Madhya Pradesh High Court
Smt. Angoori Devi W/O Shri Baijnath ... vs Rajendra Sharma on 8 January, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
M.P. No.6885/2019
Smt. Angoori Devi vs. Rajendra Sharma & Ors.
Gwalior, Dated :08/01/2020
Shri N.K. Gupta, Senior Advocate with Shri S.D.Singh
Bhadoriya, Counsel for the petitioner.
This petition under Article 227 of the Constitution of India has
been filed against the order dated 10.12.2019 passed by 13 th
Additional District Judge, Gwalior in Civil Suit No.39A/2010 by
which the petitioner has been denied the opportunity to put questions
to the plaintiff regarding the criminal case registered against him.
The necessary facts for disposal of the present petition in short
are that respondent No.1 Rajendra Sharma (plaintiff) has filed a suit
for specific performance of contract, declaration as well as for permanent injunction. It appears that the petitioner has lodged a FIR against the plaintiff on the ground that the agreement to sale is a forged document. When the cross-examination of the plaintiff was going on, the petitioner tried to put certain questions with regard to the pendency of the criminal case which has been denied by the Trial Court and, accordingly, this petition has been filed.
It is submitted by the counsel for the petitioner that since the suit has been filed for specific performance of contract and on the FIR lodged by the petitioner, the plaintiff is already facing a criminal prosecution on the allegation that the said agreement to sale is a 2 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
forged document, therefore, the questions sought to be put by the petitioner are relevant for the just disposal of the suit and the Trial Court has committed material illegality by rejecting the prayer of the petitioner to put the questions with regard to the pendency of the criminal case.
Heard the learned counsel for the petitioner.
From the impugned order it is clear that the respondent No.10 had filed a miscellaneous petition before this Court which was registered as M.P.No.5089/2019 and the said miscellaneous petition was dismissed and was held that the petitioner therein, cannot be permitted to put the question with regard to registration of criminal cases and investigation done by the police.
It is submitted by the counsel for the petitioner that Gopal is the legal representative of defendant No.1 whereas the petitioner is the defendant No.2 and the FIR was lodged on her report and thus the order passed by this Court in M.P.No.5089/2019 does not apply to the petitioner and the Trial Court has wrongly disallowed the question after relying upon the order passed by this Court in M.P.No.5089/2019.
The controversy involved lies in a very narrow compass. It appears that the petitioner/respondent No.1 has filed a suit for specific performance whereas the petitioner had lodged a FIR on the 3 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
allegation that the plaintiff/respondent No.1 has created a forged and concocted agreement to sale. It is well established principle of law that the findings given by the Criminal Court are neither binding on the Civil Court nor is a relevant fact.
The Supreme Court in the case of Devendra and others vs. State of Uttar Pradesh & Anr. reported in (2009) 7 SCC 495 has held as under:-
13. There cannot, however, be any doubt or dispute whatsoever that in a given case a civil suit as also a criminal proceeding would be maintainable. They can run simultaneously. Result in one proceeding would not be binding on the court determining the issue before it in another proceeding. In P. Swaroopa Rani v. M. Hari Narayana the law was stated, thus: (SCC p. 769, para 11) "11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."
xxx
25. Mr Das, furthermore, would contend that the order of the High Court dated 17-10-2005 would operate as res judicata. With respect, we cannot subscribe to the said view. The principle of res judicata has no application in a criminal proceeding. The principles of res judicata as adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature.
The Supreme Court in the case of M.S. Sheriff and another 4 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
vs. State of Madras & Ors. reported in AIR 1954 SC 397 has held as under:-
15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
The Supreme Court in the case of P.S. Swaroopa Rani vs. M. Hari Narayana alias Hari Babu reported in (2008) 5 SCC 765 has held as under:-
11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. (See M.S. Sheriff v. State of Madras, Iqbal Singh Marwah v. Meenakshi Marwah and Institute of Chartered Accountants of India v.
Assn. of Chartered Certified Accountants.) The Supreme Court in the case of Syed Askari Hadi Ali Augustine Imam & Anr. vs. State (Delhi Administration & Anr.) reported in (2009) 5 SCC 528 has held as under:-
22. It is, however, now well settled that 5 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. The law in this behalf has been laid down in a large number of decisions. We may notice a few of them.
23. In M.S. Sheriff v. State of Madras a Constitution Bench of this Court was seized of a question as to whether a civil suit or a criminal case should be stayed in the event both are pending; it was opined that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.
24. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceeding. The question came up for consideration in K.G. Premshanker v. Inspector of Police wherein this Court inter alia held: (SCC p. 97, paras 30-31) "30. What emerges from the aforesaid discussion is--(1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, 6 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is--whether judgment, order or decree is relevant, if relevant--its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case."
25. It is, however, significant to notice that the decision of this Court in Karam Chand Ganga Prasad v. Union of India, wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled, stating:
(K.G. Premshanker case, SCC p. 98, para 33) "33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general 7 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of the Evidence Act."
Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court.
The Supreme Court in the case of Guru Granth Saheb Sthan Meerghat Vanaras vs. Ved Prakash & Ors. reported in (2013) 7 SCC 622 has held as under:-
7. A Constitution Bench of this Court in M.S. Sheriff v. State of Madras has considered the question of simultaneous prosecution of the criminal proceedings with the civil suit. In paras 14, 15 and 16 of the Report, this Court stated as follows: (AIR p. 399) "14. ... It was said that the simultaneous prosecution of these matters will embarrass the accused. ... but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.
15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or 8 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
8. The ratio of the decision in M.S. Sheriff is that no hard-and-fast rule can be laid down as to which of the proceedings--civil or criminal--must be stayed. It was held that possibility of conflicting decisions in the civil and criminal courts cannot be considered as a relevant consideration for stay of the proceedings as law envisaged such an eventuality. Embarrassment was considered to be a relevant aspect and having regard to certain factors, this Court found expedient in M.S. Sheriff to stay the civil proceedings. The Court made it very clear that this, however, was not hard-and-fast rule; special considerations obtaining in any particular case might make some other course more expedient and just. M.S. Sheriff does not lay down an invariable rule that simultaneous prosecution of criminal proceedings and civil suit will embarrass the accused or that invariably the 9 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
proceedings in the civil suit should be stayed until disposal of criminal case.
9. In Karam Chand Ganga Prasad v. Union of India this Court in para 4 of the Report made the following general observations: (SCC p. 695) "4. It is a well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true." This statement has been held to be confined to the facts of that case in a later decision in K.G. Premshanker v. Inspector of Police, to which we shall refer to a little later.
10. In V.M. Shah v. State of Maharashtra, while dealing with the question whether the conviction under Section 630 of the Companies Act was sustainable, this Court, while noticing the decision in M.S. Sheriff, in para 11 of the Report held as under: (V.M. Shah case, SCC p. 770) "11. As seen that the civil court after full- dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial court and neither the finding of the civil court gets disturbed nor the decree becomes inoperative."
The statement of law in V.M. Shah, as quoted above, has been expressly held to be not a good law in K.G. Premshanker.
11. In State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. this Court made the 10 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
following statement in para 3: (SCC pp. 87-88) "3. It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal court would deal with the offence punishable under the Act. On the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power. We have never come across stay of any civil suits by the courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on a wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise, it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. But since the defence has already been filed nothing survives in this matter."
12. We may now refer to a three-Judge Bench decision of this Court in K.G. Premshanker. The three-Judge Bench took into consideration Sections 40, 41, 42 and 43 of the Evidence Act, 1872 and also the decision of this Court in M.S. Sheriff and observed in para 32 of the Report that:
(K.G. Premshanker case, SCC p. 97) "32. ... the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration."
13. Section 40 of the Evidence Act makes it plain that:
"40. Previous judgments relevant to bar a second suit or trial.--The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take 11 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
cognizance of such suit or to hold such trial."
14. Section 41 provides for relevancy of judgments passed in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction by the competent court. It reads as follows:
"41. Relevancy of certain judgments in probate, etc., jurisdiction.--A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof--
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."
15. Section 42 deals with relevancy and effect of the judgments, orders or decrees, other than those mentioned in Section 41. It reads as under:
"42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.--Judgments, orders or decrees other 12 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state."
16. Section 43 provides that the judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of the Evidence Act.
17. In K.G. Premshanker the effect of the above provisions (Sections 40 to 43 of the Evidence Act) has been broadly noted thus: (SCC p. 97, para 30) "30. ... (4) if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein."
Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.
18. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil suit till the decision of criminal case. Firstly, because even if there is a possibility of conflicting decisions in the civil and criminal courts, such an eventuality cannot be taken as a relevant consideration. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (Respondents 1 to 4 herein) as they had already filed the written statement in the 13 THE HIGH COURT OF MADHYA PRADESH M.P. No.6885/2019 Smt. Angoori Devi vs. Rajendra Sharma & Ors.
civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of Respondents 1 to 4 in the criminal proceedings.
Thus it is clear that merely because a criminal case has been registered on the allegation that the plaintiff/respondent No.1 has created a false and fabricated agreement to sale, the said fact has no relevance so far as the civil suit is concerned. The parties are required to prove their case independent to that of the criminal proceedings.
When the findings of a Criminal Court are neither binding nor relevant for the suit, then the Trial Court did not commit any mistake in not permitting the petitioner to put the question with regard to the registration of a criminal case. Accordingly, this Court is of the considered opinion that no jurisdictional error could be pointed out by the counsel for the petitioner.
Accordingly, the order dated 10.12.2019 passed by 13 th Additional District Judge, Gwalior in Civil Suit No.39A/2010 is hereby affirmed.
The petition fails and is hereby dismissed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2020.01.09
16:49:32 +05'30'