A. Padmanabha Panicker vs K.J. Tomy and Another

S. Padmanabhan, J.—The petitioner is the sole accused in C. C. No. 78 of 1990 pending before the Judicial First Class Magistrate, Vaikkom. That case was instituted on a private complaint filed by the first respondent for an offence punishable u/s 138 of the Negotiable Instruments Act. This petition was filed u/s 482 of the Code of Criminal Procedure. Prayer is that the complaint may be quashed as an abuse of the process of court.

There is no dispute regarding the fact that the cheque was issued and that it was dishonoured on presentation and that the requisite notice was issued, but that payment was not made. The first respondent subsequently filed a civil suit and obtained a decree against the petitioner for realisation of the amount. Execution was taken out and attachment of properties was obtained. At that time, the petitioner remitted the amount in the treasury. The only ground on which the present petition was filed is that the civil liability has been discharged.

Learned counsel for the petitioner argued before me that the object of Section 138 of the Act is only enablement of the amount due under the cheque to be realised and that when the said object is achieved through a civil suit, pendency of a criminal prosecution will definitely be an abuse of the process of court.

I am not in a position to agree with counsel. I do not think it is necessary, for the purpose of this case, to go into the contention of the petitioner as to whether mens rea is required for constituting the offence u/s 138 of the Act. There is no dispute regarding the fact that the ingredients necessary for constituting the offence punishable u/s 138 of the Act are there. The question is only whether the criminality is taken away by the fact that the liability was enforced through the civil court. I do not think enforcement of the liability through a civil court will disentitle the aggrieved person from prosecuting the offender for the offence punishable u/s 138 of the Act. Both remedies may be simultaneously possible, A civil suit cannot debar criminal prosecution. At best, realisation of the amount may be taken as a circumstance by the criminal court in considering the sentencing discretion. Simply because of the successful termination of civil litigation, criminal prosecution cannot become an abuse of the process of court justifying interference by this court in exercise of its inherent powers. The petitioner will have to stand his trial before the criminal court.

The petition is, therefore, dismissed.