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Leave granted.
2. Appellant herein challenges judgment and order dated 23rd January, 2018
passed in Crl.R.P. No.1111 of 20111, whereby the High Court of Kerala allowed,
only in part, his Revision Petition against the judgment and order of the learned
Additional Sessions Judge, Thrissur,2 dated 11th January, 2011, in Criminal
Appeal No.673 of 2007, which, in turn, upheld his conviction, as handed down
by the learned Judicial First Class Magistrate3 vide order dated 14th August, 2007 in CC No.51 of 2003, under Section 138 of the Negotiable Instruments
Act, 1881.
3. The sole issue that we are required to consider is, whether, a criminal
proceeding can be initiated and the accused therein held guilty with natural
consequences thereof to follow, in connection with a transaction, in respect of
which a decree by a competent Court of civil jurisdiction, already stands passed.
4. The facts necessary to put into perspective the issue in the present appeal
are:-
The Appellant borrowed Rs.2,00,000/- from the Complainant,
K.P.B Menon “Sreyes," with the promise that he would repay it on
demand.
On receipt of such demand, he issued a cheque dated 30th June,
2002 for the said amount from the South Indian Bank, encashment
thereof was to be through Canara Bank, Irinjalakuda Branch, to which
the cheque was sent through the post with a covering letter dated 24th
September, 2002.
It was dishonoured due to insufficient funds and ‘payments stopped
by drawer’. The Complainant came to know of such dishonour and
issued a notice of demand dated 22nd December, 2002. Accounting for
no action on the part of the appellant, the complaint, the subject matter of the instant proceedings, came to be filed. Equally, though, the appellant (accused) had filed Original Suit No.1338
of 2002. The five parties impleaded as defendants were, (i) K.P. Bhaskara
Menon; (ii) K.P. Vipinendra Kumar5; (iii) Praveen Menon; (iv) The Manager
South Indian Bank Limited Kathikudam, Via Koratty, Trichur; and (v) N.T.
Raghunandanan. The prayers made therein were to, (a) declare cheque
No.386543 of the South Indian Bank Limited, Kathikudam, as a security
cheque; (b) issue mandatory injunction directing the 1st defendant to return the
said cheque; and (c) issue a permanent prohibitory injunction restraining
defendants 1 to 4 named hereinabove from taking any steps to encash the said
cheque. The Additional District Munsif, Irinjalakuda, decreed the Suit on
11th April, 2003 in favour of the plaintiff (accused). The Suit in respect of
defendant No.4, namely the Manager, South Indian Bank, was dismissed
and the Suit was wholly decreed against the remaining defendants.
5.2 Defendant No.1 filed an appeal before the Additional Subordinate
Judge, Irinjalakuda in C.M.A.No.6/2006. In its judgment dated 30th
January, 2007, the Court observed that “The lower court correctly
analysed the facts and arrived at the right conclusion. I find no reason to
interfere the order of the lower court. Hence I dismissed this appeal.”
Therefore, it appears from the record that the very same cheque was in
issue before the Civil Court and also the Court seized of the Section 138 N.I.
Act complaint.
The conclusions drawn by the Courts below, subject matter of the instant lis, are
as under:
6.1 The Trial Court convicted the appellant herein to undergo simple
imprisonment for one year as well as pay compensation of Rs.2 lakhs in
default whereof, he was to undergo further simple imprisonment for six
months. The determination of the issues, i.e., whether the decree passed by
the Munsif Court would be binding on it, is of note. It was observed that a
Court exercising jurisdiction on the criminal side is not subordinate to the
Civil Court. Further, it was held “That order was an ex-parte order as far
as criminal complaint is concerned the order of injunction issued cannot be
granted and the hands of the criminal court cannot be fettered by the civil
court”.
7. The High Court, in revision, observed that no perversity could be
indicated in the concurrent findings of the Trial Court and First Appellate Court.
The same was dismissed.
8. We find the manner in which this matter has travelled up to this Court to
be quite concerning. We fail to understand as to how a civil as well as criminal
course could be adopted by the parties involved, in respect of the very same
issue and transaction, in these peculiar facts and circumstances.
“…….It is a well-established principle of law that the
decisions of the civil courts are binding on the criminal
courts. The converse is not true.”
13. The appeal is allowed in the aforesaid terms. Hence, the judgment and
order passed by Additional Sessions Judge, Thrissur, in Criminal Appeal 673 of
2007, which upheld the conviction, as handed down by the learned Judicial First
Class Magistrate in CC No. 51 of 2003, which came to affirmed by the High
Court of Kerela in Crl.R.P.No.1111 of 2011 is quashed and set aside. Pending
application(s), if any, shall stand disposed of.