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2025 DIGILAW 1339 (GAU)

Akhil Chandra Kalita S/o Late Suren Chandra Kalita v. Sankar Kumar Dey S/o Late Nirmal Chandra Dey

2025-08-12

MANISH CHOUDHURY

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JUDGMENT : MANISH CHOUDHURY, J. This criminal revision petition under Section 438 read with Section 442, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred seeking stay/suspension of criminal proceedings of a complaint case, C.R. Case no. 17 NI/2018, presently pending before the Court of Sub-Divisional Judicial Magistrate [M], Rangia [hereinafter referred to as ‘the Trial Court’, for short]. 2. The prayer for such stay/suspension of the proceeding is made till disposal of a civil suit, Title Suit no. 318/2018, also pending presently before the Court of Civil Judge [Senior Division] No. 2, Kamrup [Metro] at Guwahati [hereinafter referred to as ‘the Civil Court’, for short] between the same parties. 3. The ground urged for the stay/suspension is that the two proceedings are on the same subject-matter and the question of genuineness of a document, namely, a Deed of Agreement for Sale of Land dated 29.12.2015 is the foundation of the civil suit as well as the criminal proceeding. 4. The respondent no. 1 herein as the complainant has instituted the complaint case, C.R. Case no. 17 NI/2018 before the Trial Court on the ground that two cheques issued for amounts of Rs. 10,00,000/- and Rs. 5,00,000/- respectively on 10.05.2018 by the petitioner from an account maintained by him at Allahabad Bank, Rangia Dongpar Branch, Rangia stood dishonoured on its presentation for collection by the respondent no. 1-complainant at his Bank. In the complaint, the complainant has stated that when he presented the two cheques for collection at his account maintained at UCO Bank, Rangia Branch, the same were returned unpaid on the ground of insufficiency of fund in the bank account of the petitioner. A demand notice was, thereafter, issued to the petitioner on 15.06.2018 calling upon the petitioner to pay the total amount of the two cheques, Rs. 15,00,000/- within a period of fifteen days from the date of receipt of the demand notice. 5. In the complaint, the complainant has also asserted that the said demand notice was duly served upon the petitioner on 18.06.2018. When the petitioner failed to pay the amount of Rs. 15,00,000/- pertaining to the two dishonoured cheques within a period of fifteen days from 18.06.2018, the cause of action for filing the complaint under Section 138 of the Negotiable Instruments Act, as amended, arose on 03.07.2018, that is, after expiry of fifteen days from the date of service of the notice. 15,00,000/- pertaining to the two dishonoured cheques within a period of fifteen days from 18.06.2018, the cause of action for filing the complaint under Section 138 of the Negotiable Instruments Act, as amended, arose on 03.07.2018, that is, after expiry of fifteen days from the date of service of the notice. The Trial Court took cognizance of the offence under Section 138, Negotiable Instruments Act, 1881, as amended [‘the N.I. Act’, for short] and issued process for appearance of the petitioner to stand in trial as an accused. 6. In the course of the proceedings of C.R. Case no. 17 NI/2018, the petitioner as accused filed a petition, Petition no. 207/2021 on 25.01.2021 with a prayer to stay/suspend the proceedings of C.R. Case no. 17 NI/2018 on the ground that a civil suit, Title Suit no. 318/2018 in respect of the same subject-matter is pending between the parties before the Civil Court. The Trial Court after hearing both the sides, by an Order dated 28.11.2022, rejected the prayer made in Petition no. 207/2021. The Trial Court in its Order has observed that there is no bar in proceeding with a criminal case even if a civil suit is pending between the same parties. The Trial Court has observed that the complaint case, C.R. Case no. 17 NI/2018 has arisen out of dishonour of cheques and the same could only be adjudicated in the proceedings undertaken by the complainant by filing a complaint. The Trial Court has further observed that there is neither any procedure for stay/suspension of the proceedings of C.R. Case no. 17 NI/2018 nor any anomaly in the proceedings. Hence, there is no scope for allowing the prayer by the petitioner as the accused in Petition no. 207/2021 dated 25.01.2021. 7. Aggrieved by and dissatisfied with the Order dated 28.11.2022, the petitioner carried the matter in revision to the Court of learned Additional Sessions Judge, Rangia [‘the Revisional Court’, for short] vide Criminal Revision Case no. 02/2023. Before the Revisional Court, the petitioner has renewed his prayer for stay/suspension and placed reliance in a Judgment of this Court in Criminal Petition no. 446/2024 [Pranabjyoti Dutta vs. Chief Branch Manager, SBI] . 02/2023. Before the Revisional Court, the petitioner has renewed his prayer for stay/suspension and placed reliance in a Judgment of this Court in Criminal Petition no. 446/2024 [Pranabjyoti Dutta vs. Chief Branch Manager, SBI] . The Revisional Court after considering the submissions of the parties and taking note of the ratio laid down in the Judgment relied on, has come to a finding that the case under the N.I. Act would stand on a different footing as it provides for punishment and fine vis-à-vis the civil suit which provides for no punishment as the remedy is civil in nature. The Revisional Court has not found any infirmity in the Order dated 28.11.2022 for interference. Resultantly, Criminal Revision Case no. 02/2023 has been dismissed by a Judgment dated 12.12.2024. 8. Being aggrieved by and dissatisfied with the Judgment dated 12.12.2024, the instant revision petition has been preferred. 9. The learned counsel for the petitioner has contended that the civil suit, Title Suit no. 318/2018 is at an advanced stage as it is fixed for cross-examination of the defendant’s witnesses [DWs] and in the civil suit, the petitioner herein is the plaintiff. He has submitted that the civil suit is likely to be disposed of shortly once the cross-examination of the defendant’s witnesses [DWs] is over and if the proceedings in C.R. Case no. 17 NI/2018 is not stayed/suspended and is allowed to proceed, there would be multiplicity of proceedings and conflicting findings of the two courts. He has also referred to a decision of the Court in Abhash Chandra Dey vs. Durga Sah , reported in 1989 [1] GLR 7 8. 10. The civil suit, Title Suit no. 318/2018 has been instituted seeking a declaration that the alleged Deed of Agreement for Sale of Land dated 29.12.2015 presented by the defendant therein, that is, the complainant in C.R. Case no. 17 NI/2018 is false, fabricated, illegal, null and void, inoperative in law, and not binding upon the plaintiff. A declaration that there is no such Agreement for legally enforceable debt or liability on the part of the plaintiff has also been sought for. In the plaint, the plaintiff has alleged that the two cheques were obtained forcibly from the plaintiff by the defendant with the assistance of a group of anti-social elements. 11. A declaration that there is no such Agreement for legally enforceable debt or liability on the part of the plaintiff has also been sought for. In the plaint, the plaintiff has alleged that the two cheques were obtained forcibly from the plaintiff by the defendant with the assistance of a group of anti-social elements. 11. In Abhash Chandra Dey [supra], this Court has observed that in an appropriate case, an order to suspend/stay of criminal proceedings can be made to avoid multiplicity of proceedings. The Court has also observed that there is no doubt that criminal proceedings should be expeditiously decided and may not ordinarily be stayed. It is only in an exceptional case, an order for suspension/stay should be passed. 12. Reverting back to the facts of the case in hand, it is noticed that the complainant in C.R. Case no. 17 NI/2018 had earlier served a legal notice upon the petitioner on 06.06.2017 asserting that a Deed of Agreement for Sale of Land was executed on 29.12.2015 for sale of a landed property described therein. It was brought to notice that as per the said Agreement for Sale of Land, the petitioner showed the location of the landed property, agreed upon by the parties in the Agreement, at Rangia Ward no. 7, Gurukuchi Road within Rangia Municipality. But, as per the land revenue records, the landed property was actually situated at within the periphery of Dakshin Sitara village. By the said notice, the petitioner was put on notice to register the landed property by preparing a Sale Deed in favour of the complainant within a month or else, the complainant would be compelled to file a suit before the concerned court. 13. In the complaint of C.R. Case no. 17 NI/2018, the complainant has alleged that when the petitioner refused to hand over the possession of the landed property for which the Agreement for Sale of Land was made, the complainant realised that he was deceived by the petitioner and he immediately asked the petitioner to return the amount he had paid as advance consideration for purchase of the landed property. The two cheques were issued by the petitioner thereafter. 14. It is a settled proposition that mere institution of civil proceedings cannot be a ground for quashing of a criminal proceeding or to hold that the dispute is merely a civil dispute. The two cheques were issued by the petitioner thereafter. 14. It is a settled proposition that mere institution of civil proceedings cannot be a ground for quashing of a criminal proceeding or to hold that the dispute is merely a civil dispute. The assertions made in the complaint of C.R. Case no. 17 NI/2018 apparently fulfil the requirements of instituting the complaint for the offence under Section 138 of the N.I. Act. The power of quashing a complaint or FIR should be exercised sparingly and with care and circumspection and while exercising the inherent power, the Court is to assume the averments and allegations in a complaint to be true and correct, save in exceptional cases where non-interference would result in miscarriage of justice. 15. As regards litigations pending before a court of criminal jurisdiction and a court of civil jurisdiction, a Constitution Bench of the Hon’ble Supreme Court in the case of Iqbal Singh Marwah vs. Meenakshi Marwah, [2005] 4 SCC 370 , has answered the issue in the following manner :- 32. 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 the old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Madras [ 1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cri LJ 1019] give a complete answer to the problem posed : [AIR p. 399, paras 15-16] 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. 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. 16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. 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 a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. 16. In this connection, it is also apt to refer to the following observations made in the case of M. Krishnan vs. Vijay Singh and another , reported in [2001] 8 SCC 645 , :- 5. …… in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe : In my view, unless and until the civil court decides the question whether the documents are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous. 17. Having regard to the events enumerated above and the subject-matter of the two lis in the form of Title Suit no. 318/2018 and C.R. Case no. 17 NI/2018, this Court is of the considered view that there is no infirmity in the reasonings assigned by the Trial Court in its Order dated 28.11.2022 and the Revisional Court in its Judgment dated 12.12.2024. This Court does not find any reason, much less good and sufficient reason, to stay/suspend the proceedings of the complaint case, C.R. Case no. 17 NI/2018 merely for the reason that the proceedings in Title Suit no. 318/2018 is pending before the Civil Court. 18. The instant criminal revision petition is filed on 6 th August, 2025 to assail the Judgment dated 12.12.2024. As per Article 131 of the Limitation Act, 1963, a petition for revision of an order under the Code of Criminal Procedure is to be preferred within a period of ninety days. 19. In the light of the above discussion and for the reasons recorded therein, this criminal revision petition is found not merited. Consequently, the same is liable to be dismissed. It is accordingly, dismissed.