Case: Vishnu Dutt Sharma Vs. Daya Sapra

Respondent borrowed a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) from the appellant herein on or about 10th August, 1999. On a demand having been made in that regard by the appellant, the respondent issued a cheque for the aforementioned sum on or about 20th October, 1999. The said cheque was presented by the appellant to the Oriental Bank of Commerce, Shahdra, Delhi, but the cheque was received back by the appellant with remarks `insufficient funds.3. A complaint petition was filed by the appellant against the respondent for alleged commission of offences under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code on 29-01-2000. He also filed a suit for recovery of a sum of Rs. 2,04,000/- on 19-10-2002 in the Court of Senior Civil Judge at Delhi which was marked as Suit No. 253 of 2003.Both in the criminal as also in the civil proceedings the defence raised by the respondent was that she had not taken any loan from the appellant as alleged or at all. It was furthermore asserted that the cheque issued by her was not in respect of repayment of any loan, since no such loan had been taken.Respondent urged that the appellant had met her husband who was a property dealer in connection with some business who made a representation that pertaining to the same deal the police had to be bribed, whereafter on 10-08-1999 the appellant accompanied by one Ms. Malhotra, retired ACP and his son came to the office of her husband and forcibly took the cheque in question from her husband since the cheque book was with him.4. By reason of the Judgment dated 26-09-2003, the learned Sessions Judge recorded a judgment of acquittal in favour of the respondent holding that he had successfully proved that the cheque in question was not issued to the complainant by way of repayment of any loan.5. Respondent thereafter during the pendency of the trial suit filed an application in the said civil suit purported to be under Order 7 Rule 11 (d) read with Section 151 of the Code of Civil Procedure for rejection of the plaint on the ground that the criminal complaint had already been dismissed.The learned Civil Judge dismissed the said application inter alia opining that the findings of a criminal court in the proceeding under Section 138 of the Negotiable Instruments Act would not operate as `res judicata in the civil suit for recovery of money as the nature of proceeding in both the cases was different.6. Respondent approached the High Court in a writ petition questioning the order of dismissal of the said application and praying inter alia for the followingTo set aside and quash the impugned order dated 17.3.2007 passed by the Honble Court of Shri Shailender Malik, Civil Judge, Delhi in Suit No. 356/06/02 titled as "Vishnu Dutt Sharma Vs. Daya Sapra; and (2) Pass such other further orders as this Honble Court deems just and proper in the facts and circumstances of the matter.By reason of the impugned Judgment the High Court allowed the said writ petition. The High Court in arriving at its finding applied the principles of res-judicata. It also opined that the suit filed by the appellant was nothing but an abuse of the process of

Reasoning: 32. In view of these authoritative pronouncements, we have no doubt in our mind that principles of res judicata are not applicable in the facts and circumstances of this case.