Sai Engineers Engineers and Contractors v. K.I. Paulson and State of Kerala

## **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. 3639 of 2017 ()** **--------------------------CC 5246/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, IRINJALAKUDA** **-----------** ## **PETITIONER/ACCUSED:** **--------------------------------** **SAI ENGINEERS ENGINEERS AND CONTRACTORS,REPRESENTED BY ITS PROPRIETOR SRI.C. PRAKASH SANKAR, CHENOTH HOUSE, KEEZHILLAM,PRESENT ADDRESS SREE SAI ENGINEERS, NEAR S.N. COLLEGE, RAILWAY STATION ROAD, CHALAKUDY.** **BY ADV. SMT.I.SHEELA DEVI** ## **RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------------------** **1. K.I.PAULSON S/O INASU,KAPPANI HOUSE,CHENGALOOR VILLAGE AND DESOM,PROPRIETOR OF ST.PAUL QUARRY WORKERS, CHENGALOOR,PIN:680312,THRISSUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031.** - **R1 BY ADV. SRI.PEEYUS A.KOTTAM R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 3639 of 2017 () -----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ------------------------------------** - **ANNEXURE A1: CERTIFIED COPY OF THE COMPLAINT IN C.C.5246/2014 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,CHALAKUDY** - **ANNEXURE A2: TRUE COPY OF THE JUDGMENT DATED 29.09.2015 IN O.S.409/2011 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA** - **ANNEXURE A3: TRUE COPY OF THE DECREE DATED 29.09.2015 IN O.S.409/2011 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA.** - **RESPONDENT(S)' EXHIBITS : --------------------------------------ANNEXURE R1(a): COPY OF THE ORIGINAL PLAINT FILED BY THE R1 IN OS NO. 409/2011 BEFORE THE SUB COURT, IRINJALAKUDA** - **ANNEXURE R1(b): COPY OF THE AMENDED PLAINT FILED BY THE R1 INOS NO. 409/2011 BEFORE THE SUB COURT, IRINJALAKUDA** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.3639 of 2017 ----------------------------------------Dated this the 11[th] day of October, 2017 ## _**O R D E R**_ The petitioner is the proprietor of an Engineering Contract proprietary concern who has been arrayed as an accused in Annexure-A1 complaint proceedings in C.C.No.5246 of 2014 on the file of the Judicial First Class Magistrate Court, Irinjalakkuda, instituted by the first respondent herein. 2. The petitioner seeks quashment of the impugned AnnexureAI complaint on the ground that a civil suit was filed by the complainant herein seeking recovery of the moneys covered by the instant cheques and other amounts and that the said civil suit has been dismissed by the civil court and that the Regular First Appeal filed by the complainant herein to challenge the said civil court verdict along with delay condonation application thereon has also been dismissed on the ground of delay and that in view of the confirmed civil court verdict, the continuation of the instant criminal complaint proceedings would be nothing short of abuse of process of the court and that this Court may quash the said impugned Annexure-A1 complaint, etc. 3. Heard Smt.I.Sheela Devi, learned counsel appearing for the : **:2::** Crl.M.C.No.3639/17 petitioner/accused, Sri.Peeyus A.Kottam, learned counsel appearing for the first respondent/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for the second respondent/State. 4. The impugned Annexure-A1 complaint relates to the three dishonoured cheques for the amounts totalling to Rs.12,00,000/-. It is stated that a civil suit was earlier filed by the complainant herein as O.S.No.409 of 2011 before the Sub Court, Irinjalakuda, in which the petitioner/accused herein was arrayed as defendant therein with the prayer seeking recovery of a total amount of Rs.30,50,523/-, which is also inclusive of the abovesaid amount of Rs.12,00,000/- covered by the instant three dishonoured cheques. Subsequently as per Annexure-R1(b) application, the claim in the suit was amended by reducing the claim amount to Rs.17,00,569/-. It is the case of the complainant herein (plaintiff in the suit) that out of the original suit amount of Rs.30,50,523/-, he had received an amount of around 13,00,000/- also. Later, the complainant herein (plaintiff) in the suit had filed an application to amend the suit to reduce the claim amount in the suit, as he had admitted the receipt of about Rs.13,00,000/- from the petitioner/accused (defendant). The Sub Court, Irinjalakuda, had passed Annexure-A2 judgment dated 29.9.2015 dismissing O.S.No.409 of 2011. Thereafter, the petitioner herein had filed Regular First Appeal as : **:3::** Crl.M.C.No.3639/17 R.F.A.No.305 of 2017 to impugn the said judgment and decree of the Sub Court, Irinjalakuda, along with the petition to condone the delay and this Court as per the order dated 13.7.2017 had dismissed the delay condonation application and had resultantly dismissed the abovesaid R.F.A.No.305 of 2017 as well. 5. According to the petitioner, the first respondent/complainant has clearly admitted in the written statement filed in the abovesaid suit that he had received the moneys covered by the instant three dishonoured cheques. Per contra Sri.Peeyus A.Kottam, learned counsel appearing for the first respondent/complainant, would submit that a bare perusal of paragraph 13 of Annexure-A2 judgment of the civil court would show that the issues were as follows : - _“1. Whether the defendant is liable to pay the amount claimed in the suit to the plaintiff?_ _2. Whether there is excess payment by the defendant to the plaintiff?_ _3. Relief and costs?”_ On this basis, it is urged by the respondent/complainant that after the amendment of the plaint, the specific issue was as to whether the balance amount claimed in the amended suit was payable by the petitioner herein or not and further that it is the specific contention of the first respondent/complainant that the abovesaid amount of Rs.12,00,000/- covered by the instant three dishonoured cheques would : **:4::** Crl.M.C.No.3639/17 form part of the reduced claimed amount covered by the amended suit. Further it is stated by the first respondent/complainant that the admission made by that party in the civil suit regarding payment of some amounts by the defendant was not in relation to the amounts covered by the instant three dishonoured cheques and further that the amounts covered by the instant three dishonoured cheques would form part of the reduced amended suit claim. It is also pointed out that the main contention urged by the first respondent/complainant (plaintiff) in the civil suit was to the effect that the claim for the reduced amount in the amended suit was on the basis of an agreement marked as Exhibit-A1 in the suit as between the parties and that the civil suit has mainly dismissed the claim of the plaintiff on the ground that the plaintiff had failed to examine the person who was the alleged witness to the abovesaid Exhibit-A1 agreement. Therefore, it is urged that merely because the civil suit has been so dismissed, will not in any manner legally preclude the complainant from diligently prosecuting his criminal complaint and in adducing evidence in support of his contentions to prove that the amount of Rs.12,00,000/- covered by the three dishonoured cheques in question is in respect of a legally enforceable debt or liability owed by the accused to the complainant. Whereas the main contention urged by the learned counsel appearing for the : **:5::** Crl.M.C.No.3639/17 petitioner accused is that the admitted payments made by the accused to the complainant as admitted in the civil suit would also include the abovesaid cheque amount of Rs.12,00,000/- and therefore, since the said payment has been clearly admitted by the complainant, further continuation of the criminal proceedings would amount to grave abuse of process of the court. Apart from the earlier contentions, learned counsel appearing for the first respondent/complainant would also urge that even as per the case projected by the petitioner the said payments were made much after the dishonour of the cheque and therefore, that by itself would not in any manner hamper the lawful right of the complainant to prosecute the impugned criminal proceedings, as it has been held that the criminal court is empowered to order payment of fine/compensation amount not only in respect of the cheque amount, but also appropriate interest @ 9% per annum on the cheque amount from the date of cheque up to the date of realisation, as held by the Apex Court in the decision as in _**R.Vijayan v. Baby and another**_ reported in _(_ _**2012) 1 SCC 260**_ . Examining the rival pleas of the parties, this Court is of the considered view that it will not be proper for this Court to determine whether the admitted payments made by the plaintiff in the civil suit would also be inclusive of the abovesaid cheque amount of Rs.12,00,000/-. Further it is not seriously in dispute that the : **:6::** Crl.M.C.No.3639/17 abovesaid payments admitted in the civil suit have been made after the three dishonoured cheques in question and after the filing of the complaint. The matter would also require adducing evidence and in these circumstances, it would be improper for this Court to short-circuit the entire trial process, by considering the plea for quashment. 6. Earlier in the judgment in _**M.S.Sheriff v. State of Madras**_ reported in _**AIR 1954 SC 397**_ , a constitution Bench of the Apex court has considered the issue as to whether a civil suit or criminal case should be stayed in the event of both are pending and it was opined therein that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was also held therein that the only relevant consideration was the likelihood of embarrassment. If primacy is given to a criminal proceeding, then the civil suit must be determined on its own keeping in view of the evidence that is brought on record before it and not in terms of the evidence brought in the criminal proceeding. This precise question was the subject matter for consideration of the Apex Court in the judgment in _**K.G.Premshanker v. Inspector of Police**_ reported in _**2002 (8) SCC**_ : **:7::** Crl.M.C.No.3639/17 ## _**87 : 2003 SCC (Cri) 223**_ , wherein it has been held in paragraphs 30 to ## 31 as follows : _“30. What emerges from the aforesaid discussion is – (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act ; (2) in civil suits between the same parties, principle of res judicata may apply ; (3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied ; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court 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 biding 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--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 the facts of each case.”_ It is also significant to note that in the earlier decision of the Apex Court in _**Karam Chand Ganga Prasad v. Union of India**_ reported in **(1970) 3 SCC 694** , it was held that the decisions of the civil court will be binding on the criminal courts and this position has been overruled by the Crl.M.C.No.3639/17 : **:8::** Apex Court in the abovesaid judgment in _K.G.Premshanker_ ’s case (supra), wherein it has been held in paragraph 33 thereof as follows : _“33. Hence, the observation made by this Court in V.M.Shah v. State of Maharashtra reported in (1995) 5 SCC 767 : 1995 SC (Cri) 1077 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 Ganga Prasad’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 case as well as Sections 40 to 43 of the Evidence Act. ”_ The issue has also been considered in detail by the Apex Court in the decision in _**Vishnu Dutt Sharma v. Daya Sapra (Smt.)**_ reported in _**(2009) 13 SCC 729**_ 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 : **:9::** Crl.M.C.No.3639/17 139 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 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 CPC 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 : **:10::** Crl.M.C.No.3639/17 ## res judicata was held to be unsustainable. 7. This Court has been constrained to make certain observations only for the limited purpose as to whether it is right and proper for this Court to exercise its extraordinary powers under Section 482 of the Cr.P.C. for considering the plea of quashment as raised in the instant petition. In the light of these aspects, this Court is of the considered opinion that judicial restraint and quashing would require that all issues should be best left to be decided by the criminal court in the instant complaint by the rival parties as the matters in this regard would require adducing evidence for its proper determination and resolution. In this view of the matter, this Court is not inclined to grant the plea for quashment of the impugned complaint. However, it is made clear that none of the observations in this order shall in any manner be remotely construed by the trial court as an expression of opinion on the merits of the matter for those are all matters which would fall eminently and fully within the province of the trial court. 8. Sri.Peeyus.A.Kottam, learned counsel for the first respondent/ complainant would submit that in view of the long pendency of the complaint, this Court may issue appropriate directions to the trial court to ensure the earlier completion of the trial. Learned counsel for the petitioner/accused has no serious objection to that course of action. Crl.M.C.No.3639/17 : **:11::** It is observed that the trial court may take all reasonable endeavours to ensure the earlier completion of the trial without much delay. With these observations and directions, the Criminal Miscellaneous Case will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl : **:12::** Crl.M.C.No.3639/17 ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.3639 of 2017 ----------------------------------------Dated this the 7[th] day of July, 2017 ## _**O R D E R**_ The interim order deferring the trial will stand extended by a further period of one month from today. It is stated by the Registry that as per the computer data, R.F.A.No.305 of 2017 is pending before this Court with the challenge against O.S.No.409 of 2011 of Sub Court, Irinjalakuda. After verification from the original case records of the R.F.A., the Registry will report as to whether any delay application is pending and about the present stage of that appeal. List on 18.7.2017. **ALEXANDER THOMAS JUDGE** csl