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2008 DIGILAW 4474 (MAD)

Velumani v. N. Gunasekaran

2008-12-02

S.TAMILVANAN

body2008
Judgment :- 1. This Criminal Original Petition has been preferred under Section 482 of the Code of Criminal Procedure, against the criminal proceeding in C.C.No.168 of 2004 on the file of the Judicial Magistrate, Avinashi, seeking an order to call for the records and quash the same. 2. The petitioner herein is the accused in the criminal proceedings, pending before the Judicial Magistrate, Avinashi, for the alleged offence, punishable under Sections 417, 418, 420, 465, 468 and 471 of I.P.C r/w Section 200 of Cr.P.C. The respondent / complainant had already filed a complaint against the petitioner for the offence under Sections 138, 141 and 142 of Negotiable Instruments Act in C.C.No.30 of 2000 on the file of the Judicial Magistrate, Avinashi. In the said case, the petitioner herein filed a petition in Crl.M.P.No. 2368 of 2000 to discharge him, on the ground that no notice was served upon the petitioner, the same was dismissed by the Judicial Magistrate. Subsequently, the respondent herein filed Crl.M.P.No.3639 of 2001 in C.C.No.30 of 2000 to amend the complaint, so as to add the offences under Section 148 r/w 420, 468 r/w 471 IPC, that was allowed by the Judicial Magistrate. Aggrieved by which, the petitioner herein filed Criminal Revision in Crl.R.C.No.1490 of 2002. 3. By order, dated 111. 2003, this Court allowed the criminal revision, whereby held that the petition to amend the charges, so as to incorporate Section 148 r/w 420 IPC and 468 r/w 471 IPC are not legally maintainable in the pending proceeding, that was initiated under Section 138 of Negotiable Instruments Act. There is no dispute with regard to the aforesaid facts. Subsequently, the respondents herein filed another complaint and that was taken on file by the Judicial Magistrate in C.C.No.168 of 2004. Aggrieved by which, the Criminal Original Petition was filed under Section 482 of the Code of Criminal Procedure. 4. Mr. M.M. Sundaresh, learned counsel appearing for the petitioner submitted that for the very same occurrence, the respondent cannot file two different private complaints and that too after the order passed by this Court on 111. 2003 in Crl.R.C.No.1490 of 2002. 5. Mr. R. John Sathyan, learned counsel appearing for the respondent submitted that the criminal proceeding in C.C.No.168 of 2004 is legally maintainable. 2003 in Crl.R.C.No.1490 of 2002. 5. Mr. R. John Sathyan, learned counsel appearing for the respondent submitted that the criminal proceeding in C.C.No.168 of 2004 is legally maintainable. In support of his contention, the learned counsel for the respondent cited the decision, V. Kannan & Others vs. State by District Crime Branch, Namakkal, and contended that offence under Section 420 IPC is maintainable, in spite of the fact that the proceeding under Section 138 of Negotiable Instruments Act is pending and according to him, it would not amount to double jeopardy. 6. On the other hand, the learned counsel appearing for the petitioner relied on the decision, Sagar Suri vs. State of U.P, reported in (2000 (II) CTC 107), wherein the Honble Apex Court has held that after instituting complaint under Section 138 of Negotiable Instruments Act on account of dishonour of cheques, criminal proceedings under Section 406 and 420 IPC could not be initiated against the family members of the drawer of the cheque and accordingly, the proceedings under Section 406 and 420 IPC were quashed by the Honble Apex Court. 7. In the instant case, it is seen that the respondent had filed complaint against the petitioner in C.C.No.30 of 2000, since the cheque, dated 012. 1999 issued by the petitioner was dishonoured. It is not in dispute that the respondent subsequenlty filed Crl.M.P.No.3639 of 2001 in C.C.No.30 of 2000 for amending the complaint, so as to incorporate offence under Section 148 r/w 420 IPC and 468 r/w 471 IPC. Though the same was allowed by the learned Judicial Magistrate, in the revision, by order, dated 111. 2003 made in Crl.R.C.No.1490 of 2002, by allowing the revision, the order passed in Crl.M.P.No.3639 of 2001 adding the other offences by the Judicial Magistrate was set aside. The order passed by this Court in Crl.R.C.No.1490 of 2002 reads as follows: "As a matter of fact, that decision relates to the very same cheque that has been dishonoured, which is the subject matter of 138 of the Act as well as 420 IPC. Even in such cases, the Supreme Court has not permitted the party to add an offence under Section 420 IPC in the complaint already filed. Even in such cases, the Supreme Court has not permitted the party to add an offence under Section 420 IPC in the complaint already filed. But here is a case where the offence itself has been committed only after the launching of the complaint and therefore, by no stretch of imagination can the petitioner be allowed to file a petition requesting the court to add an offence relating to an incident that has taken place subsequently. Therefore, I have no hesitation whatsoever to strike down the order as illegal and allow this revision." However, it was made clear in the order that the order would not affect the rights of the respective parties to claim their respective position in C.C.No.30 of 2000. 8. This Court has clearly held that by way of filing a Crl.M.P, the respondent cannot add some other offences in the criminal complaint, that was already filed in C.C.No.30 of 2000. Further, the subsequent complaint in C.C.No.168 of 2004 was filed only on 06.02.2004 for the very same occurrence. Mr. R. John Sathyan, learned counsel appearing for the respondent submitted that it would not be construed as same occurrence, though it relates to the dishonour of the cheque, issued by the petitioner. However, on the facts and circumstances, I cannot agree with the contention raised by the learned counsel appearing for the respondent, since the second complaint relates to the dishonour of the very same cheque between the same parties. 9. Based on the very same averments and allegations, the respondent / defacto complainant cannot maintain a second criminal proceeding for the dishonour of the cheque issued by the petitioner herein and I am of the view that the decision rendered by the Honble Apex Court in 2000 (II) CTC 107 (cited supra) is applicable on the facts and circumstances of the case and therefore, the Criminal Original Petition has to be allowed on the ground that the criminal proceeding pending before the court below, based on the second complaint in C.C.No.168 of 2004 is an abuse of process of the court and the same is liable to be quashed, under Section 482 of the Code of Criminal Procedure. 10. In the result, the Criminal Original Petition is allowed and the criminal proceeding in C.C.No.168 of 2004, pending on the file of the Judicial Magistrate, Avinashi is quashed. Consequently, connected miscellaneous petitions are closed. 10. In the result, the Criminal Original Petition is allowed and the criminal proceeding in C.C.No.168 of 2004, pending on the file of the Judicial Magistrate, Avinashi is quashed. Consequently, connected miscellaneous petitions are closed. No order as to costs.