IMPORTANT POINT
Judicial Decorum – Judicial decorum demands that if judgments passed by two-Judges’ Bench of equal strength are conflicting, issue of law involved must be referred to a larger Bench as the same is desirable to avoid confusion and maintain consistency of law.

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 Penal Code, 1860 (for short “IPC”) being C.C. No. 33 of 2017 pending before Judicial Magistrate Court No. III, Coimbatore.

3. The brief facts necessary for the instant appeal are that the appellant herein was working as a Civil Engineer in Saudi Arabia. On his return back to India in the year 2011, he purchased a site from respondent no.2 who is the father of respondent no.1 in Coimbatore. Apart from this, the respondents owned 7 other house sites in total in V.C.K. Layout, Trichy Road, Coimbatore City, which all were mortgaged to Tamil Nadu Industrial Investment Corporation, way back from 12.10.2006. Appellant contended that the respondents approached and asked him to invest money for the development of the land of the said 7 sites and assured that profit shall be divided amongst the appellant and respondents. Pursuant to it a profit-sharing agreement was executed between the parties. The appellant made the investment of a sum of Rs.62,32,754/, but neither profit was shared nor any piece of land was given to the appellant. Consequently, the appellant asked to repay the amount. Under guise of assurance of repayment by respondent no.1, the appellant did not lodge any criminal prosecution as per his request. The respondent no.1 handed over a cheque dated 09.09.2015 for an amount of Rs.87,00,000 in lieu of repayment of principal sum and interest.

4. On presenting the said cheque to the bank it was dishonored on account of insufficient funds on 09.09.2015. Being aggrieved, a demand notice was issued on 30.10.2015 and complaint under Section 138 of Negotiable Instruments Act, 1881 (for short “NI Act”) being S.T.C. No.792 of 2015 renumbered as C.C. No.199 of 2016 on the file of Fast Track Magistrate No.1 of Coimbatore (for short “138 Proceedings”) was lodged by the appellant on 07.12.2015. Prior to initiating 138 proceedings, the appellant lodged a complaint under section 156(3) Cr.P.C being CMP No. 5083 of 2015 before Judicial Magistrate No. III Coimbatore on 30.10.2015. The Magistrate directed respondent no. 5 to register the FIR but by filing a report dated 29.01.2016, it was said that no offence is made out against the respondents. The appellant challenged the same by filing CRL.O.P. No. 6766 of 2016 before the High court of Madras and also prayed for direction against respondent no.5 to conduct fresh investigation. The High Court disposed of the same with an 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 a