IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 18th DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.898 of 2009 BETWEEN: Konda Reddy Pattabhi Ram Reddy …PETITIONER(S) And State of A.P., through Public Prosecutor, High Court of A.P. and another …RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.898 of 2009 ORDER: The point that arises for determination in this criminal petition which is filed under Section 482 of Cr.P.C. is whether the proceedings in a calendar case i.e. C.C.No.1305 of 2005 registered for an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act (for short ‘the Act’) on the file of the Court of VII Metropolitan Magistrate, Hayathnagar, Cyberabad, should be quashed in view of the dismissal of a corresponding money suit O.S.No.621 of 2005 on the file of the Court of V Senior Civil Judge, City Civil Court, Hyderabad. 2. On the date when this criminal petition came up for admission, notice was ordered to respondents and petitioner was also permitted to serve the notice on the second respondent personally, but the record shows that notice was not served on him. Thereafter the petitioner’s counsel and the Additional Public Prosecutor were heard and this petition has been taken up for disposal at the admission stage. 3. The point arises in the following circumstances. The petitioner in this petition is the accused in C.C.No.1306 of 2005 on the file of the Court VII Metropolitan Magistrate, Hayathnagar, Cyberabad (for short ‘Criminal Court’). The second respondent herein is the complainant in the above criminal case while the first respondent is the State of A.P. represented by the Public Prosecutor. 4. The second respondent filed the C.C.No.1305 of 2005 against the petitioner on the allegations that the two cheques, one dated 06.12.2003 for Rs.2,50,000/- and the other dated 11.03.2004 for Rs.3,50,000/- issued by the petitioner and drawn on Barkatpura Branch of State Bank of India were dishonoured on 12.03.2004 for want of sufficient funds in the account of the petitioner. The case of the second respondent is that the above two cheques were issued by the petitioner in discharge of a loan of Rs.6 lakhs taken from him by the petitioner under a promissory note dated 05.01.2003 executed by him and therefore the said cheques were issued in connection with a subsisting debt and consequently the dishonour of the two cheques amounts to an offence under Section 138 read with Section 142 of the Act on the part of the petitioner. The other details are not necessary for the purpose of the present petition as this Court cannot go into the merits of the matter. The criminal Court took cognizance of the case and issued process. 5. The plea of the petitioner is that along with the above criminal case or just before or after the filing of the said criminal case, the second respondent also brought a suit i.e. O.S.No.621 of 2005 against him in the Court of V Senior Civil Judge, City Civil Court, Hyderabad (civil Court), for recovery of a sum of Rs.7,56,000/- i.e. for the principal amount of Rs.6 lakhs covered by the above two cheques and the promissory note mentioned supra and interest. His further plea is that after a contest the said suit was dismissed by the civil Court on 25.01.2008 upholding his plea that he discharged the pronote amount and that therefore the second respondent is not entitled to any amount including the amounts under the cheques. The petitioner’s further case is that the said judgment and decree in O.S.No.621 of 2005 became final and therefore the proceedings in C.C.No.1305 of 2005 should be quashed as the civil Court’s judgment in the suit is binding on the criminal Court. This is the only ground on which this criminal petition has been filed and this is very much evident from the averments in this petition. The exact stage of the C.C.No.1305 of 2005 is not known as no records were called for as this petition has been taken up for disposal at the admission stage. The point is now taken up. 6. The whole argument of the learned counsel for the petitioner is that since the civil suit has been dismissed the proceedings in the criminal case should also be quashed. The petitioner’s counsel filed a copy of the judgment of the civil Court in O.S.No.621 of 2005. A perusal of the said judgment shows that the case pleaded by the second respondent i.e. the plaintiff in the said suit and the case pleaded by him in the criminal case are no doubt identical. The numbers of the two cheques and the Bank on which they were drawn and the amounts covered by them and also the date of the pronote mentioned in the complaint in C.C.No.1305 of 2005 tally with those mentioned in the judgment in O.S.No.621 of 2005, the only difference being that the interest amount is also claimed in the suit. A perusal of the plaint copy in O.S.No.621 of 2005 and the complaint in C.C.No.1305 of 2005 would show that the parties to both are same with the 2nd defendant in the suit shown as guarantor. 7. To answer the point, the legal position relating to the question whether a civil Court’s judgment is binding on the criminal Court and vice versa where the parties to both the proceedings are same and when the cause of action in the civil suit and the facts in issue in the criminal case are similar should be noted. Sections 40 to 44 of the Evidence Act lay down the legal position regarding relevancy of judgments. This question is no longer res integra. 8. The legal position on this aspect has already been, after considering the previous case law on the point, authoritatively decided by a three-Judge Bench of our Supreme Court in K.G. PREMSHANKER vs. INSPECTOR OF POLICE[1]. This was a case where a criminal prosecution or proceedings relating to offences under Sections 143, 323 and 324 etc., of the I.P.C. were sought to be quashed on the ground that the corresponding civil suits for damages filed by the victim were dismissed by the trial Court. However, by the date the matter was decided by the Supreme Court the judgments and the decree of the trial Court dismissing the suits were set aside in appeal and remanded to the trial Court for fresh disposal. Notwithstanding the above fact, our Supreme Court held in the above case after considering Sections 40 to 43 of the Evidence Act that the decision of a civil Court is not binding on a criminal Court and vice versa and each Court can decide the controversy on the evidence let in before it and the decision first rendered may be relevant in the other pending matter but such decision is not binding regarding appreciation of evidence. In concluding so, their lordships held that the observation made in V.M.SHAH vs. STATE OF MAHARASHTRA[2] that the finding recorded by the criminal court stand superseded by the finding recorded by the civil Court is not correct enunciation of law. It appears the learned counsel for the petitioner did not see the above decision, but it may be noted even if the matter is re-opened and he is heard again to explain the above decision he cannot improve his case as the law is now settled. Hence, the matter has not been re-opened. 9. The legal position obtaining from Sections 40 to 44 of the Evidence Act relating to the present matter on the point as stated in the above decision of the Supreme Court can be stated as follows. Section 40 of the Evidence Act says that the existence of any judgment, order or decree which by law prevents any Court from taking cognizance of the suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. Admittedly, in this case Sections 138 to 147 of the Act do not lay down that when a corresponding civil suit is dismissed by a civil Court and that judgment became final, the criminal court should not take cognizance of or proceed with the proceedings in the criminal case filed for the offence under Section 138 of the said Act. Hence, the judgment of the civil Court in the present case would not become relevant under Section 40 of the Evidence Act. 10. It may be noted that Section 40 of the Evidence Act is intended to cover those cases where a second suit is barred on the principle of res judicata enacted in Section 11 C.P.C. or a second trial is barred on the criminal side on the principle of autre fois acquit or autre fois convict or any other law which bars a second suit or a second trial on a criminal side. The aforesaid situations do not have application here. 11. Then coming to Section 41 of the Evidence Act it speaks about relevancy of judgments of a competent court given in exercise of probate, matrimonial and admiralty or insolvency jurisdiction and makes them conclusive proof of what they decide. The judgment of the civil Court in the present case does not come under any of those categories. Then Section 42 of the Evidence Act deals with judgments, orders or decrees other than those falling under Section 41, and makes them relevant if they relate to matters of a public nature relevant to the subsequent enquiry and this provision is also not applicable to the civil Court’s judgment in question as no matter of a public nature is involved. Section 44 of the Evidence Act deals with judgments, orders or decrees obtained by fraud or collusion and in substance it says that even if such judgments fall under Sections 40, 41 or 42 they will not be relevant on the principle that fraud vitiates every thing. This Section 44 is not applicable here. 12. It may then be noted that Section 43 of the Evidence Act says judgments, orders or decrees not falling under Sections 40, 41 and 42 of the Evidence Act are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Evidence Act. The existence of the present civil Court’s judgment relied upon may in view of this Section be pleaded as relevant to the facts in issue in C.C.No.1305 of 2005 but then also it cannot be said to be binding on the criminal Court dealing with the said C.C. The learned counsel for the petitioner could not bring to my notice any other provision of law under which the present civil Court judgment can be held to be binding on the criminal court dealing with C.C.No.1305 of 2005. 13. Thus the contention of the learned counsel for the petitioner that because of the dismissal judgment passed in the civil suit O.S.No.621 of 2005 the proceedings in the criminal case C.C.No.1305 of 2005 should be quashed cannot be accepted even assuming for a moment that the civil Court’s judgment has become final. One plea which was raised is that if criminal case is now proceeded to be taken up for disposal on merits that may result in conflict of judgments, but this aspect has been considered and was rejected in the above referred to Supreme Court decision. It shall however be open for the petitioner to rely upon the said civil Court judgment if it has become final to show that it is relevant for his defence in the said criminal case and the criminal Court may consider it having regard to the principles laid down in K.G. PREMSHANKER’s case (1 supra). The point is accordingly decided against the petitioner and this criminal petition is dismissed. The trial Court can proceed to dispose of the criminal case in accordance with law. No other points have been raised. ______________________ N. RAVI SHANKAR, J 18th January, 2011. CVRK [1] 2002 (8) SCC 87 [2] (1995) 5 SCC 767