BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.04.2024 C O R A M THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU C.R.P. (MD) No. 871 of 2024 and C.M.P. (MD) No. 4854 of 2024 Shanthi ... Petitioner Vs.

Joseph Veluchamy ... Respondent PRAYER: Petition filed under Article 227 of the Constitution of India, to set aside the order dated 04.01.2024 passed in I.A. No. 01 of 2022 in O.S. No. 90 of 2021 on the file of the Special District and Sessions Judge (PCR), Dindigul and allow this civil revision petition.

For Petitioner : Mr. T.Satheesh

ORDER

This Civil Revision Petition invoking Article 227 of the Constitution of India has been filed challenging the order dated 04.01.2024 passed in I.A. No. 01 of 2022 in O.S. No. 90 of 2021 (hereinafter referred to as the 'impugned order' for short) on the file of the Special District and Sessions Judge (PCR), Dindigul (hereinafter referred to as the 'Trial Court' for short)

2. Heard Mr. T.Satheesh, Learned Counsel appearing for the Petitioner and perused the materials placed on record, apart from the pleadings of the parties.

3. The suit in O.S. No. 90 of 2021 had been laid before the Trial Court for recovery of a sum of Rs.12,00,000/- (Rupees Twelve Lakhs only) due by the Defendant from the Plaintiff under the undated cheque bearing No.387924 drawn on Canara Bank, Thadicombu Branch. The Plaintiff had already initiated criminal proceedings in C.C.No. 128 of 2018 before the Chief Judicial Magistrate, Dindigul, against the Defendant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for short), in respect of the same cheque. In that backdrop, the Defendant had filed application under Rule 11(d) of Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC' for short) in the Trial Court for rejection of the plaint in O.S. No. 90 of 2021 contending that the Plaintiff cannot pursue for the same relief in two proceedings as it would be opposed the principles of natural justice and amount to double jeopardy against him. The Trial Court by the impugned order has rejected that application.

4. It is beyond any cavil that the recovery by way of suit is a civil proceeding and the prosecution under Section 138 of NI Act is essentially criminal in nature with intent to punish the defaulter by imprisonment or fine or both. The mere circumstance that the fine amount could be twice the value of the cheque is no guarantee for the Plaintiff that the entire amount of liability under the cheque with interest could be recovered from the Defendant. It would also assumes significance here that even though the Criminal Court could impose fine on the accused on his conviction, the procedure for granting compensation is discretionary under Section 357 of the Code of Criminal Procedure, 1973, which would not necessarily follow when fine is imposed. The Hon'ble Supreme Court of India in Ajay Kumar Radheshyam Goenka -vs- Tourism Finance Corporation of India Ltd. [(2023) 10 SCC 545], has explicated this legal position in the following words:-

17. .....We are unable to appreciate the plea of the learned counsel for the appellant that because Section 138 of the NI Act proceedings arise from a default in financial debt, the proceedings under Section 138 should be taken as akin to civil proceedings rather than criminal proceedings. We cannot lose sight of the fact that Section 138 of the NI Act are not recovery proceedings. They are penal in character. A person may face imprisonment or fine or both under Section 138 of the NI Act. It is not a recovery of the amount with interest as a debt recovery proceedings would be. They are not akin to suit proceedings.

5. At this juncture, it would be relevant to extract the principles on the exercise of the jurisdiction of the High Court under Article 227 of the Constitution as formulated by the Hon'ble Supreme Court in the decision in Shalini Shyam Shetty -vs- Rajendra Shankar Patil [(2010) 8 SCC 329], which reads as f