Madras High Court
Manoharan vs The Inspector Of Police on 3 August, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/08/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.(MD).No.587 of 2006 and M.P(MD)Nos.1 and 2 of 2006 1.Manoharan 2.M.Latha 3.R.Sonaimuthu 4.Seeniyappan 5.Ganesan ... Petitioners Vs The Inspector of Police, (Law and Order Wing), Usilampatti Town Police Station.... Respondent Prayer Petition filed under Sections 397 and 401 of the Code of Criminal Procedure, to set aside the order of dismissal of discharge petition by the District Munsif cum Judicial Magistrate No.I, Usilampatti in Cr.M.P.No.1918 of 2005 in C.C.No.205 of 2004, dated 27.07.2006. !For Petitioner ... Mr.N.Anantha Padmanaban ^For Respondents ... Mr.P.Rajendran Government Advocate (Crl. Side) :ORDER
This petition has been filed to set aside the order of dismissal of discharge petition by the District Munsif cum Judicial Magistrate No.I, Usilampatti in Cr.M.P.No.1918 of 2005 in C.C.No.205 of 2004, dated 27.07.2006.
2. A re'sume' of facts absolutely necessary for the disposal of this petition as put forth by the petitioner's counsel, would run thus:
The police registered the case in Cr.No.46 of 2004 for the offence punishable under section 420 I.P.C based on the complaint lodged by one Lakshmanan on the alleged ground that there was money transaction between the first petitioner herein and the de facto complainant and in connection with that, he signed a blank promissory note and handed it over to the first petitioner, whereas the first petitioner subsequently approached the de facto complainant by stating that the first petitioner had lost the earlier promissory note and he demanded a fresh one for which the defacto complainant responded positively; after repaying the sum of Rs.15,000/- (Rupees fifteen thousand only) which was borrowed, the first petitioner demanded back the promissory note and got back the second promissory note also; however, the first petitioner in collusion with the other petitioners, filled up the earlier promissory note which was allegedly claimed to have been lost by inserting the name of third petitioner, R.Sonaimuthu, and filed the suit in O.S.No.83 of 2004 and prosecuting the matter. During the pendency of that case, this criminal case emerged. The said suit was decreed in favour of the third petitioner as against which appeal was filed by the defacto complainant which was also dismissed confirming the decree of the trial court. But, the trial Court, having decreed the suit in favour of the third petitioner, one of the accused in C.C.No.205 of 2004, dismissed the discharge petition filed by the petitioners.
3. Being aggrieved by and dissatisfied with, the dismissal of that application, this revision has been filed. Meanwhile, the appellate court also confirmed the judgment and decree of the trial Court. This revision is mainly based on the following inter alia grounds:
4. The issues involved in the civil suit as well in the criminal case are one and the same. The evidence in both the matters are also one and the same. In such a case, the civil Court is the competent forum to decide the civil rights. Consequently, the question of prosecuting the criminal case further to the detriment of the petitioners would not arise.
5. Heard the learned Government Advocate (Criminal Side) also.
6. The point for consideration is as to whether despite the civil forum having decided in favour of the accused relating to the money transaction involved in the matter, the criminal Court could be permitted to proceed with the case on the same point.
7. At this juncture, I would like to recollect the decision of the Honourable Apex Court in Iqbal Singh Marwah and another v. Mennakshi Marwah and another reported in (2005) 4 Supreme Court Cases 370. Certain excerpts from the precedent cited, would run thus:
"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 4 of the old Code, the following observations made by a Constitution Bench in M.S.Sheriff v. State of Madras [1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cri L J 1019] give a complete answer to the problem posed: (AIR p.399, paras 15-
16) "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 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." (emphasis supplied)
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e during the time when the document was in custodia legis.
34. In the present case, the Will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."
8. The aforesaid dictum of the Honourable Apex Court would show that the criminal and civil proceedings could go side by side and as the appreciation of facts differ from the civil Court from that of the criminal Court in recording conviction. The verdict of the Honourable Apex Court is relating to certain set of facts involved in that case so to say, forgery etc. Here, the facts are entirely different. It is purely based on money transaction. The Honourable Apex Court no way mandates that despite civil Court's final verdict, the criminal prosecution should proceed further on the same issues based on civil rights. The contents of the F.I.R are actually found in the written statement of the defacto complainant filed in the civil suit. Both the trial and appellate civil Courts gave concurrent findings that the contention in the written statement should be rejected and it reached its finality also. In such a case, subsequently instituted criminal case has no legs to stand. The defacto complainant is bound by the verdict of the civil Court relating to the civil rights. In such a case, I would cite the decision of the Hon'ble Delhi High Court in Sh. Charanjiv Pratap Ahluwalia and Another v. State(Delhi Admn.) reported in 1997-(103)-CRLJ-0333-DEL. An excerpt from it would run thus:
"I need not repeat the allegations as contained in the civil suit or in the First Information Report in extenso. As already noticed by me, the first Information Report lodged by the Bank is nothing but the incorporation of the same facts which find mention in the civil suit, barring of course certain assertions with regard to criminal intention etc. in order to attract Sections 406 and 420 of the Penal Code. The transactions relate to certain credit facilities granted to the present petitioners and their firm for the purpose of export of Soya Bean Extraction Meal. Certain stocks were hypothecated with the Bank and the grievance of the Bank is that the amount claimed in the suit Report after making a mention of the institution of the civil suit and its pendency in the High Court, proceeds to mention that the defendants in the suit, despite having availed of opportunities, had failed to file their written statement and replies to the plaint and applications in the suit and that it was on account of their dilatory tactics that the bank was being "left with no alternative" but to file the First Information Report. Anyhow, the fact remains that the FIR and the civil suit which was instituted earlier in matter of time are founded on same facts and the same allegations. Should I, under the circumstances stay the criminal proceedings during the pendency of the civil matter? This is the question which stares at me and craves for an answer.
I am conscious of the fact that in M.S.Sherieff v. State of Madras, AIR 1954 SC 397 : (1954 Cri LJ 1019) it is mentioned that criminal proceedings should take place expeditiously and should not ordinarily be stayed till the disposal of the civil matter. However, the judgment itself would go to show that the Court was not laying down a hard and fast rule as peculiar facts of a particular case might necessitate some other couse more expedient and just. What is important to be remembered in this case is that the civil suit was instituted before the lodging of the First Information Report and keeping in view the facts it cannot be denied that the decision in the civil suit will have great bearing on the criminal case. This is so because in the present case the facts are intimately connected and rather are not different from those alleged or pleaded in the civil suit.
A similar question arose in Yelchuri Ranganayakalu Chetty v. Gopala Chetty, AIR 1953 SC 439 wherein it was held that where a civil suit is instituted before the lodging of the First Information Report and the facts are intimately connected, the proceedings in the criminal case should be stayed. A learned single Judge of this Court in Smt. Raminder Kaur Bedi v. Shri Jatinder Singh Bedi, 1989(16)DRJ 154 also, after considering the above noted judgment of the Supreme Court and of the Madras High Court felt that in a case where civil proceedings are initiated before the lodging of the First Information Report and the facts are not distinguishable the proceedings before the criminal Court should be stayed. Yet another single Judge of this Court in Missi Lall v. Tata Ramadurai Iyer 1984 RLR 125 held that where parties had gone to civil Court where entire dispute was likely to be thrashed out and competing interests conclusively determined, it was proper to have the matter decided in the civil Court and to allow the complainant to get the complaint revived after decision by the Civil Court. With respect I tend to agree". (emphasis supplied)_
9. In fact, the earlier decision of the Honourable Apex Court in M.S.Sherieff v. State of Madras, AIR 1954 SC 397 : (1954 Cri LJ 1019) has been taken into consideration in the recent decisions of the Honourable Apex Court and in the Delhi High Court's judgment.
10. Hence, relying upon the aforesaid decision, I am of the considered opinion that the learned Magistrate was not right in dismissing the petition for discharge. The learned Magistrate has not taken into consideration the point discussed supra and the order of the learned Magistrate in Cr.M.P.No.1918 of 2005 in C.C.No.205 of 2004, dated 27.07.2006, has to be set aside and accordingly, set aside.
11. In the result, this Criminal Revision Case is allowed and the petition for discharge in Cr.M.P.No.1918 of 2005 in C.C.No.205 of 2004 is allowed. Consequently, connected M.P(MD)Nos.1 and 2 of 2007 are closed.
rsb To
1.The Inspector of Police, (Law and Order Wing), Usilampatti Town Police Station.
2.The District Munsif cum Judicial Magistrate No.I, Usilampatti.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.