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2006 DIGILAW 534 (CAL)

AJIT NAIN v. CEAT FINANCIAL SERVICES LTD.

2006-08-23

ASHIM KUMAR ROY

body2006
( 1 ) THE instant criminal revision arises out of a proceeding under section 138 of the Negotiable Instruments Act, pending before the learned metropolitan Magistrate, 12th Court, Calcutta. ( 2 ) THE brief facts of the case are as follows: the accused, the petitioner herein entered into a hire purchase agreement with the complainant company, the opposite party herein for purchasing office equipments. The accused in discharge of his liability towards the outstanding dues issued a cheque bearing No. 803027 dated February 1,1999 for Rs. 8,733/- drawn on Hongkong Sanghai Banking Corporation Ltd. , calcutta. The complainant during the validity of the said cheque presented the same to the banker on which the cheque was drawn through his banker for encashment, but the said cheque was returned unpaid with the endorsement 'the payment stop by drawer'. The complainant immediately issued a notice demanding payment of cheque amount but even in spite of receipt of such notice no payment was made within the stipulated period. ( 3 ) HEARD Mr. Amp Chatterjee, Advocate appearing for the petitioner and mr. Tirthankar Ghosh, Advocate appearing for the opposite party. Perused the materials on record. ( 4 ) MR. Chatterjee, Advocate appearing on behalf of the petitioners draws the attention of this Court to the decree dated May 29, 2000 passed by the learned Civil Judge, Junior Division, Sealdah in connection with the Title suit No. 734 of 1999, as well as the copy of the plaint in connection to the said suit being Annexures C and D to the revisional application and submitted that the said suit has been decreed ex parte and amongst other in terms of the said decree the opposite party therein is not entitled to realise any payment against total 12 post-dated cheques mentioned in the schedule which includes the cheque involved in the impugned proceedings under section 138 of the N I Act. According to Mr. Chatterjee, Advocate in view of the decision of the Civil Court it cannot be said the said cheque in question has been drawn/issued in discharge of any legal debt and liability. Mr. Ghosh, advocate although has not disputed the factual positions as contended by mr. According to Mr. Chatterjee, Advocate in view of the decision of the Civil Court it cannot be said the said cheque in question has been drawn/issued in discharge of any legal debt and liability. Mr. Ghosh, advocate although has not disputed the factual positions as contended by mr. Chatterjee and the decree as aforesaid but submitted that such decree will not operate as a bar in prosecution of the petitioner in the impugned proceedings and as such the instant criminal revisional application is liable to be dismissed. ( 5 ) IN the plaint of the aforesaid suit the petitioner, the plaintiff therein, prayed for following reliefs as against the defendant, the opposite party herein - (i) For a declaration that there was no and there is no hire purchase agreement in respect of two computers not supplied by the defendant no. 2, to the plaintiff. (ii) For a declaration that no amount is due and payable by the plaintiff to defendant No. 1, for defendant No. 2. (iii) For a declaration that defendant No. 1, is not entitled to realise payment against 12 post-dated cheques mentioned in schedule herein below. (iv) Permanent injunction restraining defendant No. 1, from enforcing any of the 12 cheques, (v) Receiver, injunction, cause and such other reliefs to which the plaintiff is entitled; (vi) For all costs of the suits. ( 6 ) FROM perusal of the schedule of the plaint I find the cheque in question,. e. the cheque bearing No. 803027 dated February 1, 1999 for Rs. 8,733/- was among one of the 12 cheques which was the subject-matter of the suit. ( 7 ) IT further appears from the decree relates to the aforesaid Title Suit no. 734 of 1999 the learned Court passed the following orders : "i hold this plaintiff is able to prove his case. C. F. paid is correct. Hence it is ordered, that the suit be and the same is decreed ex parte. Plaintiff do get a decree for declaration that no H. P. agreement in respect two computers was held which were not supplied at all by the defendant no. 2 to plaintiff. It is also declared that no amount is due and payable by the plaintiff to defendant No. 1 or defendant No. 2. Plaintiff do get a decree for declaration that no H. P. agreement in respect two computers was held which were not supplied at all by the defendant no. 2 to plaintiff. It is also declared that no amount is due and payable by the plaintiff to defendant No. 1 or defendant No. 2. It is declared that defendant No. 1 is not entitled to realise payment against 12 post dated cheques mention in the schedule. Defendant No. 1 is permanently restrained from enforcing any of 12 cheques mentioned in schedule. " ( 8 ) ACCORDING to Mr. Chatterjee, Advocate the aforesaid ex parte decree has reached its finality which has not been disputed by Mr. Ghosh. The only question arose in this case is whether that decree passed in the Civil Court in connection with the case No. 734 of 1999 will operate as a bar in prosecution of the petitioner under section 138 of the N I Act. In this connection the decision of the Hon'ble Supreme Court in the case of K. G. Premshankar vs. Inspector of Police and Anr. , reported in 2003 SCC (Cri) 223, is very much relevant in the said case the Apex Court held as follows: - "what emerges from the aforesaid discussion is - (i) the previous judgment which is final can be relied upon as provided under sections 40 to 43 of the Evidence Act; (ii) in civil suits between the same parties, principle of res judicata may apply; (iii) in a criminal case, section 300 Cr. PC makes provisions 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; (iv) if the criminal case and the 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. 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 matters decided therein. 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 matters 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 of 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 of the facts of each case. " ( 9 ) IN view of the decree passed in Title Suit No. 734 of 1999 where the present petitioner is the plaintiff and the opposite party No. 1 is the defendant no. 1, by a competent Civil Court which has reached its finality, I am of the opinion the aforesaid decree whereby the present opposite party has been restrained from enforcing payment against the cheque in question as the civil Court held that the opposite party is not entitled to realise any payment against the said cheque as no amount is due and payable by the plaintiff,. e. the petitioner herein to the defendant No. 1,. e. the opposite party herein, there cannot be any legally enforceable debt and liability as against the cheque in question as such no prosecution under section 138 of the N I Act as far as that cheque is concerned is legally maintainable. Hence, the proceeding is quashed. The application stands allowed. Application allowed.