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TMI Blog2009 (5) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant against the respondent for alleged commission of offences under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code on 29-01-2000. He also filed a suit for recovery of a sum of Rs. 2,04,000/- on 19-10-2002 in the Court of Senior Civil Judge at Delhi which was marked as Suit No. 253 of 2003. Both in the criminal as also in the civil proceedings the defence raised by the respondent was that she had not taken any loan from the appellant as alleged or at all. It was furthermore asserted that the cheque issued by her was not in respect of repayment of any loan, since no such loan had been taken. Respondent urged that the appellant had met her husband who was a property dealer in connection with some business who made a representation that pertaining to the same deal the police had to be bribed, whereafter on 10-08-1999 the appellant accompanied by one Ms. Malhotra, retired ACP and his son came to the office of her husband and forcibly took the cheque in question from her husband since the cheque book was with him. 4. By reason of the Judgment dated 26-09-2003, the learned Sessions Judge recorded a judgment of acquittal in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1908 (for short, Code ) provides for rejection of a plaint inter alia on the premise the suit was barred by any statute. Such an embargo in the maintainability of the suit must be apparent from the averments made in the plaint. 11. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit preponderance of probability would serve the purpose for obtaining a decree. 12. Section 138 of the Negotiable Instruments Act provides that dishonour of a cheque subject to fulfillment of condition precedent as laid down in the proviso appended thereto is a cognizable offence. 13. The cause of action for institution of the civil suit was grant of loan whereas that of the criminal case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dattatraya G. Hegde reported in [2008 (1) SCALE 421] wherein it was categorically held : 19. Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines 'negotiable instrument' to mean "a promissory note, bill of exchange or cheque payable either to order or to bearer". Section 138 of the Act has three ingredients, viz.: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 20. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conomic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. 18. The said dicta was followed by this Court in Noor Aga Vs. State of Punjab reported in [2008 (9) SCALE 68] wherein it was noticed: 58. In Glanville Williams, Textbook of Criminal Law (2nd Edn.) page 56, it is stated: Harking back to Woolmington, it will be remembered that Viscount Sankey said that "it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and subject also to any statutory exception".... Many statutes shift the persuasive burden. It has become a matter of routine for P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 11(d) of the Code of Civil Procedure; whether its continuation would attract the principles of abuse of processes of court only because the accused was acquitted in the criminal proceeding is the question. 23. Dismissal of a suit on the ground that it attracts the provisions of Section 12 of the Code, keeping in view of the content of provisions of Section 11 thereof may now be considered. The principle of res-judicata as contained in Section 11 of the Code is not attracted in this case. Even general principle of res-judicata would also not be attracted. A suit cannot be held to be barred only because the principle of estoppel subject to requisite pleading and proof may be applied. The said principle may not be held to be applicable only at a later stage of the suit. It brings us to the question as to whether previous judgment of a criminal proceeding would be relevant in a suit. 24. Section 40 of the Evidence Act reads as under: Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Courts from taking Cognizance of a suit or holding a trial is a relevant fact when the question is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Section 41 provides which judgment would be conclusive proof of what is stated therein. 31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B s property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n brought to our notice. 30. Another Constitution Bench of this Court had the occasion to consider the question in Iqbal Singh Marwah Anr. vs. Meenakshi Marwah Anr. [(2005) 4 SCC 370]. Relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held: 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. 31. The question yet again came up for consideration in P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein it was categorically held: 13. It is, however, well-settled that 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. 32. In view of these authoritative pronouncements, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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