2016 (3) TMI 695 - SC - Indian Laws

Offenses punishable under Sections 409 and 420 of the Indian Penal Code - bouncing of cheques - appellant having already been convicted under Section 138 of the Negotiable Instruments Act, 1881 - Held that - After hearing learned senior counsel/learned counsel for the parties, perusing the impugned judgment and order and also the order passed in proceedings arising out of Section 138 of NI Act, apart from the fact that the decree is obtained by the respondents in respect of the very same matter, we are of the opinion that it is a clear case of abuse of the process of the court by dragging the appellant to prosecute him for the offences punishable under Sections 409 and 420 of the Code. In our considered view, the reliance placed upon the judgment of this case in the case of Kolla Veera Raghav Rao (2011 (2) TMI 1257 - SUPREME COURT OF INDIA ) is aptly applicable to the fact situation. Applying the said principle and in view of the decree obtained by the respondents against the appellant herein, the impugned judgment and order is liable to be set aside and is set aside accordingly. A higher amount cannot be claimed by the respondents against the appellant.

Summary

Issues:
Challenge to the correctness of the impugned judgment and order dated 29.07.2011 passed by the High Court of Kerala at Ernakulam in Crl.M.C. NO.4632 of 2010.

Analysis:
The appellant was accused in a case for offenses under Sections 409 and 420 of the Indian Penal Code, pending before the Judicial Magistrate, First Class-III, Thrissur. The respondents had filed a suit for recovery of a sum of Rs. 19.90 lacs and Rs. 6.75 lacs, which was decreed in their favor. The appellant argued that the complaint filed against him for the same transaction, alleging cheating and breach of trust, was an abuse of the court process. The appellant relied on a judgment in the case of Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703, stating that being convicted under Section 138 of the Negotiable Instruments Act, he cannot be prosecuted for offenses under Sections 409 and 420 of the Code. The Supreme Court, after considering the arguments and the previous judgment, concluded that it was a clear case of abuse of court process to prosecute the appellant for the said offenses when a decree had already been obtained by the respondents for the same matter. The Court set aside the impugned judgment and order, stating that the reliance on the previous judgment was apt and that a higher amount could not be claimed by the respondents against the appellant.

The appeal was allowed on the above grounds, and any pending applications were disposed of accordingly.