24 December 2020

Separate F.I.R. can be lodged by every depositor if they are cheated on different dates

Each instance of cheating of every investor/depositor would constitute an independent offence even if it is committed as a part of single conspiracy

    The principal issue herein is with regard to the applicability of Section 220 of the Cr.P.C. as well as the protection provided under Article 20 (3) of the Constitution to a case of inducement, allurement and cheating of a large number of investors/depositors in a criminal conspiracy. The issue posed is whether the offence of cheating - by acceptance of deposits made by individual investors - and there would be multiple such investors, would all constitute the "same transaction" - because the conspiracy or design may be the same or, whether, the act of cheating - by acceptance of deposits made by different investors, would constitute separate transactions - because each act of inducement, allurement and consequential cheating would be unique. The question is whether such transactions could be amalgamated and clubbed together into a single FIR, by showing one investor as the complainant, and the others as the witnesses. Consequently, convicted under one such case would pre-empt prosecution under the other pending cases.[Para No.22]

    Thus even Section 220 does not help the Petitioner as will apply where any one series of acts are so connected together as to form the same transaction and where more than
Separate F.I.R. can be lodged by every depositor if they are cheated on different dates
one offence is committed, there can be a joint trial. In the present case, as is borne out from the record, different people have been alleged to have been defrauded by the Petitioner and the Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/ transaction.[Para No.31]

    We are of the opinion that separate trials which are being made, are in accordance with the provisions of law, otherwise it would have prejudiced the accused persons. Each instance of cheating would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 Cr.PC. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases it may be common to all the cases but at the same time offences are different at different places, by different accused persons and complainants. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the PC Act, etc. There was conspiracy hatched which was a continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2), obviously, there have to be separate trials. Thus, it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being tried again. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scot-free and commit a number of offences which is not the intendment of law. The concept is of "same offence" under Article 20(2) and Section 300 CrPC. In case distinct offences are being committed there has to be independent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in Section 219. One general conspiracy over a period of time has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons are involved. The view also draws from the decision of the Apex Court in the case of Lalu Prasad Vs. State through CBI (A.H.D.) Ranchi, Jharkhand (supra).[Para No.34]

Orissa High Court

Pradeep Kumar Sethy
State Of Odisha

Decided on 23/12/2020

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