Monday, 30 January 2017

Whether application for discharge of accused is tenable on ground that civil suit against him is dismissed?

Hence, the observation made by this Court in V.M. Shah's
case (supra) that the finding recorded by the criminal Court stands
superseded by the finding recorded by the Civil Court is not correct
enunciation of law. Further, the general observations made in Karam
Chand's case are in context of the facts of the case stated above.
The Court was not required to consider the earlier decision of the
Constitution Bench in M.S. Sheriff's case as well as sections 40 to 43
of the Evidence Act.”
8. It is thus clear that the previous judgment which is final can be
relied upon under Sections 40 to 43 of the Evidence Act. In civil Suit
between the parties, the principle of res-judicata may apply. In
criminal case section 300 of Cr.P.C. makes a provision that once a
person is convicted or acquitted he may not be tried if the conditions
mentioned therein are satisfied. If the criminal case and civil
proceedings are for the same cause, the judgment of the Civil Court
would be relevant, if conditions of any of the 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. In the
instant case, Section 41 has no application. Further, the judgment,
order or decree passed in previous civil proceedings if relevant, as
provided under sections 40 and 42 of the Evidence Act or other

provisions of Evidence Act then in each case the Court has to decide
to what extent it is binding or conclusive with regard to the matters
decided therein. The Court may take into consideration the
illustration of Section 42, which makes the position clear. Thus in the
instant case, the learned Magistrate would require to consider all
evidence whether the judgment, order or decree passed in the said
Special Civil Suit is relevant and if relevant, its effect.
9. It is thus clear that in view of the provisions of Sections 41, 42
and 43 of the Evidence Act, to what extent the judgment given in the
previous proceedings are relevant, is provided and therefore, it would
be against the law, if it is held that as soon as the judgment and
decree passed in Civil Suit, criminal proceedings are required to be
dropped, if the suit is decided against the plaintiff, who is complainant
in criminal proceedings. In view of the observations made by the
Hon’ble Apex Court, I do not find any substance in the submissions
made by learned counsel for the applicant that the findings recorded
by the criminal court stand superseded by the findings recorded by
the Civil Court.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 2217 OF 2005
Digamber s/o Madhavrao Uchale

v
Prakash s/o Madhav Solanke

 CORAM : V. K. JADHAV, J.


 Dated: 15.09.2016
Citation:2016 ALLMR(CRI)4618

1. Being aggrieved by the order dated 1.8.2005 passed by the
learned Chief Judicial Magistrate, Nanded below Exh.39 in S.C.C.
No. 1687 of 1997, the original accused has preferred present criminal
application.

2. Brief facts, giving rise to the present application are as
follows:-
a) The respondent complainant was serving as sectional
Engineer at Masoli project, sub division Janapuri, Tq. Loha, District
Nanded and his remotely related sister is the wife of applicant
original accused. The applicant accused is serving as Manager with
State Bank of Hyderabad. In the month of October-December, 1996,
the applicant accused had approached the complainant and
requested for hand loan of Rs.1,25,000/- for the purpose of marriage
of his daughter Kum. Sujata. Thus, considering the request of the
accused and his persuasions thereto, respondent complainant
obtained a sum of Rs.1,00,000/- from his father in law on 29.12.1996
and paid the same to the applicant-accused as a hand-loan with
condition to repay the said amount within four months.
b) Since the applicant accused failed to repay the said amount
within stipulated period, the respondent complainant approached him
on 1.5.1997 and made a demand of the said amount. The applicant
accused had accordingly issued a cheque dated 1.5.1997 drawn on
State Bank of Hyderabad, Branch Mukhed in favour of the
respondent complainant. Though the respondent complainant has
deposited the said cheque in his saving bank account with State

bank of Hyderabad, Nanded. however, the said cheque was
dishonoured with endorsement that 'payment is stopped by the
drawer'. Consequently, the respondent complainant has issued a
demand notice calling upon applicant-accused to pay sum of
Rs.1,00,000/- within 15 days. The notice was duly served on the
applicant and even the applicant accused gave reply to the said
notice through his advocate. The applicant accused has denied the
liability in toto to pay the amount under cheque.
c) Thus, the respondent complainant constrained to file
complaint under Section 138 of Negotiable Instruments Act against
the applicant-accused before the Chief Judicial Magistrate, Nanded
and the same is accordingly registered as S.C.C. No.1687 of 1997.
The applicant accused on his appearance before the learned C.J.M.
Nanded filed an application below Exh.39 and claimed discharge
mainly on the ground that Special Civil Suit No. 9 of 2000 instituted
by the respondent-complainant for the same cause, came to be
dismissed by the Civil Court and thus, the finding recorded in the said
Civil Suit are binding on the criminal court. Learned C.J.M. Nanded
by its impugned order dated 1.8.2005 rejected the said application
Exh.39. Hence, this criminal application.
3. Learned counsel for the applicant submits that during

pendency of Summary Criminal Case No. 1687 of 1997, the
respondent original complainant instituted Special Civil Suit No. 9 of
2000 against the applicant accused before the learned C.J.S.D.
Nanded for recovery of amount of Rs.1,36,000/-, which includes
principal amount of Rs.1,00,000/- and Rs.36,000/- as an interest. The
respondent original complainant had instituted the said suit in respect
of the same transaction, which is subject matter of S.C.C. No. 1687
of 1997. The learned C.J.S.D. Nanded by judgment an decree dated
2.1.2004 dismissed the Special Civil Suit No. 9 of 2000 with costs by
recording negative finding in so far as the transaction of paying sum
of Rs.1,00,000/- as hand loan and further issuance of cheque for
repayment of the said amount.
Learned counsel for the applicant submits that the decision of
the civil court is binding on criminal court and in view of the same, the
applicant-accused is entitled for discharge. In view of clause 2 of
Article 20 of the Constitution of India, there is immunity guaranteed
from double punishment. The decision rendered in the said civil suit
by the civil court has attained finality and therefore, the doctrine of
merger squarely applied to the facts and circumstances of the
present case. There cannot be more than one decree or operative
order governing the same subject matter at given point of time.
Learned counsel submits that the doctrine of estoppel, as provided

under Section 115 of the Evidence Act also attracts and the
application of said doctrine precludes the respondent complainant
herein from denying the truth of the statement previously made by
him in the said civil suit. Learned counsel further submits that in view
of the provisions of Sections 40 to 43 of the Evidence Act, once an
issue was tried and determined by the competent court between the
parties, the same cannot be reopened between the same parties at
later stage. Learned counsel submits that in the given set of facts
the parties could not be permitted to put criminal law into motion
when the allegations are purely in the nature of civil dispute.
Learned counsel for the applicant-original accused submits
that the maxim that a person cannot “approbate and reprobate”,
squarely applies to the facts of the present case. It is well settled that
no person can 'approbate and reprobate' together, to approve and
reject. The respondent complainant when failed to prove before the
Civil Court that the present applicant who is defendant in that suit
issued cheque for repayment of loan of Rs.1,00,000/- then he cannot
'approbate and reprobate' together in the subsequent criminal
proceeding.
Learned counsel for the applicant in order to substantiate his
contentions, places reliance on the following cases:-

i) M/s. Karamchand Ganga Pershad and Anr vs. Union of
India and others, reported in AIR 1971 SC 1244
ii) Kunhayammed and others vs. State of Kerala and another,
reported in AIR 2000 SC 2587
iii) Pooja Ravinder Devidasani vs. State of Maharashtra and
Anr, reported in 2015 AIR SCW 446
iv) Nagubai Ammal and others vs. B. Shama Rao and others,
reported in AIR 1956 SC 593
4. Learned counsel for the respondent original complainant
submits that Article 20 of the Constitution of India, most particularly
clause (2), the person must have been prosecuted in the previous
proceeding and the conviction or acquittal in the previous proceeding
must be in force at the time of the second trial. There are certain
conditions which are required to be fulfilled and bar provided by
clause (2) of Article 20 does not apply unless all such conditions are
satisfied. In the instant case, criminal proceedings are yet to be
concluded and clause (2) of Article 20 is having no relevancy so far
as the facts and circumstances of the present case are concerned.
Learned counsel submits that similarly doctrine of merger and
doctrine of estoppel also having no relevancy at all to the facts and
circumstances of the present case.

Learned counsel submits that if the criminal case and civil
proceedings are for the same cause, then the judgment of civil court
would be relevant if conditions of any of Sections 40 to 43 of
Evidence Act are satisfied. It cannot be said that the same would be
conclusive except as provided under Section 41 of the Evidence Act.
The Criminal prosecution would not be required to be dropped alone
on the ground that the civil suit, for the same cause, came to be
dismissed. The recovery of amount in the civil suit is different than
the dishonour of cheque which is subject matter of complaint filed
under section 138 of Negotiable Instruments Act before the Court.
Both the proceedings can be continued simultaneously and both the
remedies are independent to each other.
Learned counsel of the respondent original complainant, in
order to substantiate his submissions, places reliance on the
following cases:-
i) K.G. Premshankar vs. Inspector of Police and Anr,
reported in 2002 Cri. L. J. 4343
ii) Vijaykumar B. Agarwal vs. Govindbhai Dayal Mange and
Anr, reported in 1999 (3) Mh.L.J. 81

5. It is the submission of learned counsel for the applicant that
the civil court after full-fledged trial in Special Civil Suit No. 9 of 2000
recorded a finding to the effect that the present respondentcomplainant
(plaintiff in the suit) failed to prove that on 29.12.1996 he
paid sum of Rs.1,00,000/- to present applicant original accused
(defendant in that suit) as a hand loan and that the applicant accused
herein (defendant in the said suit) issued a cheque dated 1.5.1997 as
claimed and the said findings bind the parties. The criminal
proceeding stands suspended by the findings recorded by the civil
court and thereby the findings of the civil court get precedence over
the criminal proceedings.
6. Sections 40 to 43 of the Evidence Act provide which judgment
of the Court of justice are relevant and to what extent. Sections 40 to
43 of the Evidence Act read as under:-
“40. 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 such Court ought to
take cognizance of such suit, or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction.
—A final judgment, order or decree of a competent Court, in the
exercise of probate, matrimonial admiralty or insolvency jurisdiction
which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such

character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any
such legal character, or the title of any such person to any such thing,
is relevant. Such judgment, order or decree is conclusive proof—
that any legal character, which it confers accrued at the time
when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person
to be entitled, accrued to that person at the time when such
judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such
person ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so
entitled was the property of that person at the time from which such
judgment, order or decree declares that it had been or should be his
property.
42. Relevancy and effect of judgments, orders or decrees, other
than those mentioned in section 41.—Judgments, orders or
decrees other than those mentioned in section 41, are relevant if they
relate to matters of a public nature relevant to the enquiry; but such
judgments, orders or decrees are not conclusive proof of that which
they state.
43. Judgments, etc., other than those mentioned in sections 40
to 42, when relevant.—Judgments, orders or decrees, other than
those mentioned in sections 40, 41 and 42, are irrelevant, unless the
existence of such judgment, order or decree, is a fact in issue, or is
relevant under some other provisions of this Act.”
7. In the case of K.G. Premshankar vs. Inspector of Police
and Anr, (supra) relied upon by learned counsel for the respondent
original complainant, the Apex Court had an occasion to deal with the

similar issue. The Hon’ble Apex Court referred its previous judgment
on the said point and even the decision rendered by the Privy
Council and also the decision of Full Bench of Lahore High Court,
thus concluded the point by making following observations in para 31
to 33 of the judgment. Paras 31 to 33 of the said judgment as
reproduced as follows:-
“31. Further, the judgment, order or decree passed in a previous
civil proceeding, if relevant, as provided under Sections 40 to 41 or
other provisions of the Evidence Act then in each case, 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 form 'A' and suit is decree.
Thereafter, in a criminal prosecution by 'B' against 'A' for trespass,
judgment passed between the parties in civil proceeding cold be
relevant and Court may hold that if 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, first question which would require consideration is- whether
judgment, order or decree is relevant? If relevant – its effect. It may
be relevant for a limited purpose, such as, motive or as a fact in
issue. This would depend upon facts of each case.
32. In the present case, the decision rendered by the
Constitution Bench of M.S. Sheriff's case (supra) would be binding,
wherein it has been specifically held that no hard and fast rule can be
laid down and that possibility of conflicting decision in civil and
criminal courts is not a relevant consideration. The law envisages
“such an eventuality when it expressly refrains from making the

decision of one Court biding on the other, or even relevant, except for
limited purpose such as sentence or damages.”
33. Hence, the observation made by this Court in V.M. Shah's
case (supra) that the finding recorded by the criminal Court stands
superseded by the finding recorded by the Civil Court is not correct
enunciation of law. Further, the general observations made in Karam
Chand's case are in context of the facts of the case stated above.
The Court was not required to consider the earlier decision of the
Constitution Bench in M.S. Sheriff's case as well as sections 40 to 43
of the Evidence Act.”
8. It is thus clear that the previous judgment which is final can be
relied upon under Sections 40 to 43 of the Evidence Act. In civil Suit
between the parties, the principle of res-judicata may apply. In
criminal case section 300 of Cr.P.C. makes a provision that once a
person is convicted or acquitted he may not be tried if the conditions
mentioned therein are satisfied. If the criminal case and civil
proceedings are for the same cause, the judgment of the Civil Court
would be relevant, if conditions of any of the 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. In the
instant case, Section 41 has no application. Further, the judgment,
order or decree passed in previous civil proceedings if relevant, as
provided under sections 40 and 42 of the Evidence Act or other

provisions of Evidence Act then in each case the Court has to decide
to what extent it is binding or conclusive with regard to the matters
decided therein. The Court may take into consideration the
illustration of Section 42, which makes the position clear. Thus in the
instant case, the learned Magistrate would require to consider all
evidence whether the judgment, order or decree passed in the said
Special Civil Suit is relevant and if relevant, its effect.
9. It is thus clear that in view of the provisions of Sections 41, 42
and 43 of the Evidence Act, to what extent the judgment given in the
previous proceedings are relevant, is provided and therefore, it would
be against the law, if it is held that as soon as the judgment and
decree passed in Civil Suit, criminal proceedings are required to be
dropped, if the suit is decided against the plaintiff, who is complainant
in criminal proceedings. In view of the observations made by the
Hon’ble Apex Court, I do not find any substance in the submissions
made by learned counsel for the applicant that the findings recorded
by the criminal court stand superseded by the findings recorded by
the Civil Court.
10. In the case of Kunhayammed and others vs. State of
Kerala and Anr. (supra) relied upon by learned counsel for the
applicant; the Apex Court has observed that the logic underlying the

doctrine of merger is that there cannot be more than one decree or
operative orders governing the same subject matter at a given point
of time. It is clear that when the decree or order passed by the
inferior Court, Tribunal or authority was subjected to a remedy
available under the law before a superior forum then, though the
decree or order under challenge continues to be effective and
binding, nevertheless its finality is put in jeopardy. Once the superior
court has disposed of lis before it either way – whether the decree or
order under appeal is set aside or modified or simply confirmed, it is
the decree or order of the superior Court, Tribunal or authority which
is the final, binding and operative decree or order wherein merges
the decree or order passed by the court, Tribunal or the authority
below. I do not think that the doctrine of merger stands applied to the
facts and circumstances of the present case.
11. The maxim that a person cannot “approbate and reprobate” is
only one application of the doctrine of election, and that its operation
must be confined to reliefs claimed in respect of the same transaction
and to the persons who are parties thereto. The doctrine of
“Approbate and reprobate” is only species of estoppel. During the
course of trial, it is for the Magistrate to decide to what extent the
conduct of the parties binds them with reference to previous
proceeding.

12. So far as the Article 20 of the Constitution of India is
concerned, clause (2) guarantees that no person be prosecuted and
punished for the same offence more than once. Article 20 (2) bars
the second prosecution only where the accused has been both
prosecuted and punished for the same offence previously. I do not
think that Article 20 has any relevancy with the facts and
circumstances of the present case.
13. In view of the above discussion and the law laid down by the
Hon’ble Apex Court in the case of K.G. Premshankar vs. Inspector
of Police and another, reported in 2002 Cri.L.J. 4343, I do not find
any substance in this criminal application. Thus, the order passed by
the learned Chief Judicial Magistrate, Nanded calls for no
interference. Criminal application is therefore, rejected. Rule
discharged.
14. Learned counsel for the petitioner has requested to extend the
interim relief for a period of four weeks from today. However, request
is refused for the reason that case is old one and is pending before
the learned Chief Judicial Magistrate, Nanded since 1997.
 ( V. K. JADHAV, J.)

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