Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 29TH 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 29TH 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 29th 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 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