2012 ALL MR (Cri) JOURNAL 42
ANDHRA PRADESH HIGH COURT

G. KRISHNA MOHAN REDDY, J.

M/S. Anand Agros Limited Vs. V. Yadaiah & Anr.

Criminal Petition No.7625 of 2008

30th November, 2011

Petitioner Counsel: K.MOHAN
Respondent Counsel: S. VENKATESHWARLU

Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Complaint under - Sought to be quashed on ground that accused-petitioner filed OP under S.9 of Arbitration Act, obtained interim injunction preventing complainant/Respt.1 from proceeding with presentation of cheques before bank for encashment for a period of three months and matter referred to arbitrator - Held, interim injunction granted by Civil Court subsequent to filing of complaint against petitioner under S.138 of N.I Act by Respt.1 after due compliance with provision thereof, has effect of, nullifying that statute - Such recourse being not permissible, is to be treated as nonest - Further, findings of fact recorded by Civil Court will not have bearing on criminal case and vice-versa where standard of proof is different - If there is a dispute about ownership of a property, Criminal Court also can take all necessary measures within its ambit in that behalf before taking cognizance of the matter - Criminal petition dismissed as being without merit.

From a perusal of the Section 138 N.I. Act it is clear that when a cheque was dishonoured by a bank, the offence would be complete subject to complying with the formalities noted thereunder. In the case on hand as per the record, the 1st respondent issued the notice to the petitioner on 11.8.2006 demanding the 1st respondent to pay the cheque amount and the petitioner issued the reply notice on 28.8.2006 and thereafter he filed the O.P. and obtained the interim injunction against the 1st respondent. Since the 1st respondent complied with the provisions of Section 138 N.I. Act as per the record, the complaint for the offence under Section 138 N.I. Act is maintainable. When there is a statute to take necessary recourse for certain relief and accordingly that recourse is taken up and pursued for that relief any order passed which has the effect of nullifying that statute and the recourse is not permissible and is to be treated as non est. [Para 5,6]

Further, from the decision of the Supreme Court cited supra, it is clear that the findings of fact recorded by a Civil Court would not have any bearing as far as the criminal case is concerned and vice-versa where standard of proof is different and there is neither any statutory nor any legal principle that the findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter where both the cases are to be decided on the basis of evidence adduced therein subject to the exceptions noted. What is required is even in criminal cases all the relevant factors are to be exhaustively dealt with and proved. Suppose there is a dispute about ownership of a property that aspect is to be clearly and categorically proved taking all necessary measures and it is a misconception that the question of ownership is to be proved only in a civil court. However unless there is clear ascertainment of the fact in issue by collecting necessary material, prima facie no cognizance of the criminal case can be taken by the concerned Magistrate. The Criminal Court also can take all necessary measures within its ambit in that behalf before taking cognizance of the matter. [Para 8]

Further in the order passed in the interlocutory application no definite finding was given about the money or business dealings between the parties and it is only observed that in view of the pendency of the dispute, it is necessary to grant the interim relief. [Para 9]

For the foregoing reasons, I find no merits in the criminal petition and the same is liable to be dismissed. [Para 10]

Cases Cited:
Kishan Singh Vs. Gurpal Singh, 2010 ALL MR (Cri) 3948 (S.C.)=AIR 2010 SC 3624 [Para 7]


JUDGMENT

JUDGMENT :- This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in Calender Case No.597 of 2008 on the file of the II Additional Metropolitan Magistrate filed under Section 138 N.I. Act for bouncing of two cheques claiming that in connection with business affairs under job work agreement, the petitioner/accused issued the two cheques; one for Rs. 2.00 lakhs and another for Rs. 1.00 lakh drawn on Lakshmi Vilas Limited, Kothapet Branch, Ranga Reddy District in favour of the 1st respondent/complainant and after the expiry of the job work agreement with the 1st respondent, the petitioner entered into another job work agreement with a third party and the petitioner instructed the bank to stop the payment of those cheques under intimation to the respondent No.1 and subsequently, a notice dt. 11.8.2006 was issued by the 1st respondent to the petitioner and the petitioner gave reply to it on 24.8.2006 and after the receipt of the notice, the petitioner approached the learned II Additional Chief Judge, City Civil Court at Hyderabad and filed O.P.No. 1428 of 2006 under Section 9 of the Arbitration Act, 1996 and obtained interim injunction through order dt. 15.11.2006, preventing the 1st respondent from proceeding with the presentation of the cheques for encashing them before the bank for a period of three months subject to condition that the dispute should be referred to an Arbitrator and on 28.8.2007 the O.P. was allowed, whereas on 27.9.2006, the 1st respondent filed private complaint before the learned II Additional Metropolitan Magistrate, Ranga Reddy against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The main contention of the learned Counsel for the petitioner is that the 1st respondent filed the private complaint while the interim injunction granted by the learned II Additional Chief Judge, City Civil Court, Hyderabad in O.P.No. 1428 of 2006 was in force and as the O.P. was allowed in favour of the petitioner and the matter was referred to the arbitrator, the complaint filed for the offence punishable under Section 138 N.I. Act is not maintainable and therefore the complaint is liable to be quashed.

3. Emphatically the complaint against the petitioner for the offence punishable under Section 138 N.I. Act was filed on 27.9.2006 and the interim injunction was granted by the learned II Additional Chief Judge, City Civil Court in O.P.No. 1428 of 2006 subsequently i.e. on 15.11.2006.

4. For proper appreciation of the case on hand, it is necessary to extract Section 138 N.I. Act, which reads as under:

Dishonour of cheque for insufficiency etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both;

Provided that nothing contained in this section shall apply unless:--

a) the cheque has been presented to the bank within a period of six months from the date on which it s drawn or within the period of its validity, whichever is earlier;

b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation:- For the purposes of this section 'debt or other liability' means a legally enforceable debt or other liability.

5. From a perusal of the Section 138 N.I. Act it is clear that when a cheque was dishonoured by a bank, the offence would be complete subject to complying with the formalities noted thereunder.

6. In the case on hand as per the record, the 1st respondent issued the notice to the petitioner on 11.8.2006 demanding the 1st respondent to pay the cheque amount and the petitioner issued the reply notice on 28.8.2006 and thereafter he filed the O.P. and obtained the interim injunction against the 1st respondent. Since the 1st respondent complied with the provisions of Section 138 N.I. Act as per the record, the complaint for the offence under Section 138 N.I. Act is maintainable. When there is a statute to take necessary recourse for certain relief and accordingly that recourse is taken up and pursued for that relief any order passed which has the effect of nullifying that statute and the recourse is not permissible and is to be treated as non est.

7. Further, the Supreme Court in Kishan Singh vs. Gurpal Singh, AIR 2010 SC 3624 : [2010 ALL MR (Cri) 3948 (S.C.)] held as under:

Thus in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal case it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that finding recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgements in subsequent cases may be taken into consideration.

8. From the decision of the Supreme Court cited supra, it is clear that the findings of fact recorded by a Civil Court would not have any bearing as far as the criminal case is concerned and vice-versa where standard of proof is different and there is neither any statutory nor any legal principle that the findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter where both the cases are to be decided on the basis of evidence adduced therein subject to the exceptions noted. What is required is even in criminal cases all the relevant factors are to be exhaustively dealt with and proved. Suppose there is a dispute about ownership of a property that aspect is to be clearly and categorically proved taking all necessary measures and it is a misconception that the question of ownership is to be proved only in a civil court. However unless there is clear ascertainment of the fact in issue by collecting necessary material, prima facie no cognizance of the criminal case can be taken by the concerned Magistrate. The Criminal Court also can take all necessary measures within its ambit in that behalf before taking cognizance of the matter.

9. Further in the order passed in the interlocutory application no definite finding was given about the money or business dealings between the parties and it is only observed that in view of the pendency of the dispute, it is necessary to grant the interim relief.

10. For the foregoing reasons, I find no merits in the criminal petition and the same is liable to be dismissed. Accordingly, the criminal petition is dismissed. However, the learned II Additional Metropolitan Magistrate, Ranga Reddy District shall not be influenced by any of the observations made above while disposing of the criminal case against the petitioner on merits.

Ordered accordingly.