Crl.M.C.No.4048 of 2014 (Eureka Trade Links v. State of Kerala & Gopi)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939** **Crl.MC.No. 4048 of 2014 ()** **--------------------------CC.NO. 302/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,TRICHUR** **-----------------------** ## **PETITIONER(S)/ACCUSED 1 TO 3:** **---------------------------------------------------** **1. M/S.EUREKA TRADE LINKS, REPRESENTED BY ITS MANAGING PARTNER K.MANOJ,** **KUMARAMANGALATH VEEDU, PANANGAD P.O., KODUNGALLUR TALUK, PIN: 680 665.** **2. K.MANOJ,AGED 39, S/O.LATE GANGADHARA MENON, MANAGING PARTNER, M/S.EUREKA TRADE LINKS, S.N.PURAM, KUMARAMANGALATH VEEDU, PANANGAD P.O., KODUNGALLUR TALUK, PIN: 680 665.** **3. P.SUDHEESH, AGED 40 YEARS, S/O.ARAVINDAKSHAN, PANANGATT HOUSE,** **PANANGAD POST, S.N.PURAM, KODUNGALLOOR, THRISSUR DISTRICT - 680 665.** **BY ADVS.SRI.K.C.ELDHO SRI.JIJO THOMAS SRI.SURAJ.S** ## **RESPONDENT(S)/STATE AND COMPLAINANT:** **-----------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.** **2. GOPI,AGED 57 YEARS, S/O.SHANKARANKUTTY, KUNNATHULLY HOUSE, MANALUR P.O., PIN CODE: 680 617, MANALUR VILLAGE, THRISSUR DISTRICT.** **R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW R2 BY SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE ADVS. SRI.SAJU.S.A SRI.K.C.KIRAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 4048 of 2014 ()** ## **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------** **ANNEXURE A1: A TRUE COPY OF THE COMPLAINT IN CC NO.302/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE II, TRICHUR. ANNEXURE A2: A TRUE COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONERS. ANNEXURE A3: A TRUE COPY OF THE PLAINT IN OS NO.459/2011 BEFORE THE SUB COURT, IRINJALAKUDA. ANNEXURE A4: A TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT IN OS NO.459/2011 BEFORE THE SUB COURT, IRINJALAKUDA ANNEXURE A5: A TRUE COPY OF EXHIBIT B4 DOCUMENT PRODUCED BY THE PETITIONER BEFORE THE CIVIL COURT. ANNEXURE A6: A TRUE COPY OF THE ORDER IN I.A NO.4803/2013 OF SUB COURT, IRINJALAKUDA DATED 13/12/2013 IN OS NO.459/2011.** **RESPONDENT(S)' ANNEXURES: NIL ----------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.4048 of 2014 ----------------------------------------Dated this the 11[th] day of October, 2017 ## _**O R D E R**_ ## The prayer in this Criminal Miscellaneous Case is as follows : _“For these reasons and other reasons that may be urged at the time of hearing, it is humbly prayed that this Hon'ble Court may be pleased to direct the Judicial First Class Magistrate Court-II, Trichur to keep in abeyance the trial of Annexure-A1 complaint in C.C.No.302 of 2012 pending final disposal of Annexure-A3 and A6 proceedings before the Sub Court, Irinjalakuda, in O.S.No.459 of 2011.”_ 2. While admitting this Criminal Miscellaneous Case on 18.7.2014, this Court had passed an interim order directing that there will be an interim stay of all further proceedings in C.C.No.302 of 2012 on the file of the Judicial First Class Magistrate Court-II, Thrissur, for a period of three weeks. The said interim order has been extended from time to time and has been extended until further orders as per the order dated 22.5.2015. 3. Heard Sri.K.C.Eldho, learned counsel appearing for the petitioners/accused, Sri.S.A.Saju, learned counsel appearing for the second respondent/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R1/State. 4. The three petitioners herein have been arrayed as accused Nos.1 to 3 for the offence punishable under Section 138 of the : **:2::** Crl.M.C.No.4048/14 Negotiable Instruments Act in Annexure-A1 complaint in C.C.No.302 of 2012 on the file of the Judicial First Class Magistrate Court-II, Thrissur, instituted on the basis of a complaint filed by the second respondent herein. According to the complainant, the accused had owed some amounts by way of refund of sale consideration as well as interest thereon and in discharge of the said liability, the first petitioner partnership firm had issued two cheques comprising of a cheque dated 1.4.2011 for Rs.14,00,000/- and yet another cheque dated 25.3.2011 for Rs.4,20,000/- and that those two cheques were dishonoured and that after following the requisite procedural formalities in that regard, the instant Annexure-A1 complaint has been laid. It is stated that the dishonoured cheques have been issued from an account maintained by the first petitioner partnership firm, of which the second and third petitioners are the Managing partner and partner respectively, who were sought to be arrayed as co-accused on the basis of vicarious liability. It is further stated that a civil suit has been filed as O.S.No.459 of 2011 on the file of the Sub Court, Irinjalakuda, by the complainant herein seeking recovery of the very same amounts covered by the very same transactions in question in which the third petitioner has been arrayed as the defendant therein. 5. Some amounts have been paid by the defendant to the : **:3::** Crl.M.C.No.4048/14 plaintiff and that the subsisting liability owed by the defendant to the plaintiff is only an amount of Rs.3,15,027/-. The contention raised by the defendant on the basis of Exhibit-B4 produced in the suit (AnnexureA5 herein) has been strongly denied by the plaintiff. Therefore, the third petitioner (defendant in the suit) had filed Annexure-A5 application before the civil court, to send Exhibit-B4 therein (Annexure-A5 herein) to the Forensic Science Laboratory, Thiruvananthapuram, for expert opinion. The civil court as per Annexure-A6 order dated 13.12.2013 had directed that the said document may be sent to a private expert for expert opinion as obtaining opinion from the Government Forensic Science Laboratory, Thiruvananthapuram, would take a very long time which would unduly prolong the civil litigation. The order passed by the civil court at Annexure-A6 order dated 13.12.2013 was challenged by the second respondent/complainant herein (plaintiff in the suit) by filing Original Petition (Civil) No.184 of 2014 by invoking the powers conferred on this Court under Article 227 of the Constitution of India. This Court as per the judgment dated 22.2.2017 has finally disposed of O.P.(C) No.184 of 2014 upholding Annexure-A6 order. The prayer made by the petitioners in this Criminal Miscellaneous Case is that appropriate directions should be issued to the criminal trial court to keep in abeyance the impugned Annexure-A1 complaint pending disposal of Crl.M.C.No.4048/14 : **:4::** Annexure-A3 suit and Exhibit-A6 proceedings before the Sub Court, Irinjalakuda, in O.S.No.459 of 2011. 6. In _**Vishnu Dutt Sharma v. Daya Sapra (Smt.)**_ reported in _**(2009) 13 SCC 729,**_ the Apex Court has considered the issue in detail wherein after discussing the scope and ambit of provisions as in Sections 40, 42 and 43 of the Indian Evidence Act, it was held that if a judgment of a civil court is not binding on a criminal court, then it is incomprehensible that a judgment of the criminal court will be binding on a civil court and that in view of the provisions as in Section 43 of the Evidence Act, judgments, orders, or decrees other than those mentioned in Sections 40, 41, and 42 of the Evidence Act are not are relevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act, etc. In the said decision in _Vishnu Dutt Sharma_ ’s case (supra), simultaneous civil and criminal proceedings were initiated by the creditor against the debtor, by instituting a civil suit or recovery of the alleged loan amount and also criminal complaint for the offence under Section 139 of the Negotiable Instruments Act for dishonour of the cheque. The criminal court had acquitted the accused and thereupon, an application was filed by the accused (defendant) for rejection of the plaint on the basis of the said acquittal by the criminal court. The Apex Court considered the : **:5::** Crl.M.C.No.4048/14 maintainability of such a plea and also the applicability of principle of res judicata in that regard and also the issue as to whether contingencies of the civil proceedings after the acquittal by the criminal court would be an abuse of the process of court, etc. The Apex Court has reiterated the right of the creditor to maintain both civil and criminal proceedings simultaneously and has distinguished the standard of proof required in civil proceedings from that in criminal proceedings, particularly where the relevant statutory provisions impose reverse burden on the accused as in Section 139 of the Negotiable Instruments Act. Considering that the civil suit was not barred from the date it was filed, it was held that acquittal in the criminal proceedings would not make the continuation of the civil proceedings abuse of process of the court and that principle of res judicata as contained in Section 11 of the Code of Civil Procedure or even general principles thereof are not attracted in such a case. Accordingly, the impugned judgment of the High Court therein rejecting the plaint under Order VII Rule 11 (d) of the Code of Civil Procedure on the ground of acquittal by the criminal court by applying the principles of res judicata was held to be unsustainable. 7. Therefore, in the light of the legal principles laid down by the Apex Court in the decision as in _Vishnu Dutt Sharma_ 's case (supra), it is not right and proper for this Court to grant the first prayer in this : **:6::** Crl.M.C.No.4048/14 petition. As clearly held by the Apex Court, the creditor has the right to maintain both civil and criminal proceedings simultaneously and independently and the standard of proof required in a civil proceeding is quite distinct from that of the criminal proceedings more particularly in a case involving offence punishable Section 138 of the Negotiable Instruments Act, in view of the incorporation of reverse onus clause in Section 139 of the Negotiable Instruments Act. 8. Resultantly, it is made clear that the learned Magistrate will proceed further with the complaint in accordance with law. The civil court as per Annexure-A6 order dated 13.12.2013 has directed that Annexure-A5 herein should be subjected to expert analysis by the private experts concerned and the said order in the civil court has been now confirmed by this Court as per the judgment dated 23.2.2017 in O.P.(C) No.183 of 2014. Both parties submit that the expert opinion of the private expert is expected to be secured without much delay. Therefore, it is ordered that while the criminal trial court may gone with the conduct of the trial, a reasonable time may be granted to the accused to ensure that expert opinion of the private expert in respect of the matter in Annexure-A5 document is obtained from the expert. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. It is also made clear : **:7::** Crl.M.C.No.4048/14 that none of the observations in this order shall even be remotely construed as an expression of opinion on the part of this Court regarding the merits of the controversy and all such matters are relegated to the domain and province of the criminal trial court concerned. **ALEXANDER THOMAS JUDGE** csl