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Basavanappa S/O Limanappa Vs. Abdul Sattar S/O Haji Abdul and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 103 of 1984
Judge
Reported in1986(2)BomCR202
ActsIndian Penal Code (IPC), 1860 - Sections 420; ;Code of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantBasavanappa S/O Limanappa
RespondentAbdul Sattar S/O Haji Abdul and anr.
Appellant AdvocateC.G. Solshe and V.V. Mamane, Advs.
Respondent AdvocateS.S. Badve, Adv. for respondent No. 1
DispositionPetition dismissed
Excerpt:
criminal - bail - section 420 of indian penal code, 1860 and section 482 of criminal procedure code, 1973 - appellant charged of cheating - respondent filed civil suit and had taken ex parte decree - appellant disobeyed order of lower court - lower court issued non bailable warrant for disobeying order of court - appellant challenged non bailable warrant - merely because civil proceedings were filed criminality of cheating does not obliterate - circumstances show that intention of petitioner was malafide - dispute of civil character converted by respondent into criminal proceedings - case was of gross character having criminal intention - lower court justified in issuing non bailable warrant. - - in the circumstances, the learned magistrate was satisfied that there existed prima.....sharad manohar, j.1. this application is filed by the accused, both under section 482 of the criminal procedure code and under article 227 of the constitution of india, for quashing the proceedings in criminal case no. 43 of 1981, the charge framed therein against him, as also the non-bailable warrant issued against him on 27-4-1984. the charge framed by the learned magistrate against him is under section 420 i.p.c. against the order of framing charge, he filed revision application to the sessions court, which was dismissed as early as on 7-1-1983. the petitioner did not move his small finger against the said order and even in the present petition it is not his contention that there was anything wrong about the said order. but his novel plea is that because the respondent/complainant.....
Judgment:

Sharad Manohar, J.

1. This application is filed by the accused, both under section 482 of the Criminal Procedure Code and under Article 227 of the Constitution of India, for quashing the proceedings in Criminal Case No. 43 of 1981, the charge framed therein against him, as also the non-bailable warrant issued against him on 27-4-1984. The charge framed by the learned Magistrate against him is under section 420 I.P.C. Against the order of framing charge, he filed Revision Application to the Sessions Court, which was dismissed as early as on 7-1-1983. The petitioner did not move his small finger against the said order and even in the present petition it is not his contention that there was anything wrong about the said order. But his novel plea is that because the respondent/complainant filed a suit against him in the Civil Court and even obtained an ex parte decree against him, the criminal proceeding which was instituted against him changed its character into a proceeding of purely civil character. Contention is that the criminal proceeding instituted by the complainant is the abuse of the process of law. As will be presently pointed out, it is the present petition which is nothing but an abuse of the process of law of the grossest character.

2. It will first state the facts which are, more or less, admitted facts. I have stated that they are admitted because they have been averred by the respondent/complainant; he has led evidence about that; the Sessions Court has referred to them and still there is not as much as a murmur on the part of the present petitioner denying them.

(a) The present practitioner claims to be a manufacturer and supplier of all types of engineering materials, pipes and fittings. He carries on business at Latur. He persuaded the respondent/complainant to take an agency for the goods manufactured by him, for territory of the Parbhani District as also at Nanded District by offering commission at the rate of 20% on the orders placed. On 25-11-1979, the complainant booked 9 orders for supply of pipes amounting to Rs. 16,500/-. The petitioner required the complainant himself to pay a sum of Rs. 16,500/- to him with the assurance that the goods would be supplied to his customers in due course. Thereafter, a further sum of Rs. 3,500/- was received by the petitioner/accused from the complainant in connection with the various transactions. Thus, the complainant paid to the petitioner/accused a sum of Rs. 20,000/- as an advance towards the supply of goods. No goods were supplied by him. The accused used to visit the complainant at Nanded and give to him facile promises of the supply of goods; the supply never forthcoming. The case of the complainant is that for the purposes of carrying on the business of agency, he spent an amount of Rs. 5000/- for acquiring office at Nanded. His further contention is that the customers who had placed the orders with the complainant were clamouring for the supply and on that account the complainant himself had to shell out a sum of Rs. 6000/- to them in order to ward off actions against him.

(b) The further case of the complainant is that ultimately, as a result of persistent demands on the part of the complainant, the accused issued a cheque for Rs. 24,500/- in favour of the petitioner. It is not clear that whether it was in full settlement of the claim or only in part settlement. Fact, however, remains that such a cheque was given by the present petitioner/accused to the complainant. The cheque was drawn on Bank of Punjab & Sind Bank, Nanak Zara, Bidar (Karnataka), dt. 30-8-1980, drawn on its Account No. 1007. The complainant went all the way to Bidar and tried to encash the cheque on 16-10-1980 only to draw blank, because he was informed that there was no balance in the petitioner's account. Another attempt was made by the complainant to encash the cheque on November 1980 by putting it in his Bank at Nanded. But once again the cheque bounced back, as there was no balance, with the endorsement 'refer to drawer'.

(c) On 28-1-1981, the complainant sent a registered Notice to the petitioner recording all the above facts and demanding immediate payment. Mr. Badve appearing for the complainant before he made a categorical statement that there was no reply received to this notice from the accused. Mr. Solshe appearing for the petitioner had to concede that this was the correct position.

It was in these circumstance that the instant complaint was filed by the complainant against the accused in the Court of the Judicial Magistrate, at Nanded, accusing the petitioner/accused of the intention to cheat him and of the offence of cheating. On 2-3-81, the complainant filed the complaint in the Court. Upon receipt of the complaint, the learned Magistrate passed an order calling for report of the Police under section 202 of the Criminal Procedure Code. The police made investigation and submitted their Report to the learned Magistrate on 30-5-1981, which is at Exh. 22 in these proceedings. Upon receipt of the Report, the learned Magistrate issued process to the accused. In the proceedings which started thereafter, as many as 3 witnesses were examined by the learned Magistrate. It is pertinent to note that the complainant chose not to cross-examine those witnesses. In the circumstances, the learned Magistrate was satisfied that there existed prima facie case of cheating on the part of the petitioner/accused and hence on 9-6-1982 he framed a charge against him for commission of offence under section 420 I.P.C.

Against this order, Revision Application No. 96 of 1982 was filed by the accused. His contention was that the evidence adduced by the complainant disclosed no offence on his part. As is evidenced from the judgment of the learned Addl. Sessions Judge, it was not urged before the learned Judge that no amount was received by the petitioner/accused from the respondent/complainant or that he had not issued the cheque in settlement of the amount, nor did he contend that the cheque was not dishonoured by him. His only contentions appeared to be :---

(a) that the intention to cheat was not indicated by the evidence so far as adduced;

(b) that giving of a cheque did not amount to any representation whatsoever;

(c) that the mere dishonouring of cheque on the ground of the non-availability of funds in the account of the person issuing such a cheque does not amount to cheating;

(d) that there existed no criminal intention or mens rea in the act alleged against the petitioner/accused; and

(e) that the entire question was purely one of civil character.

All these contentions were negatived by the learned Judge after giving full hearing to the petitioner/accused. The learned Judge was satisfied that this was not a case where absence of criminal intention was manifest. He has found that the entire question would be a matter of evidence and that there was no scope or justification for holding at this stage that no criminal offence could be brought home against the accused even after leading of the evidence. The learned Judge specifically observed that at present the Court has to see whether there existed a prima facie case against the accused or not and he found no justification for holding otherwise. The Revision Application against the order of the learned Magistrate framing the charge was, therefore, dismissed by the learned Addl. Sessions Judge by its order dated 7-1-1983. The learned Judge also directed both the parties to remain present in the Court on 20-1-1983 and directed the trial to proceed against the accused.

(d) It appears that the present petitioner had decided to disobey the direction of the learned Sessions Judge to such an extent that the learned Magistrate had to issue a non-bailable warrant against the complainant on 27-2-1984 and it was only thereafter that the present petition is filed by the petitioner on 19-3-1984. The petitioner does not claim any relief against the order passed by the learned Addl. Sessions Judge dismissing the Revision Application on 7-1-1983. The petitioner has not found it possible to find any fault either with the reasoning or with the final order passed by the learned Addl. Sessions Judge dated 7-1-1983 in the Revision Application No. 96 of 1982. The contention of the petitioner is somewhat novel. His contention is that some kind of fresh cause of action has arisen in favour of the petitioner for the purpose of getting quashed the proceeding in the trial Court, the charge framed by the trial Court and the non-bailable warrant issued by him and the kind of fresh cause of action stumbled upon by him is alleged to have arisen in the following circumstances :---

(e) It will be noticed that the cheque was dishonoured, firstly, on 16-10-1980 and thereafter some time in November 1980. The criminal proceeding instituted by him resulted in no relief for the complainant till 24-9-1982. The Revision Application filed by the respondent was pending in the Sessions Court. In these circumstances, very advisedly, the complainant filed Special Suit No. 58 of 1983 (in the Court of Civil Judge (S.J.), Nanded) against the accused for the recovery of the amount of Rs. 30,380/- with costs. In that proceeding, on his own showing, the petitioner/accused came to learn, on 14-2-1983, about at least an attempt to serve the summons upon him. On his won showing, he took search of the proceeding in the Civil Court and learned that the suit was filed against him. Still, he did not move his small finger to do anything to defend the suit and ultimately on 5-10-1983 allowed an ex parte decree to be passed against him. As will be presently pointed out, his contention before me was that the summons was served upon him but that the copy of the plaint was not accompanied by the summons. In the petition filed before me, it was contended that the summons was not served upon him at all, but that the summons returned unserved. Whatever that may be, the fact remains that he allowed an ex parte decree to be passed against him. Thereafter he took no steps for setting aside the ex parte decree although he has not been contending from house-tops in this Court, not without prevarication, that no summons was served upon him in the suit. This is his story in the present petition. When I asked Mr. Solshe as to how it was that if no summons was served upon him the petitioner did not make an application for setting aside the ex parte decree, the answer was that the summons was served upon him, but that the copy of the plaint was not accompanied by the summons.

(f) It is, thus, clear that neither the petitioner nor his learned Advocate are sure as to what is the exact factual position. One thing, however, is clear : It is that this petitioner has taken monies from the complainant and when the question comes of re-paying them, he is setting up all kinds of excuses and is having his face set against meeting the lawful claim against him. In given circumstances, this, may amount to criminality. There may be some other circumstances, in which case the intention not to pay might have risen subsequently on account of certain subsequent bona fide events. But the conduct of the present petitioner gives no scope for the latter inference. I will presently discuss this aspect of the case.

(g) What the petitioner did in connection with the ex parte decree was that against the decree, he filed First Appeal No. 121/1984 making certain grievances against the said ex parte decree. I will have occasion to refer to those grievances presently. But what needs be stated at this stage is that the said Appeal was filed as late on 20-3-1984 and that too after a delay of 72 days in filing of the Appeal. Civil Application No. 298 of 1984 is filed by the petitioner for condonation of that delay. It was prima facie satisfied that this was a gross case of complete want of bona fides or, rather of every indication of existence of mala fides on the part of the present petitioner/accused and further, that his criminal conduct is being justified and the criminal proceedings against him are being stifled by the accused, taking advantage of the civil proceeding which the complainant was compelled to file against him. I, therefore, myself called for the record of the civil proceeding, viz. F.A. No. 121/84 and C.A. No. 298/84, filed by the petitioner for condonation of delay. From the order dated 23-8-1984 passed in C.A. No. 298 of 1984 for condonation of delay, it does appear that the delay has been condoned by this Court. But that is probably because that application was not seriously opposed by Mr. Badve, appearing for the respondent/complainant. But even assuming that there was some good reason for the delay, facts remains that the petitioner/accused did nothing to defend the suit; allowed the ex parte decree to be passed against him, filed an Appeal against that decree but that too after a delay of 72 days.

(h) The circumstances in which the ex parte decree came to be passed was also of a tell-tale character. Before me, two contradictory statements have come to be made. In the present petition it is stated that no summons was ever served upon the petitioner. In the arguments advanced by Mr. Solshe for the petitioner, the contention was that the summons was served but it was not accompanied by a copy of the plaint. In the trial Court, however, the applications made on behalf of the defendant/accused was extremely significant. From the Roznama of the suit produced in the appeal, it appear that on 6-1-1983 summons was not served upon the defendant and hence the Court directed the summons to be re-issued and the plaintiff was directed to take steps in that behalf. The suit was adjourned to 14-2-1983. On 14-2-1983 an application was made by the plaintiff once again for re-issuance of the summons. But it appears that the defendant had himself appeared in the Court and on his behalf application for adjournment was made for filing this written statement. That application was granted. A Vakalatnama was in fact filed by Shri Patankar, Advocate, on behalf of the defendant and time was granted to the defendant to file his written statement, as per his own application till 4-4-1983. On 4-4-1983 another application was made on behalf of the defendant for extension of time to file his written statement and that application was also granted by the trial Court and the suit was adjourned to 16-6-1983. On 16-6-1983 also once again, the defendant chose not to file his written statement. Not even any reason is mentioned why the petitioner fought shy of filing the written statement. From the record it appears that the defendant's advocate did not even appear before him on that date. In any event, no application for further time to file the written statement appears to have been made. It may be mentioned here that on the first two occasions, dated 14-2-1983 and 4-4-1983, no grievance was made of the fact that the defendant was not having with him a copy of the plaint. In the second application for adjournment, dated 4-4-1983, all that was mentioned was that the learned Advocate for the defendant/accused could not prepare the written statement because of the pressure of heavy work. On the third occasion, on 16-6-1983, neither was the written statement ready nor was the Court informed as to why it was not ready or as to what the defendants proposed to do about it. The result was that the Court had no option but to order the suit to proceed ex parte, probably on 1-8-1983. It was on this date, 1-8-1983, when the suit was to proceed ex parte, in the third application for the adjournment, dated 1-8-1983 (Ex. 13) that a statement was made by the learned Advocate on behalf of the defendant that the copy of the plaint was received by him on that date only. On that account, it was prayed that one more chance may be granted to him for filing his written statement. On that application, the Court passed an order as follows :---

'Sufficient opportunity has been given and hence, this application is rejected.' Another application made by the defendant on the same day for setting aside the order to proceed without the written statement was also rejected by the learned Judge. It is, thus, clear that in the trial Court defendant's conduct is, at least apparently, hall-marked by the negligence and indifference on the part of the defendant. I am aware of the fact that this position is being considered by this Court in its civil appellate jurisdiction in F.A. No. 121 of 1984. But I am required to consider all these facts in this criminal proceeding also, because the allegation is that the present complainant (plaintiff in the suit) has been abusing the process of the Court when in fact the boot is on the other foot.

(i) After the appeal was filed, after a delay of 72 days, an application for condonation of delay was made. In the application, it was mentioned that the decree was obtained by the present complainant on 28-9-1983. For explaining the delay, the blame was brought by the petitioner/accused to the door-step of his own Advocate. Statement is made in the said application that his own Advocate obtained the certified copies of the judgment and decree under Appeal, but kept them with himself and that he informed the petitioner about the judgment only on 28-9-1983. It is further stated that only on 5-3-1984 the certified copies were handed over by his own advocate to him. This is the ground given by the petitioner in his application for condonation of delay. It was also contended by him that there were some compromise talks going on, which was the reason why the appeal was not filed earlier. The present respondent had filed affidavit in which he has categorically denied any talks of compromise. Moreover, he has pointed out sufficient circumstances showing that the present petitioner was fully aware of the impugned judgment and decree.

(j) It is true that in spite of this position, this Court has condoned the delay of 72 days in filing of the appeal. But from that, it does not follow that this Court is fully satisfied about the bona fides of the present petitioner's conduct in the said civil proceedings, either in the trial Court or in this Appellate Court. The entire question may be re-opened at the time of re-hearing of the appeal and I have no doubt that if all these facts are brought to the notice of the Court, the Court will give serious thought to the question as to whether the conduct of the present petitioner does not smack of mala fides.

(k) Let me continue with the chronology of the events. The order of condonation of delay was passed by this Court in said Civil Application No. 298 of 1984 on 23-8-1984. During all these time, the criminal proceedings were going on. It does not appear that the stay of the said criminal proceeding was obtained by the petitioner/accused from this Court. At least my attention was not invited to any order of stay of the said proceeding. What the present petitioner/accused chose to do was to ignore the said proceeding completely and from the averment made in the prayer clause of this present petition it becomes clear that the Criminal Court had to pass an order on 27-2-1984 issuing non-bailable warrant against the present accused. It was thereafter that the present petition was filed by the petitioner on 19-3-1984. In this petition, no grievance is made about the order passed by the Additional Sessions Judge. Contention, however, is that a fresh cause of action has arisen in favour of the present petitioner to question the legality of the criminal proceedings pending in the Court of the learned Magistrate and the contention is that the filing of the suit by the present respondent, the ex parte decree obtained against him and the appeal filed by the present petitioner against the said ex parte decree, all these things together make the transaction an exclusively civil transaction so that the Criminal Court is divested of its jurisdiction to enquire into the question as to whether any criminal intention was entertained by the present petitioner or not. Contention is that the filing of the suit by the present respondent results in the situation that the proceeding which is till the date of the suit a criminal proceeding becomes after the date of the suit a purely civil proceeding and that this has the result of divesting the Criminal Court of its jurisdiction to entertain the criminal proceeding.

3. When the petition reached for hearing before me, the only point urged by Mr. Solshe for the petitioner/accused was that because the First Appeal was admitted by this Court, the impugned transaction partakes the character of purely a civil character and that, hence the criminal proceeding was an abuse of the process of Court. When I asked Mr. Solshe as to what was his explanation for dishonouring the cheque, he contended, rather blankly, that he was not bound to answer the question and that the explanation would be given by the accused only in the civil proceedings. But when I pointed out to him that if that was the position, I found no reason to interfere with the order of the lower Court, because it is not as if that a criminal proceeding would not have a civil side also. As is well-known, as against every criminal wrong remedy would lie not only in a criminal Court, but also in a Civil Court. I will expound this aspect of law a little later. But when I put the legal position across to Mr. Solshe, he came out with the plea before this Court that the cheque was not issued by the present petitioner any time at all. He came out with newly cooked story, fresh from the oven, that the employee of the petitioner/accused had misused a blank cheque signed by the complainant and that, in collusion with the complainant, the employee handed over the cheque to the complainant. I asked him as to whether in any proceeding whatsoever at any stage such a plea was taken by the accused. I further asked him as to whether any proceeding was taken by the present petitioner against the said employee. The inevitable answer coming from Mr. Solshe was in the negative. The story was just thrown in the air at the face of the Court, asking the Court either to take it or leave it.

I have gone through the evidence recorded by the trial Court, through the evidence passed by the learned Addl. Sessions Judge, the decree passed by the Civil Court, the Roznama maintained by the Civil Court as also the various applications made by the present petitioner therein. I have also gone through the application for condonation of delay and the reply filed by the present respondent to the same and after going through all these documents, I have not the slightest doubt in my mind that if anybody's conduct can be described as stinking of mala fides, it is the present petitioner's conduct in the instant proceeding.

Further, I am of the confirmed view that merely because a civil proceeding is inevitably filed by the aggrieved person for getting back his money of which he is cheated, the criminality of the cheating transaction does not obliterate itself. It is true that there are several transactions which are of purely civil character. It is true that merely because a party to the transaction who has assured payment of monies does not make the payment, it cannot be said that his intention of not making the payment necessarily stemmed from any criminality. It is further true that what is relevant in this connection is the intention of the person agreeing to pay the monies to the complainant. If his intention was to pay the monies, but if he is thwarted in the actual payment on account of circumstances more or less beyond his control, the Court will not hold that this intention was at all times the criminal intention to avoid payment. In such circumstances, the Court will not impute criminality of intention to him and hence the proceedings instituted by the complainant in a Criminal Court for bringing the accused to book on account of intention to cheat will not be countenanced by this Court and this Court often times quashes such proceedings. But this does not mean that every transaction of non-payment of monies or of dishonour of cheques will always be one of civil character. A number of cases exist in which a person is made to part with monies by false representations and cheques are given to him which are ultimately dishonoured and thereafter innocent person paying monies realises that he has been in fact cheated and that the intention to cheat existed at all the material times. If this is the position, no doubt the remedy of proceeding to Civil Court always exists. But that does not mean that he cannot approach the Criminal Court for having his grievance redressed and for having the accused brought to book. These are the cases of concurrent and dual liability, in the Criminal Court as well as in the Civil Court. As I put it across to Mr. Solshe, practically every criminal act has got a civil remedy, although the converse may not be true. As for instance, civil remedies lie in torts for assault, battery and mayhem, for negligence and defamation; but simultaneously, criminal remedies also lie. The fact that the complainant has taken resort to both the remedies simultaneously does not mean that the case is purely of a civil character. Everything depends upon the facts of the case. There are cases in which the dispute which is purely of a civil character is taken to the precincts of a Criminal Court just with a view to pressurise the bona fide disputant into submitting to the terms of the complainant. This Court has been astute all the times to dissuaded the Criminal Court from entertaining such complaints. If the transaction is purely of a civil character and if this Court finds that a twist and turn of criminality is sought to be given by the complainant to the same, no doubt this Court comes upon the proceeding with a heavy hand and quashes the same. But on all these occasions, this Court notices and perceives that the intention of the complainant was a mala fide one and that a bona fide dispute of a civil character is sought to be converted by the complainant into a criminal proceeding. As will be presently pointed out, the position in the instant case is exactly the reverse. As found by the learned Magistrate as well as by the learned Additional Sessions Judge there is nothing to show that the present respondent has been entertaining any oblique intention at all. On the other hand, the conduct of the present petitioner/accused stinks of mala fides.

4. As is noted above, at no stage either in the lower Court or in this Court, has the petitioner at any time denied the fact:---

(a) that he has actually received the monies from the complainant;

(b) that he has not paid any monies to him in spite of repeated demands;

(c) that he in fact issued a cheque for Rs. 24,500/- in favour of the complainant;

(d) that the cheque came to be dishonoured by the present petitioner;

(e) that no justification for dishonour is even suggested;

(f) that in the Civil Court beyond going about making applications for adjournment, no steps were taken to satisfy the Court that the petitioner had any genuine defence; and

(g) there is no explanation for remaining absent in the lower Court inspite of the strict direction given by the Sessions Court for due attendance.

If this is the position, it cannot be said that the accused has been disputing the respondent's claim bona fide. It does not even appear that there is any bona fide defence to the claim. Hence, it can hardly be said that entertaining of criminal intention cannot be imputed to the present petitioner. Normally, I would be very much reluctant to express my opinion as regards the circumstances indicative of guilty intention of the accused. But the arguments advanced by and the attitude taken by Mr. Solshe, the learned Advocate for the petitioner, leaves me no other option. According to him, the two authorities upon which he relied upon and which I will presently examine completely cover the facts of the case and constitute the law governing this case. According to him, there existed no circumstance indicative of criminal intention even assuming all the facts alleged against him are fully proved. This being the argument, I am required to discuss each of the circumstances brought to my notice which have a great bearing upon the real question involved in these proceedings.

5. Somewhat at the cost of repetition, it must be mentioned that in the instant case the fact that the amount mentioned by the complainant had been received by the petitioner is not denied anywhere, either in the Sessions Court or in this Court. Not even one word was whispered even by Mr. Solshe that the amount was not received by his client.

There is no denial that the cheque for the amount of Rs. 25,500/- was in fact issued by the petitioner to the respondent. There is not a whisper as to why the cheque was issued by him to the complainant. The fact that the cheque was dishonoured by the petitioner is not denied. In what circumstances and for what jurisdiction it was dishonoured is not even indicated. A registered notice was received by the petitioner from the defendant mentioning all these facts. There is not as much as a reply to the same. This fact was specifically asserted by Mr. Badve and conceded by Mr. Solshe during the argument. Even the defendant's conduct during the suit is most anomalous. If the amount claimed in the suit was not owed by the defendant to the plaintiff and if he had any legitimate defence to the suit, the first thing that the defendant would have come forth to the Court would be to set forth the defence. Nothing has been done as regards this. Beyond taking adjournment after adjournment, the defendant has shown no other interest in the civil proceeding. Impression is inescapably created that the only interest of the petitioner is to postpone the evil day and to stave off the unfortunate result. Even in this Court, the conduct of the petitioner is not that of a prompt and bona fide litigant. The appeal itself is filed beyond limitation. Not even any effort is made to have the criminal proceeding stayed. On the other hand, the trial Court had to go to the extent of issuing a non-bailable warrant against the petitioner to ensure his presence in this Court and it is thereafter that the present petition has been filed.

6. Even in this Court when question was asked as to what is the real defence to the suit or to the criminal proceeding, what was drawn by me was blank. A blank statement was made by Mr. Solshe, without remembering that he is an officer of the Court and owes duty to the Court, that the petitioner was not bound to give any answer to this Court and that he would give answer only in the civil proceeding. Contention was that this Court was bound hand and foot to quash the criminal proceedings the moment civil proceedings are found to be pending vis-a-vis the same subject matter. The learned Advocate did not take pains to realise that the proceeding was filed not by the petitioner; it was the present respondent himself who was evidently driven to file the suit because his lawful claim was getting time-barred and because merely on the basis of the criminal proceedings it might not be possible for the respondent to recover the huge amount belonging to himself with which amount the petitioner has helped himself liberally. It was only when I put this legal position across to the learned Advocate that he came out with a belated plea that the cheque was in fact not intended to be given to the respondent. He came out with a beautiful story that some blank cheque was signed by his client, the petitioner, and that the same was misused by his servant in the petitioner's absence and was made over to the respondent by him. I asked Mr. Solshe as to what steps he had taken against the servant. Mr. Solshe had no other answer, except eloquent silence. He could not tell the Court even the name of the employee. He had to concede that this was the plea taken by him for the first time in this Court and that too only in the arguments and that too when his client was not present in the Court at all. When I asked him as to why this statement was not made on affidavit in the petition, Mr. Solshe had no answer. It is, thus, clear that the petitioner has been trying to clutch at any straw in order to save himself from sinking. If all these facts do not lead for a strong prima facie case of criminal intention against the accused, it would be difficult to find any set of facts which give rise to the inference of criminal intention. After all, there can never be any direct evidence about the criminal intention. I make it clear that the above discussion on my part need not be taken as conclusive pronouncement of criminality on the part of the petitioner. I make it clear that although, to my mind, the order passed by the learned Magistrate and confirmed by the Sessions Court suffers from no flaw whatsoever, still the entire question is yet at large and it is for the learned Magistrate to decide whether the totality of the circumstances proved or to be proved against the accused spells criminal intention of cheating on the part of the accused or not. All that I went to point out is that the prima facie existence of the circumstances spelling such intention has been correctly noticed by both the courts below and there is no justification for me to interfere with their order at this stage.

7. This brings me to the two authorities strongly relied upon by Mr. Solshe, almost as his sheet-anchor. Evidently, it is on the basis of these authorities that he himself has advised his client, the petitioner, to file this petition. The 1st Authority is the judgment of the Supreme Court in the well known case of Trilok Singh and others v. Satya Deo Tripathi, : 1980CriLJ822 . In that case, the agreement was in the nature of a hire-purchase agreement. As per the agreement, the purchaser was to pay the purchase price by instalment. There existed a default clause in the agreement, which provided that if the particular number of instalments were not paid, the other party, termed as Financier, had the right to take possession of the truck. The purchaser did commit certain defaults and relying upon the default clause, the Financier did take possession of the truck, alleged by force. The purchaser lodged criminal prosecution against the Financier contending that the forcible taking of possession of the truck amounted to an offence. It was in the context of these facts that the Supreme Court held that the dispute raised by the complainant was purely of a civil character, even assuming that the facts stated by the complainant were substantially correct. The Supreme Court noticed that there existed a right in favour of the financier to take possession of the truck and in exercise of that right he had taken that possession. In this connection, the Supreme Court observed as follows :---

'Even assuming that the appellants either by themselves or in the company of some others went and seized the truck from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck.'

8. The 2nd authority relied upon by Mr. Solshe is the judgment of a learned Single Judge of this Court (S.J. Deshpande, J.) in the case of Sohan Mahabir Prasad Saha & another v. Shyam Sunder Sevramdas Bidawataka, : 1983(1)BomCR13 . Much ado was made by Mr. Solshe of the fact that this too was the case of dishonoured cheque. It is true that even in that case the cheque was dishonoured and the recipient of the cheque had made allegation of cheating against the person issuing the cheque. But when the case went before the Court, the accused had brought to the notice of the Court that he had a bona fide defence to the action for dishonouring of the cheque. The nature of his bona fide defence was brought by him to the notice of the Court and in those circumstances the Court found that the dispute in that case was a bona fide civil dispute. The Court found in that case, as a matter of fact, that the action on the part of the complainant was mala fide action. The Court further found that the complainant in that case was not interested in taking any steps to bring the proceeding to an end at all. The Court specifically found that the complainant was very inactive and was not taking any interest to bring the proceeding to a conclusion. In other words, the Court found that all that the complainant was interested in was to harass the accused even though the accused had a bona fide defence to the claim made by the complainant against him. Now, as stated above, in the instant case, the boot is just on the other foot. In the instant case, the mala fides just out of every action and omission on the part of the accused. In the first place, he has come out with no defence to the main allegation of the complainant. Secondly, he has gone to the extent of allowing the ex parte decree to be passed against him. His entire conduct betokens nothing but indifference. The kind of defence sought to be raised in this Court as explanation for dishonouring of the cheque is a patently cock & bull story, unworthy of credence at least in the context of pleas raised and material brought on record in all these proceedings. In the case, which was being decided by Deshpande, J., the conduct of the complainant spelt mala fides. In the instant case, it is the conduct of the accused which performs that function. It is impossible for me to exercise my jurisdiction under section 482 for giving help of any kind to the person guilty of the conduct indulged in by the petitioner.

9. In connection with both the above authorities one common but significant feature needs to be underscored. In both the cases, it was the accused who had instituted the civil proceedings and had, as such, amply proved his bona fides. The criminal proceeding was, thus, more or less, a counter-blast by the complainant to the civil proceeding bona fide instituted by the accused. That was one of the reasons why it was held that the criminal proceeding was an abuse of the process of the Court. In the instant case, the position is exactly the reverse. The complainant filed the complaint and was thereafter driven to file the suit evidently because of the fear of the law of limitation. There is no question of the abuse of the process of the Criminal Court by the complainant in this case.

10. But there are two larger issues involved.

Firstly, is there any legal justification for contention that a fresh cause of action accrued in favour of the petitioner/accused merely because an ex parte decree was passed against the accused himself in the trial Court?

The petitioner had tried his luck before the Sessions Court. He took a decision adverse to himself in which it was held that the charge framed by the trial Court was perfectly valid and legal. That order has become final. The petition leaves no room for doubt that the order of the Sessions Court is not being challenged before me at all. It is stated before me in so many words that a fresh cause of action arose in favour of the petitioner for getting the proceeding quashed after the ex parte decree was passed by the Civil Court. It is impossible to locate any logic or rationalism in such a plea. If the proceeding instituted by the complainant was bad on account of the abuse of the process of the Court, it was bad right from the beginning. It did not become bad because the Civil Court had accepted the complainant's contention and had in fact passed an ex parte decree against the accused. If at all the fact that an ex parte decree came to be passed against the accused would strengthen the inference of criminality on the part of the accused; in no case it could be said that the decree had the effect of converting the legitimate criminal proceeding into a proceeding constitutive of the abuse of the process of Court.

Moreover, there is the question as to the legality or propriety of invoking this Court's jurisdiction under section 482 of the Code when an order passed by the Sessions Court with almost concurrent jurisdiction is allowed by the petitioner to become final. The principle analogous to res judicata is bound to come into operation and in the absence of special circumstances, this Court must be extremely chary to interfere with the proceeding pending in the trial Court.

That apart, it needs to be mentioned that there exists certain amount of mis-apprehension in the minds of the officers of the Court, particularly the criminal lawyers, that every case in which a civil action lies is one in which criminal proceeding must be held to be a taboo. I do not see any justification for such an extreme view. There are cases where the liability is purely a civil liability and no criminal liability can be conceived of. The Supreme Court was dealing in Trilok Singh's case with a situation of this character. Similar was the position with which my learned brother Judge S.J. Deshpande was dealing in Sohan Mahabir Prasad Saha's case. But there are cases where there is a simultaneous liability under the Civil Law as well as under the Criminal Law. Instances of this category are legion. A simplest illustration would prove this point. In a given case, the Criminal Court may find that 'A' has cheated 'B' and has enriched himself with scores of thousands of rupees belonging to 'B'. The Court might convict him and sentence him. But the fact that such a conviction was obtainable would not mean that 'B' would have no civil remedy against ''A'. 'B' could always file a suit against 'A' to recover the amount of scores of thousands with which 'A' has enriched himself and the fact that 'A' has been convicted by the Court would not mean that the Civil Court would have no jurisdiction to pass a sic against him. This is an evident illustration of concurrent liability. In our Law, such situations are galore. For acts of negligence there is the criminal remedy under the Penal Code and civil remedy under the law of Torts, for acts of deceit, of conversation, of defamation, of assault and battery and what not. These are the instances of concurrent liability. The fact that exists a civil liability does not mean that criminal liability is ruled out. Everything depends upon the facts of each case. The facts of the present case are of such a gross character that it would be an error to assume that the criminal intention can never be imputed against the present petitioner. It may be that after the entire evidence is led, the petitioner will still be able to satisfy the Court that his intention really was not criminal, or he may even be entitled to tell the Court that the evidence led by the plaintiff, after the same has been subjected to cross-examination, does not facilitate the inference of criminal intention. But all that is a question of evidence yet to be led.

11. Having regard to all these facts, I am of the opinion that even though the above mentioned First Appeal is pending in this Court, there is no merit in the present petition at all.

The petition, therefore, fails and the same is hereby dismissed. The Rule earlier issued is discharged.

The petitioner is ordered to present himself before the trial Court on 24-6-1985.


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