The filing of a civil suit for recovery of the amount due on a cheque does not absolve the accused from criminal liability under Section 138 of the Negotiable Instruments Act.

Heard the learned Senior Counsel appearing for the petitioners and the learned counsel appearing for the respondent.

2. The petitioners have come forward with the present Criminal Original Petition to quash the case in S.T.C.No.1429/2011 pending on the file of the Judicial Magistrate No.II, Erode for the offences punishable under Section 138 of the Negotiable Instruments Act. The case of the respondent/complainant is that the petitioners herein had borrowed a sum of Rs.9,00,000/- on 05.01.2011 for urgent business purposes and to discharge the same, the petitioners had issued the cheque. However, when the said cheque was presented for encashment, it was returned as 'insufficient funds'. Hence, after the issuance of statutory notice, the present complaint has been preferred.

3. The learned Senior Counsel appearing for the petitioners would submit that the petitioner had actually borrowed a sum of Rs.5,00,000/- from one Bharath Kumar of Tiruppur, where the petitioners were doing business. At the time of borrowal, the said Bharath Kumar took blank signed pro-notes, blank stamp papers and blank white sheets and 3 signed cheques. Thereafter, he filed a suit in O.S.No.113 of 2011 on the file of the II Additional Judge, Tiruppur contending that the petitioners had borrowed a sum of Rs.15,00,000/- from him and also obtained a decree, against which an appeal in A.S.No.384 of 2015 is pending before this Court. While so, the said Bharath Kumar had given a cheque given by the petitioners to his father-in-law, C.Kesavan, who is the respondent herein.

4. The respondent herein had filled up the said cheque for a sum of Rs.9,00,000/- and presented the same for encashment. when the cheque was returned as 'insufficient funds', he had invoked Section 138 of the Negotiable Instruments Act and preferred a complaint against the petitioners. The learned Senior Counsel would further contend that after the filing of the Criminal Complaint, the respondent had also filed a suit in O.S.No.33 of 2014 for recovery of amount due on cheque. Hence, the learned Senior Counsel would contend that as the respondent had initiated a Civil Suit, the criminal proceedings in S.T.C.No.1429/2011 had to be quashed. To support the said contention, the learned Senior Counsel relied upon the decision reported in (2013) 11 Supreme Court Cases 673, Paramjeet Batra v. State of Uttarakhand and others and prayed for an order.

5. Resisting the same, the learned counsel appearing for the respondents would submit that already evidence was over and the case is posted for arguments from 08.01.2016 onwards. Hence, only with a view to drag on the proceedings, the petitioners have come forward with the present application to quash the proceedings. The learned counsel further submitted that mere filing of a suit for recovery of money will not take away the criminal liability of the petitioner and hence, he prayed for dismissal of the petition.

6. Considered the rival submissions made by both sides and perused the typed set of papers.

7. The respondent herein as complainant had preferred a complaint under Section 138 of the Negotiable Instruments Act stating that on 05.01.2011, the second petitioner on behalf of the first petitioner had borrrowed a sum of Rs.9,00,000/- for urgent business purposes for development of the firm with the consent of the third petitioner. On the same date, in order to discharge the liability, the second petitioner issued a cheque dated 28.04.2011 for a sum of Rs.9,00,000/-. However, when the cheque was presented for encashment on 06.05.2011, it was returned as 'insufficient funds'. Hence, after issuance of statutory notice under Section 138(b) of the Negotiable Instruments Act, the present complaint has been preferred.

8. It is pertinent to note that already evidence on both sides was over and the case is posted for arguments from 08.01.2016 onwards. While so, the present petition came to be filed on 12.01.2016. Merely because of the pendency of this Criminal Or