- Section 40- Vishnu Dutt Sharma v. Daya Sapra
- Bench: S.B Sinha
Facts:
In the present case, the 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'.
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. He also filed a suit for recovery of a sum of Rs. 2,04,000.
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, where after 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
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
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. 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 law.
Issues:
Whether the previous judgment of a criminal proceeding would be relevant in a civil suit
Contentions of Appellant
The appellant contended that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that the principle of res-judicata is not applicable in the facts and circumstances of the case.
Contentions of Respondent
The respondent submitted that having regard to the fact that both in the civil as also in the criminal proceeding, the burden was on the defendant-accused and he having successfully discharged the same, the appellant could not have been allowed to continue the civil proceedings in view of the judgment rendered by the criminal court. The plaint was, on the said premise, directed to be rejected.
Judgment:
The court held that under the principle laid down under section 40 of the evidence act would only be applicable if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute and it does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. Therefore, any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding.
