Madras High Court
M/S. Sabura Textiles Rep. By Its Manager ... vs V. S. Krishnamoorthy on 9 January, 2001
Equivalent citations: 2001(1)ALT(CRI)393, [2002]112COMPCAS302(MAD), 2001CRILJ1344
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. M/s. Sabura Textiles, Thanjavur filed a private complaint under Section 138 of the Negotiable Instruments Act against V.S.Krishnamoorthy before the Judicial Magistrate No.1. Thanjavur. During the pendency of the said case before the trial Court. V.S.Krishnamoorthy, the accused/respondent filed a petition under Section 309 Cr.P.C. praying for the stay of the trial of the case and postpone the case from time to time till the adjudication of the civil suit which he filed against the complainant, the petitioner herein.
2. The trial court after hearing the counsel for the parties by the order dated 17.11.1998 allowed the application and ordered adjournment of the criminal case till the disposal of the civil matter before the civil Court. Aggrieved over the same, the complainant, the petitioner herein filed a revision before the Court of Principal sessions Judge, Thanjavur. By order dated 4.4.2000, the learned Principal Sessions Judge also confirmed the order of the trial Court and dismissed the revision petition filed by the petitioner. Hence, the petitioner/complainant by way of challenging the order of the sessions Court, filed this petition under Section 482, Cr.P.C.
3. The case put forward by the complainant/petitioner through his complaint is as follows:-
"The complainant is a wholesale proprietor concern dealing in handloom lungies. The accused is doing textile business. The complainant used to supply lungies to the accused on credit basis. After some period, the accused defaulted to pay and discharge the credit bills. The unpaid bills accumulated following continuous default in payment by the accused, resulted in huge liability to the tune of Rs.5,24,526. The accused accepted the said liability and agreed to repay the said amount in nine monthly instalments. Accordingly, the accused gave a D.D. for Rs. 1,00,000 towards the first instalment. Thereafter, he issued a cheque for Rs. 1,00,000 dated 15.2.1998 towards the discharge of the second instalment liability. When the cheque was presented, the same was returned as "exceeds arrangement". Therefore, the complainant issued a statutory notice on 19.2.1998 which was received by the accused on 21.2.1998. Despite that, no payment nor reply was made. Hence, The complaint under Section 138 of the Negotiable Instruments Act."
4. As noted above, while the trial was pending, respondent V.S.Krishnamoorthy filed an application in C.M.P.No.4668 of 1998 under Section 309, Cr.P.C. praying for the stay of the trial and postpone the same from time to time till the adjudication of the civil suit which he filed in O.S.No. 198 of 1998 on the file of the District Munsif, Thanjavur.
5. The grounds mentioned in the said application are as follows:-
"The accused denies his liability and he has not committed any offence. The complainant firm used to supply lungies in bulk quantities to the accused on cash and credit at regular intervals. The accused is entitled to a consolidated commission of 5% on the total sale, of which 2% would be paid initially and the balance at the end of three years. The complainant used to obtain blank signatures in stamp papers and signed blank cheques from the accused as security to ensure prompt payment by the accused. The disputes arose between the complainant and the accused with regard to payment of commission and the accused wanted to have the account settled. Therefore, the accused filed a suit in o.S.No.198 of 1998 before the Civil Court against the complainant for directing him to render true and proper accounts in respect of the sales through the accused and also for payment of the balance of commission due. The accused has not issued any cheque in respect of any liability. The complainant obviously pressed into service one of the blank cheques signed by the accused and delivered to the complainant as security. The liability or otherwise of the accused in respect of the business dealing with the complainant is the basis of which the complaint has been filed. This liability has to be gone into in detail in the civil Court in a comprehensive manner to arrive at a proper conclusion. The decision in the civil suit will have a direct bearing on the main issue of the private complaint which relates to the question whether the accused owes any liability and whether the cheque was issued by him in discharge of the liability. Therefore, the criminal trial of the case has to be stayed and postponed till the adjudication of the civil suit in O.S.No.198 of 1998 is over.
6. The gist of the reply by the complainant for the above petition through the counter is as follows:-
"The allegation regarding the consolidated commission to be paid to the accused is deliberate falsehood. The complainant never obtained blank cheques from the accused as security. In fact, the accused agreed for the settlement of dues and to pay his liability as mentioned in the Confirmation Deed executed by him on 2.12.1997. Accordingly, the accused issued the cheque in question towards the discharge of second instalment liability. The issue in dispute in the civil suit and the question of criminal liability to be decided in this complaint are entirely different and each is to be separately tried and decided upon. One has no bearing on the other. Further, the suit is only ruse by the accused to circumvent the criminal liability. Moreover, the accused has filed the suit only after receipt of the statutory notice under Section 138 of the Negotiable Instruments Act. Therefore, there is no valid or justifiable reason either to grant slay or to postpone the case from time to time till the adjudication of the suit."
7. On the basis of the above pleadings, the trial Court dealt with the submissions made on either side and found that there is a valid ground to grant adjournment of the criminal case till the disposal of the civil matter. The learned Principal Sessions Judge also in the revision filed by the complainant/petitioner, confirmed the same and dismissed the revision.
8. The gist of the findings given by these forums is as follows:-
"Both the parties in civil suit as well as the criminal case are one and the same. The business transaction between the complainant and the accused is clearly admitted. Even according to the complainant, the complainant received cheques for the balance amount of dues. Both the civil suit as well as the criminal case were filed before the respective Courts on the same day, i.e. on 9.3.1998. The accused has filed the suit for rendition of accounts against the complainant. So, the question of liability in criminal proceedings depends upon the result of the civil suit filed by the accused. Hence, the criminal case has to be stayed or adjourned till the disposal of the civil suit."
9. Challenging these findings in this petition under Section 482 Cr.P.C., Mr.K.V. Sridharan, the learned counsel for the petitioner has made the following submissions:-
"The issue in O.S.No.198 of 1998 is whether the defendant is liable to submit the accounts to the plaintiff. The said issue is no! an issue before the criminal Court. Therefore, :he decision in the civil Court will not affect the finding in the criminal Court. As such, the finding that the question of liability in criminal proceedings depends upon the result of the civil suit is clearly erroneous. Moreover, the trial for the offence under Section 138 has to be tried quickly summarily as it is only a summons case. Therefore, when there is no compelling circumstance, the trial Court ought not to have invoked Section 309, Cr.P.C. by slaying the criminal trial and by postponing the same till the disposal of the civil suit."
10. In reply to these submissions, Mr.R.Jayaseelan, the, learned counsel appearing for the respondent/accused would submit in justification of the impugned orders passed by the trial Court as well as the revisional Court.
11. Both the counsel would cite number of authorities in support of their respective pleas.
12. In the light of their respective submissions, let us now consider the question whether the trial arising out of private complaint under Section 138 of the Negotiable Instruments Act has to be stayed or postponed till the disposal of the civil suit filed by the accused?
13. Before dealing with the said question, it would be worthwhile to refer to the various decisions cited by both the counsel giving out the principles and guidelines to be taken note of while invoking Section 309, Cr.P.C.
14. In M.S.Sheriff v. State of Madras, 1954 Cri.LJ.1019, the Apex Court has held thus:
"Between the civil and the criminal proceedings the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration."
15. In State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd, , the Supreme Court has held as follows :
"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."
16. In Sudhir Chakraborty v. State, 1997 Crl. L.J. 1022, the Calcutta High Court has observed as under:
"Article 21 of the Constitution envisages speedy disposal of criminal cases but there is no such provision in the Constitution for speedy disposal of the civil cases. ..... The criminal case in the proceeding in G.R. Case No.123 of 1993 relates to an offence of criminal trespass, theft, mischief and abatement and the civil matter pertains to the question of surrender. So, both the matters cannot be equated."
17. In P. Jayappan v. S.K. Perumal, , the Apex Court has held as follows:
"It may be that in an appropriate case the criminal court may adjourn or postpone the hearing of a criminal case in exercise of its discretionary power under Section 309 of the Code of Criminal Procedure if the disposal of any proceeding under the Act which has a bearing on the proceedings before it is imminent so that it may lake into consideration the order to be passed therein. Even before the discretion should be exercised judicially in such a way as not to frustrate the object of the criminal proceedings."
18. In Appeejay Private Ltd. v. Raghavachari Narasinhan, 1997 (3) Crimes 297, a Division Bench of the Calcutta High Court has held thus:-
"The Criminal Court is not competent to decide a dispute of purely civil nature or a question of title involved in any dispute. In view of the position of law that the Criminal Court has no jurisdiction to decide a dispute of civil nature relation to title, the decision of a competent civil court relating to a question of title will be relevant under Section 40 of the Evidence Act. But it is not that all sorts of decisions of the civil court are binding on the criminal Court. Taking a consistent view of the provisions of law including the Sections 40 to 43 of the Evidence Act and the different decisions of the Supreme Court it can be stated by way of summarisation that ordinarily a civil court decision is not binding on the criminal court nor is a Criminal Court decision binding on the civil court. A decision of a civil court relating to title is however binding on the parties. But the decisions on other matters which will fall within the jurisdiction of the criminal court to determine for the disposal of any particular criminal case will be a matter for the criminal court to decide on the basis of evidence that may be adduced before it irrespective of whether such question was earlier decided by any Civil Court in any civil action. It is also the law that there is no constitutional or legal bar in simultaneous proceedings."
19. In Gnanasigamani v. Vedamuthu, A.I.R.1927 Mad. 308, it is held as under:-
"In the criminal court guilt must be established beyond all possibility of doubt, but the civil Court weighs probability. If the civil case is stayed pending the criminal case, it will have practically the same result as staying neither case; for ordinarily the criminal case will be finally concluded in three to six months, and the civil case in three to six years; so that delaying the civil case will have little effect. If the criminal case is stayed pending the civil case, a person presumably innocent, is left for years with a criminal case hanging over him; and if ultimately proved to be guilty he will have successfully stayed off his well merited punishment for an equal period. In either view the stay of the criminal proceedings is objectionable. Therefore, the least undesirable course is to adhere to the main principle and to let both cases proceed with all possible dispatch."
20. In Ashru Bindu Ray v. Chittaranjan Banerjee, 1978 Crl.LJ.557, the Calcutta High Court has observed as follows:-
"There is no doubt that stay is a matter of discretion but in exercising this discretion the court has to keep in view the legal principles laid down by the different courts. While simultaneous trials may cause difficulties there is nothing wrong in them essentially when the laws permit them."
21. In Ranganayakalu v. Gopala, , this Court has held thus:-
"In the civil suit the issues involved are not identical with those arising in the criminal case. The criminal case is confined to the question of criminal misappropriation Public interests require that criminal court proceedings should be expeditiously disposed of and I need not add that the spectacle of a criminal trial pending for years till the civil suit has undergone the weary waiting period of 3 years in the original side of the High court and then a period of three years in appeal and then another appeal to the Supreme Court, involving another 3 or 4 years is not calculated to raise public morale in the efficacy and efficiency of the administration of justice."
22. In Medchl Chemicals & Pharma (P) Ltd. v. Bilogical E. Ltd, 2000 SCC (Cri) 615, the Apex Court has held thus:-
"The criminal law remedy and civil law remedy are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import."
23. In the light of the above well laid principles, let us now go into the question posed before this Court in this petition.
24. As laid down in the decisions cited supra, there is no difficulty in accepting the principle that the Court has got powers to postpone the trial under Section 309, Cr.P.C. under some compelling circumstances till such period as it may deem fit. Therefore, we have to decide whether the orders impugned staying the trial or postponing the trial till the disposal of the civil suit are under any of the compelling circumstances.
25. To deal with the above situation, the main consideration by this Court is to take note of the issues that may arise for consideration before the respective Courts. In other words, whether the issue before the criminal Court and civil Court are identical and the decision in the civil Court will have any bearing on the finding given by the criminal Court with reference to the offence committed by the accused.
26. In that view of the matter, let us now deal with the facts of this case.
27. The complainant received a cheque for Rs. 1,00,000 dated 15.2.1998 from the accused and the same was presented and got it returned with the endorsement "funds insufficient". Therefore, on 19.2.1998 the complainant issued a statutory notice as contemplated under Section 138 of the Negotiable Instruments Act demanding the accused to pay the cheque amount within 15 days from the date of receipt of the notice. It is not disputed that the said notice was received on 21.2.1998 by the accused. Despite the receipt of the notice, no payment was made and therefore, the complainant filed a complaint on 9.3.1998 within the stipulated period.
28. Though it is contended by the accused that he sent a reply on 2.3.1998, according to the complainant, no reply was received. However, there is no dispute in the fact that the cheque amount was not paid, despite the receipt of the statutory notice within 15 days. Therefore, the complainant was constrained to file a complaint within 30 days after expiry of the grace period of 15 days. That was how the complainant filed a complaint on 9.3.1993.
29. According to the accused, he filed a suit in O.S.No.198 of 1998 on the file of the District Munsif, Thanjavur on 9.3.1998 for rendition of accounts against the complainant. As admitted by the accused/respondent, the Issues were framed before the civil Court on 12.10.1998 in the following words:
The above issues may not be relevant for the question which may arise for consideration before the criminal Court whether the accused has committed the offence under Section 138 of the Negotiable Instruments Act.
30. As noted above, the complainant has to establish during the course of trial before the criminal Court that the accused issued a cheque towards the discharge of liability and the same has been dishonoured on presentation and despite the receipt of notice, no payment was made by the accused. Therefore, the question posed before the criminal court is not identical to the issue that has been framed before the civil Court.
31. Moreover, it is noticed that the civil case has been filed, admittedly, only on 9.3.1998, that too, after receipt of statutory notice dated 19.2.1998 under Section 138 on 21.2.1998. The cause of action would arise on the expiry of 15 days time given for payment. Accordingly, in the present case, the cause of action has arisen on the expiry of 15 days from 21.2.1998, the date of receipt of notice.
32. As stated above, the suit has been filed on 9.3.1998 only after the cause of action has arisen. Thus, it is clear that the suit has been filed for directing the defendant for rendition of accounts only after the process of prosecution has started on the issuance of statutory notice on 19.2.1998. Therefore, it cannot be contended that the suit has been filed earlier to the issuance of summons in the criminal complaint and as such, the criminal case should be stayed.
33. Under those circumstances, it can be safely held that the continuance of criminal trial has nothing to do with the civil proceedings. Furthermore, in the light of the facts of the present case, the action taken by the complainant in criminal court and action taken by the accused in civil Court are of different content and import, with a distinct consequence.
34. As laid down by the various Courts, as noted above, the primary object of criminal prosecution is to punish the offender for the offences committed. But, the present civil action has been resorted to by the accused, not for punitive purpose, but for establishment of civil rights of the parties, provided there is cause of action for such action.
35. It is settled law that on the same set of facts, the case may give rise to initiation of proceedings before civil and criminal Courts simultaneously. What is required in such a situation is the facts of the case must disclose the presence of the essential ingredients necessary for the offences complained of, besides furnishing cause of action with relevant materials for the establishment of the civil right.
36. In the instant case, the civil suit has been initiated for rendition of accounts. But, the complainant initiated criminal case to punish the person for his dishonest act of issuing a cheque without sufficient money and non payment of the cheque amount despite receipt of notice.
37. Moreover, the contention of the accused that there is no legal enforceable liability, especially when the cheque has been given as security cannot be accepted at this stage, since under Section 139 of the Negotiable Instruments Act, it has to be presumed that once the cheque has been signed by the accused, the same was issued towards the discharge of liability. But, of course, the said presumption can be rebutted by the accused by producing the relevant materials.
38. In this case, the question of criminal liability to be decided in the private complaint is entirely different from the issue framed in the civil suit. In other words, one has no bearing on the other.
39. Moreover, as decided by this Court as well as the Supreme Court, a finding on a question of fact arrived at by a civil Court is not binding on a criminal Court in a criminal prosecution where the criminal Court is required to decide the same question of fact. In other words, the criminal Court is to decide a particular question of fact on the basis of the materials produced before it. Similarly, the civil Court also in the light of the materials available on record before it is to decide about the particular question of fact.
40. In this case, the issue in the civil Court is to whether the accused would be entitled to the rendition of accounts. But, in a criminal proceedings, it is to be decided whether the accused has to be punished for the offence under Section 138 of the Negotiable Instruments Act. The question whether the cheque was issued towards liability or as a security is to be decided only by the criminal Court only during the course of trial.
41. The incidental question relating to the liability that may arise for consideration in the civil suit would not affect the right of the complainant to establish before the criminal Court that the accused issued a cheque towards the discharge of liability and the cheque was dishonoured and despite the receipt of notice, there was no payment by the accused. Therefore, the question before the criminal Court is entirely different from the issue framed by the civil Court.
42. In the criminal case, the Court is only concerned with the materials produced by the parties to find out whether the cheque has been issued towards the discharge of liability and the cheque amount has not been paid within 15 days from the date of receipt of the notice. To find out the truth, the criminal Court has to give opportunity to both the complainant and the accused with reference to the Act.
43. Moreover, Section 138 of the Negotiable Instruments Act being a summons case is to be tried summarily. The purpose of making the said provision as summons case to be tried summarily is to see that the criminal case is disposed of speedily. That apart, it is settled law, as between civil and criminal proceedings, the criminal matters should be given precedence. Moreover, the civil suit often drags on for years and as such, it is undesirable that a criminal prosecution should wait till the disposal of the civil suit.
44. 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 fair and impartial trial.
45. As indicated in the various decisions cited supra, the question of title to the property may be a relevant factor to be considered by civil Court which may have a bearing to the offences to be tried by the criminal Court which would relate to the title of the property in question.
46. That question does not arise in this case. According to the complainant, the accused, as admitted by him in the Confirmation Deed dated 2.12.1997, issued a cheque for Rs.1,00,000 towards the discharge of second instalment liability and the same was dishonoured on 16.2.1998 and the non payment of the cheque amount is the subject matter of the criminal prosecution, on the other hand, the suit which has been filed by the accused, that too after receipt of the statutory notice, would not relate to the identical question which is posed before the criminal Court.
47. Under those circumstances, I am of the view that both the Courts have committed a grave illegality in invoking Section 309, Cr.P.C. by staying or postponing 'the criminal case till the disposal of the civil suit.
48. If the above illegal orders are allowed to stand, then there is no possibility of disposal of criminal case, since the final decision in the civil Court with reference to the issue of rendition of accounts would be arrived at after long number of years as the said issue in the civil Court may be taken to the appellate Courts also in the form of appeal suit and second appeal and in that event, the criminal case would not be disposed of early, thereby defeating the purpose of the summary speedy trial in violation of Article 21 of the Constitution of India.
49. Though the orders passed by the trial Court and the orders of the revisional Court are normally not interfered with under Section 482, Cr.P.C., especially when the second revision is barred, in the light of the decisions rendered by the Supreme Court in Jitender Kumar v. State of Delhi, 1999 SCC (Cri) 77 and Krishnan v. Krishnaveni, 1997 SCC (Cri) 544, when there is a grave illegality or abuse of process of the court in the orders impugned passed by the revisional Court, it is the duty of the High Court to have it corrected under Section 482 Cr.P.C. lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process, this Court which is preserved with inherent power would be justified to exercise the said power in the appropriate case.
50. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial on some reason or other.
51. In this case, the filing of the civil suit after receipt of the statutory notice and filing of application under Section 309, Cr.P.C-, that too, after 14 hearings before the trial Court, would clearly indicate that the accused wanted to drag on the matter without allowing the complainant to prove his case.
52. In view of the above discussion, I am constrained to hold that the impugned orders are illegal and the same are liable to be set aside and accordingly set aside. The trial Court is directed to go on with the trial and finish the same within three months from the date of receipt of a copy of this order.
53. Since the learned Judicial Magistrate Tmt. N.Umamaheswari has passed an order under Section 309 Cr.P.C. by exceeding her limit by going into the merits of the case also. I deem it fit to direct some other Judicial Magistrate to deal with this matter. Therefore, the Chief Judicial Magistrate, Thanjavur is directed to take up the matter and proceed with the trial or to direct some other Judicial Magistrate to go on with the trial of this case and dispose of the same within the period as mentioned above.
54. With the above observations, the petition is allowed.
55. Before parting with this case, I shall make a mention of this. Of late, it is noticed that the criminal Courts, that too in summary cases, dealing with Section 138 of the Negotiable Instruments Act, would liberally invoke Section 309, Cr.P.C. by staying or postponing the proceedings before them to indefinite period under the pretext that the similar issues are pending in the civil Courts. This approach, in my view, is not warranted, since the criminal Courts should avoid staying the proceedings before them, as it would amount to defeating the scope of Article 21 of the Constitution of India, which would provide for speedy trial. Moreover, it is settled law that the criminal matters should be given precedence between the civil and criminal proceedings. That apart, the purpose of introduction of Sections 138 to 142 of the Negotiable Instruments Act to be tried in a summary way is to see the matters relating to the cheque transactions are to be settled in the quickest possible way. If Section 309 Cr.P.C. is liberally invoked under the pretext of pendency of the civil suit, it would not only amount to shirking our duty to have an early disposal of summary trial, but also preventing the parties to the criminal proceedings from getting the relief from the criminal Courts. As mentioned above, the criminal law remedy and civil law remedy are not mutually exclusive but clearly coextensive. If the criminal case is stayed pending civil case for indefinite period, or till the disposal of civil case, it would affect both the parties. A person who is presumably innocent has to wait long number of years with a criminal case hanging over him before he gets an acquittal. If ultimately the accused person is proved to be guilty after long number of years, the accused person successfully escaped for the said period from the punishment being imposed upon him and in the meantime, the complainant has to wait for long period to get the fruits. In either cases, the stay of the criminal proceedings is not desirable. Therefore, the criminal Courts should lake into account the purpose of the introduction of the Act as well as the purport of the Article 21 of the Constitution and avoid invoking Section 309, Cr.P.C. by staying or postponing the case for an indefinite period, that too till the disposal of the civil case.