OP(Crl.) Nos. 406 of 2021 and 412 of 2021 (Suja Philendran v. Sajimon; Philendan v. Sajimon)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MARY JOSEPH
Judgment Date: 2021-10-29
Court Decision / Holding: Original Petitions fail for the above reasons and are dismissed.
Final Disposition: Original Petitions dismissed; no stay granted; parallel criminal and civil proceedings may continue.

Parties to the Case

Appellants / Petitioners

SUJA PHILENDRAN
PHILENDRAN

Respondents

SAJIMON S/O. THILAKAN @ RAJAN

Legal Representation & Advocates

Counsels for Petitioners

• N. L. Bitto

Case Synopsis & Summary

These Original Petitions (OP(Crl.)) arise from orders in CMP Nos. 240/2021 and 241/2021 in ST Nos. 115/2018 and 116/2018 before the Judicial Magistrate First Class, Irinjalakuda, and OS No.155/2016 filed before the Sub Court, Irinjalakuda. The petitioners, accused in a Negotiable Instruments Act case under Sec. 142, seek to set aside the common order Ext.P7 and to direct the Magistrate to adjourn the criminal trials until the civil suit is disposed of. The civil suit asserts the same underlying transaction: a loan of Rs.13,30,000 with an interest clause, backed by cheques. The petitioners contend that the alleged cause of action in the criminal and civil proceedings is one and the same; a concurrent trial could lead to inconsistent verdicts and prejudice them. Opposing, the respondent asserts that civil and criminal proceedings are independent, may run in parallel, and that staying one would only protract the process. The trial court had relied on a Vishnu Dutt Sharma decision to dismiss, noting that parallel proceedings are permissible and that different standards of proof (beyond reasonable doubt vs preponderance of probabilities) apply. The Kerala High Court held that supervisory jurisdiction is unwarranted, that the pleadings and evidence may be used in both proceedings, and that there is no prejudice in continuing both streams. Accordingly, the petitions were dismissed, and the observed impugned order was confirmed.

Provisions of Law Cited

Section 142 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Parallel proceedings can run concurrently between civil and criminal actions; different standards of proof apply in civil versus criminal cases (preponderance of probabilities vs beyond reasonable doubt).
Creditor may pursue civil and criminal remedies simultaneously (as per Apex Court observations in Vishnu Dutt Sharma v. Smt. Daya Sapra).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued for stay of the criminal proceedings (ST Nos. 115/2018 and 116/2018) pending disposal of the civil suit OS 155/2016, as the two proceedings arise from the same transaction and may yield conflicting outcomes; staying one would prevent prejudice and delay.

Contentions of Respondents

The respondent contended that civil and criminal proceedings are independent and may proceed in parallel; staying either would be unwarranted and would unnecessarily protract litigation; relied on Vishnu Dutt Sharma in the court below.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vishnu Dutt Sharma v. Smt. Daya Sapra	2009 (4) KHC 581	Positive	Cited to support the proposition that civil and criminal proceedings may run concurrently with different standards of proof; the court below relied on it, and the present judgment affirms the underlying principle without staying proceedings.

Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **OP(CRL.) NO. 406 OF 2021** **AGAINST THE ORDER IN C.M.P NO.240/2021 IN ST NO.115/2018 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS III, IRINJALAKUDA.** **OS NO.155/2016 OF PRINCIPAL SUB COURT,IRINJALAKUDA.** ## **PETITIONER/PETITIONER/ACCUSED:** SUJA PHILENDRAN AGED 45 YEARS W/O.PHILENDRAN, THAYYIL HOUSE, PANTHALLORE DESOM, NELLAYI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680305. BY ADV N.L.BITTO ## **RESPONDENT/RESPONDENT/COMPLAINANT:** SAJIMON S/O.THILAKAN @ RAJAN, VANAPARAMBIL HOUSE, THANISSERY DESOM, MANAVALASSERY VILLAGE, THRISSUR DISTRICT,PIN-680121. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29.10.2021, ALONG WITH OP(Crl.).412/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(CRL.) Nos.406 & 412/2021 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **OP(CRL.) NO. 412 OF 2021** **AGAINST THE ORDER IN C.M.P NO.241/2021 IN S.T NO.116/2018 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS III, IRINJALAKUDA.** ## **OS NO.155/2016 OF PRINCIPAL SUB COURT,IRINJALAKUDA.** ## **PETITIONER/PETITIONER/ACCUSED:** PHILENDRAN, AGED 60 YEARS, S/O.VELAPPAN, THAYYIL HOUSE, PANTHALLORE DESOM, NELLAYI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 305 BY ADV N.L.BITTO ## **RESPONDENT/RESPONDENT/COMPLAINANT:** SAJIMON AGED 48 YEARS S/O. THILAKAN @ RAJAN, VANAPARAMBIL HOUSE, THANISSERY DESOM, MANAVALASSERY VILLAGE, THRISSUR DISTRICT,PIN-680 121 THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29.10.2021, ALONG WITH OP(Crl.).406/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(CRL.) Nos.406 & 412/2021 3** ## **JUDGMENT** **[OP(Crl.) Nos.406/2021, 412/2021]** **Dated this the 29[th] day of October, 2021.** These Original Petitions are filed by the petitioners seeking to set aside Ext.P7 and to direct the Magistrate to adjourn the trial of S.T Nos.115/2018 and 116/2018 till disposal of the civil suit filed against them and pending before Sub Court, Irinjalakuda (for short, ‘the court below’) as O.S No.155/2016. Petitioners are accused in a prosecution launched under Section 142 of the Negotiable Instruments Act,1881 (for short, ‘the N.I Act’). Ext.P7 common order was passed respectively in CMP Nos.240/2021 and 241/2021 in S.T Nos.115/2018 and 116/2018. 2. Applications above have been filed seeking to stay the proceedings till the disposal of O.S No.155/2016 pending on the files of Sub Court, Irinjalakuda. According to the learned counsel, the allegation against the petitioners was that a sum of Rs.13,30,000/- **OP(CRL.) Nos.406 & 412/2021 4** was received by them from the complainant as loan agreeing to repay the same on demand. The amount when demanded back, the accused entered into an agreement on 25.01.2016, whereby the total amount with interest accrued thereon and payable was fixed to Rs.14,47,000/-. It was also agreed therein that the accused had issued cheques towards discharge of the debt. 3. The respondent/complainant had instituted O.S No.155/2016 before the court below and in the said suit the allegations raised were that two cheques were issued on the basis of the terms agreed to by the parties. According to the petitioners, the amount covered by the cheque and sought to be realised in O.S No.155/2016 on the basis of the agreement executed by the parties are one and the same. According to the petitioners, the cause of action and the reliefs sought in the criminal as well as civil proceedings being one and the same, there is a probability for diverse verdicts to come out in the said proceedings to the prejudice of the petitioners. 4. Respondent/complainant opposed the applications stating that the only intention of the petitioners while preferring the **OP(CRL.) Nos.406 & 412/2021 5** applications is to protract the proceedings. It was further stated that the civil as well as criminal cases are independent proceedings and staying of any of the proceedings is totally unwarranted. 5. The dictum in **Vishnu Dutt Sharma v. Smt. Daya Sapra** [2009 (4) KHC 581], was relied on by the court below while dismissing the applications. The Apex Court has observed in the above referred case that a creditor can maintain civil as well as criminal proceedings at the same time and the proceedings can run parallely. The fact required to be proved for obtaining a decree in a civil suit and a judgment in a criminal proceedings may be overlapping but the standard of proof in a criminal case and a civil case is indisputably different. It is the bounden duty of the prosecution to prove the commission of the offence by the accused beyond any reasonable doubt in a criminal case whereas preponderance of probabilities would suffice for obtaining a decree in a civil suit. 6. The petitioners can very well make use of the evidence in the firstly disposed case, in the later tried case to controvert the opposite party. As already stated the degree of proof required to be **OP(CRL.) Nos.406 & 412/2021 6** adduced by the petitioners in the civil and criminal proceedings being different, there is no scope for the apprehension expressed by the petitioners in the applications. Exercise of supervisory jurisdiction by this Court in the matter is absolutely unwarranted. Therefore, both the criminal and civil proceedings can be proceeded with parallely and absolutely no scope for a prejudice to be caused to the petitioners as apprehended by them. The arguments advanced by the petitioners being devoid of merits are discarded. The impugned order is correct in all respects and interference sought is declined. Original Petitions fail for the above reasons and are dismissed. **Sd/-** **MARY JOSEPH** **JUDGE** JJ ## **OP(CRL.) Nos.406 & 412/2021 7** ## **APPENDIX OF OP(CRL.) 412/2021** |PETITIONER’S EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF THE COMPLAINT IN ST NO.116 OF 2018 ON| ||THE FILE OF THE JFCM, NO.III IRINJALAKUDA DATED NIL| |Exhibit P2|A TRUE COPY OF THE DISPUTED AGREEMENT BETWEEN THE| ||PETITIONER AND THE RESPONDENT DATED 25.1.2016| |Exhibit P3|A TRUE COPY OF THE COMPLAINT IN ST. 115 OF 2018 OF THE| ||JFCM NO.III IRINJALAKUDA DATED NIL| |Exhibit P4|A TRUE COPY OF THE PLAINT IN OS 155 OF 2016 OF THE SUB| ||COURT, IRINJALAKUDA DATED NIL| |Exhibit P5|A TRUE COPY OF THE WRITTEN STATEMENT IS OS 155 OF 2016| ||ON THE FILE OF THE SUB COURT, IRINJALAKUDA DATED| ||3.7.2017| |Exhibit P6|A TRUE COPY OF THE APPLICATION STOP THE TRIAL CMP 241| ||OF 2021 IN S T.116 OF 2018 OF JFCM NO.III IRINJALAKUDA| ||DATED 8.9.2021| |Exhibit P7|A TRUE COPY OF THE ORDER IN CMP 241 OF 2018 IN ST.116| ||OF 2018 OF JFCM NO.III IRINJALAKUDA DATED 18.9.2021| ## **OP(CRL.) Nos.406 & 412/2021 8** ## **APPENDIX OF OP(CRL.) 406/2021** |PETITIONER’S EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF THE COMPLAINT IN ST.115 OF 2018 ON THE| ||FILED OF THE JFCM, NO.III IRINJALAKUDA DATED NIL| |Exhibit P2|A TRUE COPY OF THE DISPUTED AGREEMENT BETWEEN THE| ||PETITIONER AND THE RESPONDENT DATED 25/1/2016| |Exhibit P3|A TRUE COPY OF THE COMPLAINT IN ST.116 OF 2018 OF THE| ||JFCM NO.III, IRINJALAKUDA DATED NIL| |Exhibit P4|A TRUE COPY OF THE PLAINT IN O.S.155 OF 2016 OF THE| ||SUB COURT,IRINJALAKUDA, DATED NIL| |Exhibit P5|A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.155 OF| ||2016 ON THE FILE OF THE SUB COURT, IRNJALAKUDA DATED| ||3/7/2017| |Exhibit P6|A TRUE COPY OF THE APPLICATION STOP THE TRAIL CMP.240| ||OF 2021 IN ST.115 OF 2018 OF JFCM NO.III IRINJALAKUDA| ||DATED 8/9/2021| |Exhibit P7|A TRUE COPY OF THE ORDER IN CMP NO.240 OF 2021 IN| ||ST.115 OF 2018 OF JFCM NO.III,IRINJALAKUDA DATED| ||15/9/2021.|