2018 (12) TMI 1955 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - Section 138 of NI Act - maintainability of final report on the same cause of action - offence under Sections 120(b), 406, 420 and Section 34 of IPC - HELD THAT - The defacto-complainant is agitating the same issue in two forums. The allegations as found in the final report, will only constitute a Prima facie offence under Section 138 of the Negotiable Instruments Act. The defacto-complainant is already prosecuting the complaint before the concerned Court and the same is pending. The present final report on the same cause of action is not maintainable. The continuation of the proceedings before the Court below will result in abuse of process of Court. This Criminal Original Petition is allowed.

Summary

Issues involved:
Quashing of proceedings in C.C.No.33 of 2017 on the grounds of abuse of process of court and maintainability due to pending complaint under Section 138 of the Negotiable Instruments Act.

Analysis:
The petition sought to quash the proceedings in C.C.No.33 of 2017 before the Judicial Magistrate Court No.III, Coimbatore. The respondent Police had filed a final report against the petitioners for offenses under Sections 120(b), 406, 420, and Section 34 of the Indian Penal Code (IPC). The allegations revolved around a civil engineer working abroad who was approached by the petitioners for investment in property development, resulting in a dishonored cheque issue. Notably, a complaint under Section 138 of the Negotiable Instruments Act was already pending in another court, raising the same grounds.

The court observed that the complainant had already raised the same issues in a complaint under Section 138 of the Negotiable Instruments Act, which was pending in a separate court. The police had initially filed a closure report in response to the earlier complaint, leading to a protest petition by the complainant and subsequent final report. The court noted that the allegations in the final report only established a prima facie offense under Section 138 of the Negotiable Instruments Act. Consequently, the court deemed the continuation of proceedings in C.C.No.33 of 2017 as an abuse of the court's process.

In the final judgment, the court quashed the proceedings in C.C.No.33 of 2017, emphasizing that the order did not affect the complainant's pursuit of remedies under Section 138 of the Negotiable Instruments Act in the separate case. The court directed the concerned Magistrate to independently consider the pending complaint on its own merits and in accordance with the law. The judgment concluded by closing the connected miscellaneous petitions.