Judgment:
I. Mahanty, J.
1. In this revision petition under Section 401 read with Section 482 of the Code of Criminal procedure, the Petitioner, herein Mrutunjaya Chand, has sought to challenge the Order Dated. 8.3.2007 passed by the Learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 14 of 2006, whereby the Petitioners' prayer to stay the further proceeding and the trial of the case till disposal of the C.S. No. 470 of 2005 pending in the court of the Civil Judge (Senior Division), Puri was rejected.
2. Learned Counsel appearing for the Petitioner submits that the Petitioner had filed C.S. No. 470 of 2005 seeking a declaration to the effect that he had no liabilities by the time the cheques were presented for clearance. Learned Counsel further submits that since the Civil Suit had already been initiated much prior to the present complaint case, complaint case should have been adjourned till Civil Suit was decided, wherein the liabilities of the Petitioner would be determined. He accordingly submits that only after the liability is determined, in the civil suit the present complaint case may be proceeded with.
In that respect, the Learned Counsel for the Petitioner has relied on a Judgment of the Calcutta High Court in the case of Anil Kumar Parolia v. Md. Shafique Khan reported in 1999-DCR (Dishonour of Cheque Reporter)-554. In the said case, the Hon'ble Single Judge of the Calcutta High Court came to the conclusion that although there is nothing to quash the criminal proceeding at this stage, it is all the more essential that the criminal proceeding should be stayed till the decision of the civil suit.
3. Shri N .Patra, Learned Counsel appearing for the Opposite Party-complainant contended that the plea of the Petitioner is totally baseless and that the Petitioner had initiated the Civil Suit only in the form of defence to the proceeding under Section 138 of N.I. Act. He further submitted that the cheques issued by the Petitioner were dishonoured due to insufficiency of funds in the account of the Petitioner and it is only after statutory notice under Section 138 of N.I. Act was served on the Petitioner on 28.11.2005, that the Petitioner had filed the Civil Suit No. 470 of 2005. He further contended that it is well settled in law that pendency of the civil litigation between the parties is not a ground to stay the criminal proceeding of the case, even though the civil and criminal proceedings were related to each other.
Shri Patra, Learned Counsel for the Opposite Party placed reliance on a decision of the Hon'ble Supreme Court, in the case of P. Venugopal v. Madan P. Sarathi, : AIR 2009 SC 568. He further submits that under Section 309 of the Cr.P.C. in every inquiry or trial the proceeding shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined. He further contended that in the case at hand, while the complaint petition was filed on 2.1.2006, the initial statement was recorded on 3.2.2006, and the complainant's examination-in-chief was held on 6.2.2007, after serving copy on the other side.
It is stated by the Learned Counsel for the Opposite Party that only after one year of registration of the complaint case, the accused-Petitioner filed a petition with a prayer to stay the further proceeding of the said case till disposal of the civil suit between the parties. From this fact, it is contended by the Learned Counsel appearing for the Opposite Party that a petition for adjournment or discontinuance of the trial was merely a dilatory tactic, to frustrate and/or to delay the conclusion of the trial. Therefore, the revision may be dismissed, so that the trial can be proceeded.
4. In view of the submissions of the Learned Counsel for both the parties, as recorded herein above, and at the out set it can be safely recorded that the law is well settled that the remedies claimed in the civil and criminal remedy are independent to each other and the outcome of both would depend upon the evidence that may be led by either side, in each proceeding.
5. Learned Counsel for the Petitioner fairly admits that the civil suit in question was initiated by the Petitioner only on 24.12.2005, whereas the Petitioner had, in fact, received the copy of the notice under Section 138 of N.I. Act on 28.11.2005. Therefore, it is clear that the Civil Suit was filed only after receipt of the statutory notice Under Section 138 of N.I. Act.
6. In the Judgment of the Calcutta High Court, in the case of Anil Kumar Parolia (supra), the Learned Single Judge while noting that there was nothing to quash the criminal proceeding at that stage, yet the Court issued direction to stay the criminal proceeding till disposal of the civil suit. In the very same case, the Learned Single Judge has noted that in the facts of the said case, the dishonour of the cheque was not on the ground of insufficiency of fund or that the amount exceeds the arrangement. Therefore, in the light of the facts in the said case, the Learned Single Judge of the Calcutta High Court concluded that it was a case in which liability of the parties is to be determined first and it is to be ascertained whether the transport company made any neglect in the matter of storage of the materials alleged to have been entrusted by the Petitioner's company to them and in the event of such a finding, whether there was any loss sustained by the Petitioner's company and if so, the extent of the said loss.
7. The facts of the present case are completely distinct and are no way related to the facts which arose for consideration in the aforesaid case. In the case at hand, the cheque had been issued by the Petitioner was dishonoured on the ground of 'insufficiency of fund'. In the present case, there is no requirement for a determination of loss being sustained by the Opposite Party. I am of the view that the Learned Single Judge of the Calcutta High Court, failed to take into consideration the implication of Section. 139 of N.I. Act. The same is quoted herein below:
139. Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.
8. The presumption of law available under Section 139 of N.I. Act can be rebutted by adducing evidence to the contrary as held by the Hon'ble Supreme Court in the case of P. Venugopal v. Madan P. Sarathi (supra). Such a presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability, which is required to be proved by the complainant.
9. In the light of the aforesaid provision of law as well as the Judgment of the Hon'ble Supreme Court noted hereinabove, I am of the considered view that there is no merit in the present revision and accordingly the same is dismissed.
Since the matter relates to the year 2006, the Trial Court is directed to dispose the same expeditiously without being influenced by any observations made in this case since the findings herein are confined to the determination of the present revision petition alone.