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2019 DIGILAW 165 (KAR)

YALLAPPA v. SHRIRAM TRANSPORT FINANCE COMPANY LTD

2019-01-11

H.P.SANDESH

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JUDGMENT H.P. Sandesh, J. Heard the petitioner's counsel and the respondent's counsel. 2. The brief matrix of the case is that the complainant has filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (for short, the ‘Act’) before the trial Court contending that his company is engaged in the vehicle finance business in the name and style of Shriram Transport Finance Company Limited. The petitioner has availed loan in the year 2010 and he did not pay the amount and has issued a cheque dated 27.11.2012 for an amount of Rs.80,000/- and when the said cheque was presented, the same was returned with an endorsement ‘funds insufficient’. The petitioner before this Court invoking Section 482 of Cr.P.C. sought for an order to quash the proceedings of initiating the proceedings against the petitioner. The main grounds urged before this Court are that the Negotiable Instrument Act is quasi in nature and the Court below ought to have considered that arising out of the same transaction already the complainant has obtained arbitration award and also filed execution case which is pending. In order to harass the petitioner, a false complaint is filed and two proceedings cannot be maintained for the same cause of action and the Court below instead of taking cognizance ought to have rejected the complaint. 3. The counsel appearing for the petitioner has reiterated the very same grounds and contends that there cannot be two proceedings and the complainant has already obtained an award under the arbitration proceedings and the present complaint is also filed in respect of the very same transaction and prayed this Court to quash the proceedings. 4. 3. The counsel appearing for the petitioner has reiterated the very same grounds and contends that there cannot be two proceedings and the complainant has already obtained an award under the arbitration proceedings and the present complaint is also filed in respect of the very same transaction and prayed this Court to quash the proceedings. 4. Per contra, the learned counsel appearing for the respondent in his argument contends that the said proceedings initiated in respect of a loan transaction only and the petitioner herein has approached for full and final settlement and when the same is negotiated as full and final settlement, he has issued a cheque for an amount of Rs.80,000/- and when the said cheque was presented, the same was returned with an endorsement 'insufficient funds' and thereafter a legal notice was issued and the petitioner did not give any reply to the notice and when the cause of action assigned to initiate the proceedings, a complaint was filed and the same is well within the time and there is no irregularity in issuing the process to the petitioner and hence there are no grounds to invoke Section 482 of Cr.P.C. to quash the proceedings. 5. After having heard the arguments of the petitioner's counsel and the respondent's counsel, this Court has to examine whether this Court can exercise powers under Section 482 of Cr.P.C. 6. The main contention of the petitioner is that two parallel proceedings have been initiated and an arbitration award is obtained and in respect of the very same loan transaction there cannot be two proceedings. The contention of the respondent herein is that the cheque is issued when the matter has been settled for full and final settlement to the tune of Rs.80,000/- and when the same is presented, the same was returned with an endorsement 'insufficient funds' and hence legal course is initiated against the petitioner and the cheque was dishonored for the reason that 'insufficient funds' and on perusal of the records it discloses that the complaint was filed on 26.12.2012 before the JMFC, Haveri, but the matter was transferred to JMFC, Savanur and the JMFC, Savanur has taken cognizance vide order dated 19.03.2015 considering the contents of the complaint. The contention of the petitioner that there are two parallel proceedings and the counsel admits that arbitration award was passed in 2013 and this proceedings were initiated in 2012 itself immediately after the bouncing of the cheque and only this Court has to examine whether any illegality in issuing process and the Court below considering the complaint averments and also the documents produced before the Magistrate, has taken the cognizance and issued the process against the petitioner. 7. It is not the case of the petitioner that the Court below has committed an error in issuing cognizance, the only contention is that there are two proceedings and these issues of question of fact can be raised before the trial Court and this Court cannot consider the defence in 482 proceedings and the petitioner can raise all these contentions before the trial Court and hence I do not find any force in the contention of the petitioner's counsel to exercise powers under Section 482 of Cr.P.C. to quash the same. 8. I would like to quote the judgment of the Hon'ble Apex Court reported in the case of Vishnu dutt Sharma Vs. Daya Sapra, (2009) 13 SCC 729 , wherein it is held that creditor to maintain both civil and criminal proceedings particularly where relevant statutory provisions i.e. Section 139 of the Act impose reverse burden on the accused. The Hon'ble Apex Court also in the judgment reported in SCC p.769 para 11 in the case of Swaroopa Rani Vs. Hari Narayana, wherein it was categorically held that it is well settled that in a given case civil case and criminal proceedings can proceed simultaneously. 9. I would like to refer to the judgment of the Hon'ble Apex Court reported in the case of M.S.Sheriff Vs. State of Madras, (1954) AIR SC 397, wherein it was held that the criminal matter should be given precedence proceedings when civil suit and criminal case both are pending. 9. I would like to refer to the judgment of the Hon'ble Apex Court reported in the case of M.S.Sheriff Vs. State of Madras, (1954) AIR SC 397, wherein it was held that the criminal matter should be given precedence proceedings when civil suit and criminal case both are pending. As regards permissibility of conflict in decisions, it was held that '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 purpose, such as sentences or damages' and further observed in the judgment that if a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding. This question came up for consideration in K.G.Premshanker Vs. Inspector of Police, wherein the Hon'ble Apex Court held that, what emerges from the aforesaid discussion is that the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; in civil suits between the same parties, principle of resjudicata may apply; in a criminal case, Section 300 Cr.P.C. makes provision 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 and further observed 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. 10. The Hon'ble Apex Court in the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another reported in SCC pp.389-90, para 32, it was categorically held that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence, when in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. The Hon'ble Apex Court also in the judgment of P.Swaroopa Rani Vs. Civil cases are decided on the basis of preponderance of evidence, when in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. The Hon'ble Apex Court also in the judgment of P.Swaroopa Rani Vs. M.Hari Narayana reported in SCC p.769, para 11 it has observed that it is settled in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. 11. In the light of principles laid down in the judgments referred both by the Hon'ble Apex Court and also the judgment of the High Court in the case of Vishnu Dutt Sharma Vs. Daya Sapra, it is clear that the resjudicata is not applicable in the facts and circumstances of the case and both the proceedings are distinguished and both civil proceedings and criminal proceedings can proceed simultaneously and it is also settled law that the criminal case depends upon the proof behind reasonable doubt and in civil case, the same rests upon preponderance of probabilities and in this case no doubt two proceedings are taken place, one under the arbitration and another under Section 138 of the Act and when the complaint is filed for the offence under Section 138 of the Act based on the cause of action arisen to file the complaint since the accused did not comply the demand made by the complainant and when he did not make the payment, the cause of action arisen to initiate the proceedings under Section 138 of the Act. 12. The scope of Section 482 of Cr.P.C. is not a rule and the same is an exception and only in order to prevent injustice and miscarriage of justice, the Court can exercise powers under Section 482 of Cr.P.C. and the Court cannot consider the defence while considering the petition under Section 482 of Cr.P.C. and the petitioner is at liberty to raise all these defence before the trial Court. 13. In view of the discussions made above, I proceed to pass the following: ORDER The petition is dismissed.