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2018 DIGILAW 2137 (RAJ)

Chiranjilal Gupta v. State of Rajasthan

2018-10-25

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT : Kanwaljit Singh Ahluwalia, J. The present petition has been filed under Section 482 Cr.P.C. to assail the order dated 25.6.2018 passed by the revisional court below whereby a direction was given to the trial court to treat the protest petition filed by the complainant as a complaint case under Chapter XV of Cr.P.C. 2. Learned counsel for the petitioner has submitted that in the present case, the complainant Pawan Gupta deceased (now represented through LR's respondent Nos. 2/1 to 2/3) had lodged FIR No.703/2005 at Police Station Jhotwara, Jaipur for the offences under Sections 420, 467, 468, 471 and 120B IPC. It is contended that in the year 2008, investigating agency submitted Final Report in negative form. Aggrieved against the same, the complainant filed a protest petition. 3. Learned counsel for the petitioner has contended that the court of Magistrate accepted the Final Report submitted in negative form and dismissed the protest petition relying upon the report of Forensic Science Laboratory. 4. Aggrieved against the same, the complainant filed a revision petition. The revisional court below after going through the entire controversy had set aside the order of Magistrate by directing the court below to proceed with the protest petition as Complaint under Chapter XV of Cr.P.C. 5. Learned counsel for the petitioner has submitted that a civil suit has also been filed by the complainant and in the said suit, an issue has been framed regarding validity of the power of attorney. Learned counsel for the petitioner has contended that once the civil court is seized of the matter, criminal proceedings should be kept in abeyance. 6. The argument raised by the learned counsel for the petitioner cannot be sustained as Constitutional Bench of Supreme Court in M.S. Sheriff vs. The State of Madras and Others, (1954) AIR SC 397, held that between the civil and criminal proceedings, precedence should be given to the criminal proceedings and same should be swift and prompt so that guilty is punished at the earliest. 7. In Iqbal Singh Marwah & Another vs. Meenakshi Marwah & Another, (2005) AIR SC 2119, another Constitutional Bench of the Supreme Court held that standard of proof required in civil cases is different as they are decided on the basis of preponderance of evidence, whereas, in criminal cases entire burden lies on the prosecution and proof beyond reasonable doubt has to be led. Para 24 of the judgment Iqbal Singh Marwah (supra) reads as under:- "24. 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 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Madras, (1954) AIR SC 397 give a complete answer to the problem posed : "(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." 8. A Full Bench of Lahore High Court in B.N. Kashyap vs. Emperor, (1945) AIR Lahore 23, held as under:- "There is no reason in my judgment as to why the decision of the civil Court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. A Full Bench of Lahore High Court in B.N. Kashyap vs. Emperor, (1945) AIR Lahore 23, held as under:- "There is no reason in my judgment as to why the decision of the civil Court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to criminal Courts to go behind the findings of the civil Court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration in this country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the criminal Court, which, unhampered by the civil Court, is fully competent to decide the questions that arise before it for its decision and where in the nature of things there must be a speedy disposal. This view has been consistently adopted by the Calcutta High Court for which see Gogun Chunder Ghose vs. Empress, Raj Kumari vs. Bama Sundari, Tarapada Biswas vs. Kalipada Ghose, Trailokyanath Das vs. Emperor. The same view has been taken by the Madras High Court in Gnanasigamani Nadar v. Vedamuthu Nadar and Pandmanabhani Ramanamma v. Appalanarasayya. It is true that a learned single Judge of that Court made certain observations in an earlier case Velayudhan Chetti which are different but they were clearly obiter and were not followed by that Court subsequently. The Calcutta view was accepted by the Patna High Court in Raghunath Singh v. Emperor. For the above reasons I have no hesitation in answering the question framed by the Division Bench in the negative. The Calcutta view was accepted by the Patna High Court in Raghunath Singh v. Emperor. For the above reasons I have no hesitation in answering the question framed by the Division Bench in the negative. I must, however, say that in answering the question I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41, Evidence Act, will have to be carefully examined." 9. Sections 40 to 44 of the Indian Evidence Act, 1972, prescribe judgment of courts of justice as to when they are relevant. Section 41 specifically states that only the judgment rendered by court exercising probate, matrimonial, admiralty or insolvency jurisdiction which determine character of the parties in rem are relevant, and can be considered by another court. 10. The finding of civil court regarding validity of power of attorney will have no bearing upon the criminal court. 11. Taking into account the dictum of Supreme Court in M.S. Sheriff (supra), the criminal case has to proceed swiftly and the same is to be decided promptly. 12. De hors of the finding of the revisional court below, the court of Magistrate is directed to treat the protest petition as Complaint under Chapter XV of Cr.P.C. and the court of Magistrate is directed to proceed with the protest petition as Complaint in accordance with the provisions of law. A further direction is issued to the court of Magistrate to conclude the trial arising out of the Complaint case within a period of nine months from the date of receipt of certified copy of this order. 13. At this juncture, learned counsel for the petitioner has submitted that the court of Magistrate had accepted the Final Report on the basis of report of FSL. 14. The report of FSL even though is admissible in evidence under Section 293 Cr.P.C., without examination of handwriting expert, the report of FSL itself is not a conclusive proof and therefore, the complainant has a remedy to demolish the credibility of the report of FSL by examining private handwriting expert as witness of the complainant. 14. The report of FSL even though is admissible in evidence under Section 293 Cr.P.C., without examination of handwriting expert, the report of FSL itself is not a conclusive proof and therefore, the complainant has a remedy to demolish the credibility of the report of FSL by examining private handwriting expert as witness of the complainant. In view of above, the present petition is disposed of.