Mahendra Dayal, J.:— The applicants have invoked the jurisdiction of this Court, under Section 482 Cr.P.C for setting aside the impugned order dated 31.5.2016, passed by the Additional Sessions Jude, Court No. 4, Gonda, in Crl. Revision No. 17 of 2016 and the order dated 18.12.2015 passed by the Additional Judicial Magistrate-II, Gonda, in Crl. Case No. 506 of 2009 pertaining to Crime No. 200 of 2008, under Sections 419, 420, 467, 468 and 471 IPC, relating to Police Station Umri Begumganj, District Gonda.
2. The facts in brief are that the opposite party no. 2 is in possession of land Gata No. 77, Village Barauli, Tehsil Tarabganj, District Gonda. Since the opposite party no. 2 was in service, therefore for the purpose of taking care of his property, he executed a power of attorney in favour of the applicant on 2.5.1985 The opposite party no. 2 sold his agricultural land to Arjun Singh and for execution of sale deed he authorized the applicant to execute the same on the basis of power of attorney. The applicant accordingly executed sale deed in favour of Arjun Singh. Thereafter the opposite party no. 2 filed a suit for cancellation of sale deed. However, the said suit was abated as during the pendency of the suit the land came under the consolidation. With a view to further harass the applicant and the purchaser, the opposite party no. 2 lodged an FIR which was registered at Crime No. 160 of 1989, under Sections 419, 420 IPC. However, the police after investigation did not find any evidence and accordingly submitted final report. The opposite party no. 2 preferred a protest petition which was converted into complaint and the applicant as well as Arjun Singh were summoned for trial. The learned trial court after full trial acquitted the applicant on 7.8.1998 After the applicant was acquitted, the opposite party no. 2 started contesting the mutation proceedings and filed an application for search of the record. Simultaneously he also executed a sale deed of the same land in favour of Mata Prasad Singh on 23.12.2002 However, the Consolidation Officer finding that the sale deed in favour of Arjun Singh was valid, passed an order for mutation. The opposite party no. 2 preferred a recall application and also filed an application under Section 156(3) Cr.P.C The learned Magistrate called for a report from the Police Station. After perusal of the report the learned Magistrate dismissed the application on 14.6.2007 but the revision filed against the aforesaid order was allowed on 18.1.2008 The learned Magistrate after remand of the case allowed the application under Section 156(3) Cr.P.C and in pursuance to that order, the report was lodged by the police. The opposite party no. 2 also filed a suit challenging the validity and legality of power of attorney executed by him in favour of the applicant. This suit being R.S No. 353 of 2007 is still pending. when the FIR was registered against the applicant, he preferred a Writ Petition No. 9500 (MB) of 2008 before this Court in which the interim order was passed in favour of the applicant but when the charge sheet was submitted the said writ petition become infructuous. The applicant feeling aggrieved by the summoning order, again approached this Court under Section 482 Cr.P.C, which was disposed of on 19.11.2010, providing that if the applicant moves an application for discharge, the same shall be disposed of by a speaking and reasoned order. In pursuance of this order, the applicant moved an application for discharge on the ground that since he had faced the trial and was also acquitted on the same fact, therefore, he cannot be prosecuted again for the same offence. The opposite party no. 2 filed objection against the discharge application but the learned court below rejected the discharge application and the revision filed against that order was also dismissed.
3. The submission on behalf of the applicant is that both the courts below have failed to consider that the applicant is a victim of double jeopardy. A bare perusal of the earlier FIR dated 14.9.1989 and the subsequent FIR dated 9.10.2008 would show that the allegations were same. When the applicant was acquitted by the court after full trial and it was found that no offence under Sections 419, 420 IPC is made out then for the same offence the subsequent complaint was not maintainable and the applicant was liable to be discharged. The courts below have therefore acted illegally in rejecting his discharge application and dismissing the revision against the order passed on discharge application.
4. The learned counsel for the opposite party no. 2 has filed counter affidavit. It has been argued on behalf of opposite party no. 2 that in both the cases although the facts are same but the offences are distinct. In the earlier First Information Report which was lodged in the year 1989 the opposite party no. 2 had stated that the applicant posing himself as attorney holder of the applicant, sold his land to Arjun Singh. He also denied having executed any power of attorney in favour of the applicant. This FIR was registered only under Sections 419 and 420 IPC and the applicant was acquitted because the charges were not found proved. In the second First Information Report the opposite party no. 2 had made allegation that the applicant fraudulently got a power of attorney executed by some one posing him as opposite party no. 2. This power of attorney was manipulated with the help of Sushil Kumar Singh and Arvind. The opposite party no. 2 came to know about the said power of attorney when during the consolidation proceedings, the applicant filed the said power of attorney. He again denied having executed any power of attorney in favour of the applicant and made a prayer that proper action be taken against the applicant. The subsequent FIR was registered against the applicant and two others under Sections 419, 420, 467, 468, 471 IPC. Thus both the cases are different and it cannot be said that the applicant has been made a victim of double jeopardy.
5. The opposite party no2. has relied upon a judgment of Hon'ble Supreme Court rendered in the case of Sangeetaben v. State of Gujarat. In this case the Hon'ble Supreme Court has examined the scope of Section 403 of Cr.P.C It has been held that in order to attract the provision of section 300 cr.pc the ingredient of the offences in the earlier case as well as in the later 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 allegation but the identity of the ingredients of the offences. Motive for committing offences cannot be turned that the ingredient of offence to determine the issue. The plea of double jeopardy is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves as an acquittal of later charge.
6. In order to appreciate the argument advanced by the learned counsel for the applicant, it has to be analyzed as to whether the offence which is made out on the basis of two FIRs, is the same or the different. In the First FIR lodged by the opposite party no. 2, it was alleged that the applicant posing himself as attorney holder of opposite party no. 2, executed a sale deed in favour of Arjun Singh. There was no allegation that the applicant prepared any forged power of attorney allegedly executed by the opposite party no. 2. Probably the opposite party no. 2 had no knowledge about the existence of registered power of attorney in favor of the applicant. For this reason the police submitted charge sheet only under Sections 419, 420 IPC, in which the applicant was admittedly acquitted by the trial court. In the second First Information Report the opposite party no. 2 made specific allegation that the applicant with the help of Sushil Kumar Singh and Arvind arranged impostor and got the power of attorney executed by him, posing as Shiv Kumar Singh. On the basis of the allegation made in the second FIR this case was registered under Sections 419, 420, 467, 468, 471 IPC. Thus the ingredients of the offences in the earlier case and in the subsequent case are entirely different. Applying the principles laid down by the Hon'ble Supreme Court, it cannot be said that the applicant is being tried twice for the same offence. The Hon'ble Supreme Court has clarified that it is not the identity of allegation but the identity of ingredients of the offence which is to be considered. It is not in dispute that the ingredients of the offences under Sections 419, 420, and Sections 467, 468, 471 are different. In these circumstances, I find that the courts below have not committed any illegality in rejecting the discharge application.
7. For the aforesaid reason, I find no force in the application under Section 482 Cr.P.C and as such the same is dismissed.