Section 138 of N.I. Act is not bar for punishing under section 420 of I.P.C.

Double Jeopardy - Dishonor of Cheque
2012 STPL(Web) 245 SC
Criminal Appeal No. 645 of 2012
High Court has dismissed the application filed by the present 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 dealt with under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as `N.I. Act’) for the same offence. ….. Admittedly, the appellant had been tried earlier for 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 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 ….. 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 statutory provisions. The appeal is devoid of any merit and accordingly dismissed

Full Judgement here

Mahendrabhai Patel vs State of Gujarat
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A must have guide for Senior Citizens

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Plea Bargaining

Plea Bargaining

We are all aware of the backlog of cases in Courts. Presenting solutions to this is the need of the hour. One such solution is ‘plea-bargaining’. I shall explain this in some depth here.There are three types of plea-bargaining –
  • Charge Bargaining
  • Sentence Bargaining
  • Fact Bargaining
Charge bargaining

Here, the defendant pleads guilty to charges whose magnitude is lesser than the offence he is put on trial for. For example, in murder cases, the plea bargain usually offered is manslaughter (in the UK) In India, for example a case of rape could be reduced to one of outraging the modesty of a woman. It occurs when defendant pleads guilty to necessarily included offences.Sentence BargainingIn sentence bargaining, for the defendant’s pleading of guilt even before the case is proven, a lighter sentence is offered. In the US they can be granted only if it is approved so by the trial judge. It sometimes occurs in high profile cases, where the prosecutor does not want to reduce the charges against the suspect, mostly it is due to apprehension of how the media would react.Fact BargainingHere, the defendant may admit to some facts in the court, with an agreement with the prosecutor so as to not introduce other facts in the case. This eliminates the prosecutor’s job to prove those facts. This is the least used type of plea bargaining.It almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain. There may be other benefits as well such as:
  • Getting Out of Jail

  • Resolving the Matter Quickly

  • Having Fewer or Less Serious Offences on One’s Record

  • Avoiding Publicity
For a Judge, the concept of plea bargain is beneficial, as he may dispose of cases more quickly and efficiently and before. Also, the problem of over-crowding in jails would get resolved. The constitutional obligation of a speedy trial and an appropriate sentence could well be achieved by such measures being undertaken. Now remains the important question of how victims would be addressed by plea-bargaining. Victims should be given adequate compensation. Plea bargaining saves the victim from giving uncomfortable evidence, and also the un-pleasantness of having the crime discussed deeply in court. Also the system of plea-bargaining assures the victim of justice and is a win-win situation for all.In the US, plea bargaining has become much like the norm, than to have the accused subject to the trial of a jury. The jury vote could swing either way, but a plea bargain is a fixed and good alternative way. It has become habit for lawyers to use this in trials where a jury dead-lock is most possible.In India, on January 11th, 2006, Section 173 of CrPC was amended to bring about Plea Bargaining. The conditions imposed on plea-bargain are as follows -One reason plea bargain is favoured is that it allows criminals who acceptresponsibility for their actions to receive consideration for their remorse and fornot causing limited resources to be expended in further investigating and litigatingtheir case Plea bargaining also allows prosecutors to settle cases without forcing avictim to endure a lengthy court process or have to testify in a jury trial.References – ‘Plea Bargaining’, available at the website of Maharashtra State Legal Services Authority. The points marked [1] and [2] are taken directly. Everything else is my analysis.
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