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2011 DIGILAW 4008 (MAD)

J. Joseph Raj v. Baby Jeroma

2011-09-16

S.PALANIVELU

body2011
Judgment : 1. This Criminal Revision is preferred against the order passed by the learned Judicial Magistrate No. II, Kuzhithurai in CM.P. No. 1469 of 2007 in C.C. No. 292 of 2004, dated 14.6.2011. 2. The petitioner is accused in C.C. No. 292 of 2004 on the file of the Judicial Magistrate No. II, Kuzhithurai. This is a case of return of cheque reportedly delivered by the petitioner to the respondent under Section 138 of Negotiable Instruments Act. Earlier to the filing of the complaint, the petitioner filed a suit in O.S. No. 719 of 2004 on the file of the District Munsif Court, Kuzhithurai against the respondent praying for mandatory injunction directing him to return the cheque bearing No. 201183. In the said suit, he has also filed an application under Order 39 Rules 1 and 2 and Section 94 (c) and 151 of C.P.C, praying for temporary injunction against the respondent restraining him from realising the amount through the Bank on cheque bearing No. 201183 drawn on Mercantile Bank, Nagercoil and the proceedings against the petitioner. On 4.10.2004, the learned District Munsif granted an ad-interim injunction till 10.10.2004 and it was subsequently made absolute on 4.1.2008. There had been no appeal from the said order. 3. Pending the hearing of C.C. No. 292 of 2004, the petitioner filed a petition in Crl.O.P. (MD) No. 8179 of 2005 on the file of this Court under Section 482 of Cr.P.C, for quashing of the proceedings preferred on the private complaint in C.C. No. 292 of 2004. This Court on hearing both sides passed an order on 6.12.2006, dismissing the petition. There is no appeal from the above said order. 4. In the order of this Court, the learned Judge has observed that the ad-interim injunction passed by the Civil Court is to the effect that there shall not be any recovery proceedings at the instance of the respondent herein do not bind the respondent from filing a complaint approaching the criminal Court to punish the petitioner for the offence he has allegedly committed on account of the return of the cheque with the endorsement that there was no sufficient funds in the account of the petitioner. It is also observed therein that the interim order of the Civil Court does not debar the respondent from taking up the matter in the Criminal Court for punishing the petitioner for the return of the cheque. 5. The petitioner filed application in Crl. M.P. No. 1469 of 2011 before the learned Judicial Magistrate No. 2, Kuzhithurai, praying the Court not to proceed with the criminal proceedings in C.C. No. 292 of 2004 in view of the injunction passed by the Civil Court. The said petition suffered dismissal at the hands of the Judicial Magistrate No. 2, Kuzhithurai on 14.6.2011. Hence, this revision is filed by him. 6. Mr. C.K.M. Appaji, learned counsel for the respondent would contend that the civil Court should not have passed an order of interim injunction restraining the other party from proceeding in the judicial forum and the interim injunction order itself is not sustainable. Section 41(d) of the Specific Relief Act, 1963 reads as follows: “41 Injunction when refused: (a)… … … … (b)… … … … (c)… … … … (d)to restrain any person from instituting or prosecuting any proceeding in a criminal matter;” 7. Hence, the statutory bar contained in the Specific Relief Act for granting any injunction restraining any person from instituting or prosecuting any proceeding in a Criminal Court is squarely applicable to the facts of the present case. The civil Court should have refused to grant interim injunction under Section 41(a) of the Specific Relief Act from prosecuting a judicial Proceeding or under Section 41(d) restraining any person from instituting or prosecuting any proceeding in a criminal matter. 8. In view of the above said legal position, it has to be necessarily observed that the ad-interim injunction order passed by the learned District Munsif, Kuzhithurai in I.A. No. 935 of 2004 in O.S. No. 719 of 2004 on the file of the District Munsif Court, Kuzhithurai is not in legal bar for the respondent to proceed against the petitioner in the criminal proceeding. In such a view of this matter, the order passed by the Court below deserves to be confirmed and it is accordingly, confirmed. In the result, the Criminal Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is closed.