The existence of a pending civil suit does not preclude a complainant from pursuing a criminal complaint under Section 138 of the Negotiable Instruments Act for dishonored cheques representing a legally enforceable debt.

ORDER :

Sathi Kumar Sukumara Kurup, J.

This Criminal Revision Petition is filed to set aside the judgment dated 20.12.2019 passed in Criminal Appeal No.81 of 2018 on the file of the learned II Additional District and Sessions Judge, Thiruvallur at Poonamallee confirming the judgment dated 22.11.2017 made in S.T.C.No.73 of 2016 on the file of the learned Judicial Magistrate, Fast Track Court-II (Magisterial Level), Poonamallee.

2. The brief facts, which are necessary for the disposal of this Criminal Revision, are as follows:-

2.1. The Complainant in STC No. 73 of 2016 before the learned Judicial Magistrate, Fast Track Court-II (Magisterial Level), Poonamallee is a practicing Doctor. The Accused therein acquainted with the Doctor as a patient. In the course of such interaction, the Doctor came to know that the Accused is a real estate dealer. Therefore, he expressed his intention to purchase a house site. In this context, the Complainant and the Accused entered into an agreement of sale dated 25.11.2014 for purchase of an immovable property owned by the Accused and his wife. On execution of such agreement, the Complainant paid Rs.50,00,000/- out of Rs.60,00,000/-. After execution of the agreement of sale, the Complainant came to know that the land owned by the Accused and his wife is classified as Government Poromboke land. Therefore, the Complainant called upon the Accused to refund the advancce amount paid by him. After repeated demand, the Accused issued two cheques bearing Cheque Nos. 00029 and 00031 dated 19.10.2015 and 29.10.2015 drawn on HDFC Bank, Mylapore, Chennai for a sum of Rs.5,00,000/- each totalling Rs.10,00,000/-. When the Complainant presented the cheques with his banker M/s. IDBI Bank Limited, CTH Road, Avadi, on 22.10.2015 and 30.10.2015, they were returned with an endorsement “insufficient funds” in the account. The Complainant therefore issued a notice dated 23.11.2015 to the Accused for which a reply dated 29.12.20215 was issued by the Accused. Thereafter the Complainant had filed the complaint in S.T.C. No. 73 of 2016 before the learned Judicial Magistrate, Poonamallee.

2.2. The learned Judicial Magistrate, Fast Track Court-II (Magisterial Level), after recording the sworn statement of the Complainant and perusing the documents furnished by him along with the Complaint had taken cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 and taken the Complaint on file as STC.No.73 of 2016. The learned Judicial Magistrate, Fast Track Court-II (Magisterial Level), Poonamallee had issued summons to the Accused along with a copy of the Complaint under Section 207 of Cr.P.C., 2.3. On appearance of the Accused, he was questioned regarding the Charge under 138 of the Negotiable Instruments Act, 1881 but the Accused denied the charge and claimed to be tried. Therefore, trial was ordered. During trial, the Complainant examined himself as P.W-1 and marked six documents as Ex.P-1 to Ex.P-6. Ex.P-1 is the sale agreement entered into with the Accused and his wife. Ex.P-2 series are the cheques bearing Nos.000031 and 000029. Ex.P-3 series are return memos with references to the said cheques. Ex.P-4 is the legal notice with postal receipt dated 24.11.2015. Ex.P-5 is the postal acknowledgment card and Ex.P-6 is the reply notice. Other than the Complainant, no other witnesses were examined on behalf of the Complainant. From the incriminating evidence available before the Court, the Accused was examined under Section 313 Cr.P.C., The Accused denied the incriminating evidence against himself.

2.4. After hearing the argument of the learned Counsel for the Complainant and the learned Counsel for