F                                II




       6. In Maqbool Hussain v. State of Bombay, AIR 1953 SC
  325, the Constitution Bench of this Court dealt with the issue
  wherein the central issue arose in the context of the fact that a
G person who had arrived at an Indian airport from abroad on
  being searched was found in possession of gold in
  contravention of the relevant notification, prohibiting the import
  of gold. Action was taken against him by the customs
  authorities and the gold seized from his possession was
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1165
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

confiscated. Later on, a prosecution was launched against him         A
in the criminal court at Bombay charging him with having
committed the offence under Section 8 of the Foreign
Exchange Regulation Act, 1947 (hereinafter called ·FERA')
read with the relevant notification. In the background of these
facts, the plea of "autrefois acquit" was raised seeking              B
protection under Article 20(2) of the Constitution of India, 1950
(hereinafter called the 'Constitution'). This court held that 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        c
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 twice punished 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        D
same offence as that in respect of which he is arraigned. 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   E
shown that the verdict of acquittal of the previous charge
necessarily involves an acquittal of the latter.

     7. The Constitution Bench of this Court in
S.A.Venkataraman v. Union of India & Anr., AIR 1954 SC 375,           F
explained the scope of doctrine of double jeopardy, observing
that in order to attract the provisions of Article 20 (2) of the
Constitution, there must have been both prosecution and
punishment in respect of the same offence. The words
'prosecuted' and 'punished' are to be taken not distributively so     G
as to mean prosecuted or punished. Both the factors must co-
exist in order that the operation of the clause may be attractive.

    8. In Om Prakash Gupta v. State of UP., AIR 1957 SC
458; and State of Madhya Pradesh v. Veereshwar Rao
                                                                      H
    1166      SUPREME COURT REPORTS                   [2012] 3 S.C.R.


A Agnihotri, AIR 1957 SC 592, this Court has hekl that
  prosecution and conviction or acquittal under Section 409 IPC
  do not debar trial of the accused on a charge under Section
  5(2) of the Prevention of Corruption Act, 1947 because the two
  offences are not identical in sense, import and content.
B
       9. In Leo Roy Frey v. Superintendent, District Jail, Amritsar
  & Anr., AIR 1958 SC 119, proceedings were taken against
  certain persons in the first instance before the Customs
  Authorities under Section 167(8) of the Sea Customs Act and
  heavy personal penalties were imposed on them. Thereafter,
C they weire charged for an offence under Section 120-B IPC.
  This Court held that an offence under Section 120-B is not the
  same offence as that under the Sea Customs Act:

           "The offence of a conspiracy to commit a crime is a
o          different offence from the crime that is the object of the
           conspiracy because the conspiracy precedes the
           commission of the crime and is complete before the crime
           is attempted or completed, equally the crime attempted or
           completed does not require the element of conspiracy as
E          one of its ingredients. They are, therefore, quite separate
           offences."

                                                   (Emphasis added)

       10. In The State of Bombay v. S.L. Apte and Anr. AIR
F 1961 SC 578, the Constitution Bench of this Court while dealing
  with the issue of double jeopardy under Article 20(2), held:
           "To operate as a bar the second prosecution and the
           consequential punishment thereunder, must be for "the
           same offence". The crucial requirement therefore for
G
           attracting the Article is that the offences are the same i.e.
           they should be identical. If, however, the two offences are
           distinct, then notwithstanding that the allegations of facts
           in the two complaints might be substantially similar, the
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE1167
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

    benefit of the ban cannot be invoked. It is, therefore,        A
    necessary to analyse and compare not the allegations in
    the two complaints but the ingredients of the two offences
    and see whether their identity is made out.

     xx xx xx xx xx xx xx                                          B
           The next point to be considered is as regards the
    scope of Section 26 of the General Clauses Act. Though
    Section 26 in its opening words refers to "the act or
    omission constituting an offence under two or more
    enactments", the emphasis is not on the facts alleged in       C
    the two complaints but rather on the ingredients which
    constitute the two offences with which a person is charged.
    This is made clear by the concluding portion of the section
    which refers to "shall not be liable to be punistied twice
    for the same offence". If the offences are not the same but    D
    are distinct, the ban imposed by this provision also cannot
    be invoked."                  (Emphasis added)

     11. In Roshan Lal & Ors. v. State of Punjab, AIR 1965
SC 1413, the accused had caused disappearance of the               E
evidence of two offences under sections 330 and 348 IPC and,
therefore, he was alleged to have committed two separate
offences under section 201 IPC. It was held that neither section
71 IPC nor section 26 of the General Clauses Act came to the
rescue of the accused and the accused was liable to be
convicted for two sets of offences under section 201 IPC,          F
though it would be appropriate not to pass two separate
sentences.

    A similar view has been reiterated by this Court in Kharkan
& Ors. v. State of UP., AIR 1965 SC 83.                            G

      12. In Bhagwan Swarup Lal Bishan Lal v. The State of
Maharashtra, AIR 1965 SC 682, while dealing with the issue,
held:

    "The previous case in which this accused was convicted         H
    1168      SUPREME COURT REPORTS               [2012] 3 S.C.R.


A      was in regard to a conspiracy to commit criminal breach
       of trust in respect of the funds of the Jupiter and that case
       was finally disposed of by this Court in Sardul Singh
       Caveeshar v. State of Bombay, AIR 1957 SC 747.
       Therein it was found that Caveeshar was a party to the
B      conspiracy and also a party to the fraudulent transactions
       entered into by the Jupiter in his favour. The present case
       relates to a different conspiracy altogether. The conspiracy
       in question was to lift the funds of the Empire, though its
       object was to cover up the fraud committed in respect of
c      the Jupiter. Therefore, it may be that the defalcations made
       in Jupiter may afford a motive for the new conspiracy, but
       the two offences are distinct ones. Some accused may be
       common to both of them, some of the facts proved to
       establish the Jupiter conspiracy may also have .to be
       proved to support the motive for the second conspiracy.
D
       The question is whether that in itself would be sufficient to
       make the two conspiracies the one and the same
       offence ....

              The two conspiracies are distinct offences. It cannot
E      even be said that some of the ingredients of both the
       conspiracies are the same. The facts constituting the
       Jupiter conspiracy are not the ingredients of the offence
       of the Empire conspiracy, but only afford a motive for the
       latter offence. Motive is not an ingredient of an offence. The
F      proof of motive helps a court in coming to a correct
       conclusion when there is no direct evidence. Where there
       is direct evidence for implicating an accused in an offence,
       the absence of proof of motive is not material. The
       ingredients of both the offences are totally different and
G      they do not form the same offence within the meaning of
       Article 20(2) of the Constitution and, therefore, that Article
       has no relevance to the present case."            (Emphasis
       added)

           13. In The State of A.P. v. Kokki/igada Meeraiah & Anr.,
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1169
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

AIR 1970 SC 771, this Court while having rei:iard to Section        A
403 Cr.P.C., 1898, held:

    "The following important rules emerge from the terms of
    Section 403 of the Code of Criminal Procedure:

           ( 1) An order of conviction or acquittal in respect of   B
    any offence constituted by any act against or in favour of
    a person does not prohibit a trial for any other offence
    constituted by the same act which he may have committed,
    if the court trying the first offence was incompetent to try
    that other offence.                                             C

         (2) If in the course of a transaction several offences
    are committed for which separate charges could have
    been made, but if a person is tried in respect of some of
    those charges, and not all, and is acquitted or convicted,      D
    he may be tried for any distinct offence for which at the
    former trial a separate charge may have been, but was not,
    made.

          (3) If a person is convicted of any offence constituted
    by any act, and that act together with the consequences         E
    which resulted therefrom constitu.ted a different offence, he
    may again be tried tor that different offence arising out of
    the consequences, if the consequences had not happened
    or were not known to the court to have happened, at the
    time when he was convicted.                                     F

          (4) A person who has once been tried by a Court of
    competent jurisdiction for an offence and has been either
    convicted or acquitted shall not be tried for the same
    offence or for any other offence arising out of the same        G
    facts, for which a different charge from the one made
    against him might have been made or for which he might
    have been convicted under the Code of Criminal
    Procedure." (Emphasis added)
                                                                    H
    1170     SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A       14. The Constitution Bench of this Court in The Assistant
  Collector of the Customs, Bombay & Anr. v. L. R. Melwani &
  Anr. AIR 1970 SC 962, repelled the contention of the
  respondents therein that their criminal prosecution for alleged
  smuggling was barred because proceedings were earlier
B instituted against them before Collector of Customs. It was
  observed that neither the adjudication before the Collector of
  Customs was a prosecution, nor the Collector of Customs was
  a Court. Therefore, neither the rule of autrefois acquit can be
  invoked, nor the issue estoppel rule was attracted. The issue
c estoppel rule is a facet of doctrine of autrefois acquit.
          15. This Court has time and again explained the principle
    of issue estoppel in a criminal trial observing that where an
    issue of fact has been tried by a competent court on an earlier
    occasion and a finding has been recorded in favour of the
D   accused, such a finding would 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
E   different offence. This rule is distinct from the doctrine of double
    jeopardy as it does not prevent the trial of any offence but only
    precludes the evidence being led to prove a fact in issue as
    regards which evidence has already been led and a specific
    finding has been recorded at an earlier criminal trial. Thus, the
F   rule relates only to the admissibility of evidence which is
    designed to upset a finding of fact recorded by a competent
    court in a previous trial on a factual issue. (Vide: Pritam Singh
    & Anr. v. The State of Punjab, AIR 1956 SC 415; Manipur
    Administration, Manipur v. Thokchom Bira Singh, AIR 1965
G   SC 87; Workmen of the Gujarat Electricity Board, Baroda v.
    Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu
    Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626).

        16. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors.,
    AIR 1988 SC 1106, wherein the accused were prosecuted
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1171
  OF GUJARAT AND ANR. [DR. 8.S. CHAUHAN, J.]

under Customs Act, 1962 (hereinafter referred to as 'Customs            A
Act') and subsequently under Gold (Control) Act, 1968,
(hereinafter called as 'Gold (Control) Act') it was held that the
ingredients of the two offences are different in scope and
content. The facts constituting the offence under the Customs
Act are different and are not sufficient to justify the conviction      s
under the Gold (Control) Act. It was held that what was
necessary is to analyse the ingredients of the two offences and
not the allegations made in the two complaints.

    17. In Mis. P. V. Mohammad Barmay Sons v. Director of               C
Enforcement AIR 1993 SC 1188, it was held:

     "The further contention that under the Sea Custom Act for
     the self same contravention, the penalty proceedings
     terminated in favour of the appellant, is of little avail to the
     appellant for the reasons that two Acts operate in different       D
     fields, one for contravention of FERA and the second for
     evasion of excise duty. The mere fact that the penalty
     proceedings for evasion of the excise duty had ended in
     favour of the appellant, does not take away the jurisdiction
     of the enforcement authorities under the Act to impose the         E
     penalty in question. The doctrine of double jeopardy has
     no application."

(See also: State of Bihar v. MuracJAli Khan & Ors., AIR 1989
SC 1; Union of India etc. etc. v. K. V. Jankiraman etc. etc., AIR
1991 SC 201 O; State of Tamil Nadu v. Thiru K. S. Murugesan
                                                                        F
& Ors., (1995) 3 SCC 273; and State of Punjab & Anr. v.
Dalbir Singh & Ors., (2001) 9 SCC 212).

    18. In A.A. Mui/a & Ors. v. State or Maharashtra & Anr.,
AIR 1997 SC 1441, the appellants were charged under Section             G
409 IPC and Section 5 of the Prevention of Corruption Act,
1947 for making false panchnama disclosing recovery of 90
gold biscuits on 21-9-1969 although according to the
prosecution case the appellants had recovered 99 gold biscuits.
The appellants were tried for the same and acquitted. The               H
    1172    SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A   appellants were also tried for offence under Section 120-8 IPC,
    Sections 135 and 136 of the Customs Act, Section 85 of the
    Gold (Control) Act and Section 23(1-A) of FERA and Section
    5 of Import and Export (Control) Act, 1947. The appellants filed
    an application before the Judicial Magistrate contending that
B   on the selfsame facts they could not be tried for the second time
    in view of Section 403 of the Code of Criminal Procedure,
    1898 (corresponding to Section 300 Cr.P.C.). This Court held:

        ",lifter giving our careful consideration to the facts and
        circumstances of the case and the submissions made by
c       the learned counsel for the respective parties, it appears
        to us that the ingredients of the offences for which the
        appellants were charged in the first trial are entirely
        different. The second trial with which we are concerned in
        this appeal, envisages. a different fact-situation and the
D       enquiry for finding out facts constituting offences under the
        Customs Act and the Gold (Control) Act in the second trial
        is of a different nature ....... Not only the ingredients of
        offences in the previous and the second trial are different,
        the factual foundation of the first trial and such foundation
E       for the second trial is also not indented (sic). Accordingly,
        the second trial was not barred under Section 403 CrPC
        of 1898 as alleged by the appellants." (Emphasis added)

        19. In Union of India & Ors. v. Sunil Kumar Sarkar, AIR
F 2001 SC 1092, this Court considered the argument that if the
  punishment had already been imposed for Court Martial
  proceedings, the proceedings under the Central Rules dealing
  with disciplinary aspect and misconduct cannot be held as it
  would amount to double jeopardy violating the provisions of
G Article 20 (2) of the Constitution. The Court explained that the
  Court Martial proceedings deal with penal aspect of the
  misconduct while the proceedings under the Central Rules deal
  with the disciplinary aspect of the misconduct. The two
  proceedings do not over-lap at all and, therefore, there was no
  question of attracting the doctrine of double jeopardy. While
H
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1173
  OF GUJARAT AND ANR. [DR. B S. CHAUHAN, J.]

deciding the said case, the court placed reliance upon its earlier    A
judgment in R. Viswan & Ors. v. Union of India & Ors., AIR
1983 SC 658.

     20. In Union of India & Anr. v. PD Yadav, (2002) 1 SCC
405, this Court dealt with the issue of double jeopardy in a case
                                                                      8
where the pension of the official, who stood convicted by a
Court-Martial, had been forfeited. The Court held:
     "This principle is embodied in the well-known maxim nemo
     debet bis vexari si constat curiae quod sit pro una et
     eadem causa, meaning no one ought to be vexed twice if
     it appears to the court that it is for one and the same cause.   C
     Doctrine of double jeopardy is a protection against
     prosecution twice for the same offence. Under Articles 20-
     22 of the Indian Constitution, provisions are made relating
     to personal liberty of citizens and others ..... Offences such
     as criminal breach of trust, misappropriation, cheating,         D
     defamation etc., may give rise to prosecution on criminal
     side and also for action in civil court/ other forum for
     recovery of money by way of damages etc., unless there
     is a bar created by law. In the proceedings before General
     Court Martial, a person is tried for an offence of               E
     misconduct and whereas in passing order under
     Regulation 16 (a) for forfeiting pension, a person is not
     tried for the same offence of misconduct after the
     punishment is imposed for a proven misconduct by the
     General Court Martial resulting in cashiering, dismissing        F
     or removing from service. Only further action is taken under
     Regulation 16 {a) in relation to forfeiture of pension. Thus,
     punishing a person under Section 71 of the Army Act and
     making order under Regulation 16 (a) are entirely different.
     Hence, there is no question of applying principle of double      G
    jeopardy to the present cases."

     21. In State of Rajasthan v. Hat Singh & Ors. AIR 2003
SC 791, this Court held that as the offence of glorification of
Sati under Section 5 of the Rajasthan Sati (Prevention) Act.
                                                                      H
    1174    SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A 1987, is different from the offence of violation of prohibitory order
  issued under Section 6 thereof, the doctrine of double jeopardy
  was not attracted for the reason that even if prohibitory order
  is promulgated, a subsequent criminal act even if falls under
  Section 5 could not be covered under Section 6(3) of the said
B Act. Doctrine of double jeopardy is enshrined in Section 300
  Cr.P.C. and Section 26 of the General Clauses Act. Both the
  provisions employ the expression "same offence".

        22. Similar view has been reiterated by this Court in State
    of Haryana v. Ba/want Singh, AIR 2003 SC 1253, observing
C that there may be cases of misappropriation, cheating,
  defamation etc. which may give rise to prosecution on criminal
  side and also for action in civil court/other forum for recovery
  of money by way of damages etc. Therefore, it is not always
  necessary that in every such case the provision of Article 20(2)
D of the Constitution may be attracted.

      23. In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR
  2003 SC 2545, this Court while considering the case for
  quashing the criminal prosecution for evading the customs duty,
E where the matter stood settled under the Kar Vivad Samadhan
  Scheme 1988, observed that once the tax matter was settled
  under the said Scheme, the offence stood compounded, and
  prosecution for evasion of duty, in such a circumstance, would
  amount to double jeopardy.
F      24. In view of the above, the law is well settled that in order
  to attract the provisions of Article 20(2) of the Constitution i.e.
  doctrine of autrefois acquit or Section 300 Cr.P.C. 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
G must be the same and not different. 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.
  Motive for committing offence cannot be termed as ingredients
  of offences to determine the issue. The plea of autrefois acquit
H is not proved unless it is shown that the judgment of acquittal
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1175
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

in the previous charge necessarily involves an acquittal of the      A
latter charge.

     25. In Radheshyam Kejriwal v. State of West Bengal &
Anr., (2011) 3 SCC 581, while dealing with the proceedings
under the provisions of Foreign Exchange Regulation Act,
                                                                8
1973, this Court quashed the proceedings (by a majority of 2:1)
under Section 56 of the said Act because adjudication under
Section 51 stood finalised. The Court held :

          "The ratio which can be culled out from these
    decisions can broadly be stated as follows:                      C

         (i) Adjudication proceedings and criminal
    prosecution can be launched simultaneously;

         (ii) Decision in adjudication proceedings is not
                                                                     0
    necessary oefore initiating criminal prosecution;

         (iii) Adjudication proceedings and criminal
    proceedings are independent in nature to each other;

          (iv) The finding against the person facing prosecution     E
    in the adjudication proceedings is not binding on the
    proceeding for criminal prosecution;

           (v) Adjudication proceedings by the Enforcement
    Directorate is not prosecution by a competent court of law
    to attract the provisions of Article 20(2) of the Constitution   F
    or Section 300 of the Code of Criminal Procedure;

          (vi) The finding in the adjudication proceedings in
    favour of the person facing trial for identical violation will
    depend upon the nature of finding. If the exoneration in         G
    adjudication proceedings is on technical ground and not
    on merit, prosecution may continue; and

           (vii) In case of exoneration, however, on merits where
    the allegation is found to be not sustainable at all and the     H
    1176     SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A        person held innocent, criminal prosecution on the same set
         of facts and circumstances cannot be allowed to continue,
         the underlying principle being the higher standard of proof
         in criminal cases."

         The ratio of the aforesaid judgment is not applicable in this
8
    case for the reason that proceedings under Section 138 of N .I.
    Act are still sub judice as the appeal is pending and the matter
    has not attained finality.

       26. Learned counsel for the appellant has further placed
C reliance on the judgment in G. Sagar Suri & Anr. v. State of
  UP. & Ors., (2000) 2 SCC 636, wherein during the pendency
  of the proceedings under Section 138 N.I. Act, prosecution
  under Sections 406/420 IPC had been launched. This Court
  quashed the criminal proceedings under Sections 406/420
D IPC, observing that it would amount to abuse of process of law.
  In fact, the issue as to whether the ingredients of both the
  offences were same, had neither been raised nor decided.
  Therefore, the ratio of that judgment does not have application
  on the facts of this case.
E
         Same remained the position so far as the judgment in
    Kol/a Veera Raghav Rao v. Gorantla Venkateswara Rao &
    Anr., (2011) 2 sec 703, is concerned. It has been held therein
    that once the conviction under Section 138 of N.I. Act has been
    recorded, the question of trying a same person under Section
F   420 IPC or any other provision of IPC or any other statute is
    not permissible being hit by Article 20(2) of the Constitution and
    Section 300(1) Cr.P.C.

       27. Admittedly, the appellant had been tried earlier for the
G offences punishable under the provisions of Section 138 N.I.
  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 N.I. Act,
  the mens rea i.e. fraudulent or dishonest intention at the time
H of issuance of cheque is not required to be proved. However,
 SANGEETABEN MAHENDRABHAI PATEL v. STATE 1177
  OF GUJARAT AND ANR. [DR. B.S. CHAUHAN, J.]

in the case under IPC involved herein, the issue of mens rea         A
may be relevant. The offence punishable under Section 420 IPC
is a serious one as the sentence of 7 years can be imposed.
In the case under N.I. 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          B
draws the cheque. Such a requirement is not there in the
offences under IPC. In the case under N.I. Act, if a fine is
imposed, it is to be adjusted to meet the legally enforceable
liability. There cannot be such a requirement in the offences
under IPC. The case under N.I. Act can only be initiated by filing   c
a complaint. However, in a case under the IPC such a conditio
  is not necessary.

     28. There may be some overlapping of facts in both the
cases but ingredients of offences are entirely different. Thus,
the subsequent case is not barred by any of the aforesaid            D
statutory provisions.

    The appeal is devoid of any merit and accordingly
dismissed.
                                                                     E
D.G.                                         Appeal dismissed.