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TMI Blog2022 (8) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... trial? The questions of law have been formulated for answer by a larger bench for decision - the Registry is requested to place the file before Hon ble the Chief Justice of India for orders. - CRIMINAL APPEAL NO. OF 2022 ARISING OUT OF SLP (CRL.) NO.2864 OF 2019 - - - Dated:- 11-8-2022 - S. ABDUL NAZEER And J. K. MAHESHWARI, JJ. For the Petitioner : Mr. S. Nagamuthu, Sr. Adv. Mr. Y. Arunagiri, Adv. Mr. P. Soma Sundaram, AOR Mr. G.R. Vikash, Adv. Mr. A.S. Vairawan, Adv. Mr. R. Sudhakaran, Adv. Mr. Subrahmanya Banu, Adv. Ms. Shalini Mishra, Adv. Ms. Puspita B.,Adv. For the Respondent : Mr. T. Harish Kumar, AOR Mr. Navneet Dugar, Adv. Mr. Raghunatha Sethupathy B., Adv. Mr. Prasanth Padmanaban, Adv. Mr. Subham Kothari, Adv. JUDGMENT J. K. Maheshwari , J. Leave granted. 2. The instant appeal has been filed assailing the final order dated 06.12.2018 passed by the High Court of Madras in CRL.O.P. No. 6750 of 2017, whereby the High Court allowed the criminal petition filed by the respondents no.1 to 4 under Section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C ) and quashed proceedings under Sections 120B, 406, 420 and 34 of the Indian Pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation that the appellant may raise objection on closure report by way of protest petition. In pursuance thereof, the appellant filed a protest petition being Crl.M.P. No. 3891 of 2016, which was allowed by the Magistrate vide order dated 24.09.2016 directing the respondent no. 5 to register the case against the respondent no. 1 to 4 and to complete the investigation. Thereafter only, the respondent no.5 registered the case against respondent no.1 to 4 at Crime No.49 of 2016 for the offences under Sections 120B, 406, 420 and 34 of IPC on 01.10.2016, and after investigation, challan was filed before the competent Magistrate on which cognizance was taken by him. 5. The respondents, being aggrieved by the same, filed CRL.O.P. No. 6750 of 2017 before the High Court of Madras for quashment of the aforesaid proceedings. The High Court by the impugned order allowed the said petition and quashed the proceedings taking into consideration that proceedings under Section 138 of the N.I. Act pertaining to the same cause of action and on the same facts and grounds are pending, prior to the registration of the present proceedings. It was observed that, looking to the allegations made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court was filed for quashment of the complaint which was dismissed. On filing the special leave petition before this Court, it was allowed and the Court directed that the prosecution under Sections 420 and 406 is not tenable and quashed. 8. After having heard learned counsel appearing on behalf of the appellant as well as the respondents who have advanced their contentions relying upon the judgments of this Court. The reliance placed by the appellant is on a judgment of Sangeetaben Mahendrabhai Patel (supra) wherein this Court has considered various judgments. The relevant portion of the judgment of Sangeetaben Mahendrabhai Patel (supra) is reproduced as thus: 35. The learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] wherein during the pendency of the proceedings under Section 138 of the NI Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to the abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have application in the facts of the case. Similarly, the judgment of Kolla Veera Raghav Rao (supra) has also been considered but distinguished on fact while observing that when a conviction under Section 138 of the NI Act has been recorded, the prosecution to try the same person under Section 420 of the IPC is not permissible as per Section 300(1) of Cr.P.C. The judgment of Sangeetaben Mahendrabhai Patel (supra) has been relied in the case of M/s. V.S. Reddy and Sons (supra). 9. Learned counsel for the respondents have relied upon the judgment of G. Sagar Suri (supra) and contended that the said issue has been settled more than two decades prior. The relevant paragraphs of the said judgment are reproduced as thus: 13. In the circumstances of the case in hand the conclusion is inescapable that invoking the jurisdiction of a criminal court for allegedly having committed offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a Director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Registrar of Companies and also about its status. As noted above, in the subsequent statement by the complainant he does not assign any role to the first appellant. The allegation that in the first instance three persons contacted the complainant Company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable. 14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly those who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with the sole purpose of getting the loan due to the Finance Company by browbeating and tyrannising the appellants with criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court separate prosecution was lodged. On filing the quash petition, this Court held that on the same set of allegations two different offences i.e., under NI Act and IPC cannot be proceeded with and the proceedings under Sections 420 and 406 of IPC is liable to be quashed. 12. On perusal of the judgment of Sangeetaben Mahendrabhai Patel (supra) relied in the case of M/S. V.S. Reddy and Sons (supra) by the appellant and the judgments relied upon by the respondents in the case of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) as afore quoted, the facts and the allegations were similar and that too the prosecution for the offences under Section 138 of the NI Act and, under Sections 406 and 420 of the IPC were also similar. In the judgment of Sangeetaben Mahendrabhai Patel (supra) it was held that the requirement to prove an offence under the NI Act and an offence under the IPC is different, and it was observed that there may be some overlapping of facts but the ingredients of the offences are entirely different, therefore, the subsequent cases are not barred by any statutory provisions. While in the case of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra), the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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