JUDGMENT:

S.B. SINHA, J :

1. Leave granted.

2. Whether in a suit for recovery of money on a cheque issued by the defendant but dishonoured, the amount received by the plaintiff-creditor in a criminal proceeding should be adjusted, is the core question involved herein.

3. Plaintiff - Respondent filed a suit against the appellants, which was marked as O.S. No. 1844 of 2004, for recovery of a sum of Rs. 3,09,000/- with interest. In the plaint, it was averred that Shri K. Balasubramanyam (father of the respondent) and Defendant No. 1 (Appellant No. 1 herein) were good friends. Defendant Nos. 1 and 2 had been carrying on business. They approached the plaintiff through Shri K. Balasubramanyam for financial assistance and obtained a loan of Rs. 2,00,000/- (Rs. 1,00,000/- on 15.03.2001 and Rs. 1,00,000/- on 25.03.2001). Two promissory notes were also executed therefor.

4. Defendants - Appellants purported to be in discharge of the said debt issued two cheques bearing Nos. 3960 dated 15.03.2003 and 3959 dated 31.05.2003 drawn on Bank of India, which on presentation, were returned dishonoured. Indisputably, a complaint under Section 200 of the Code of Criminal Procedure, 1973 read with Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short "the Act"), marked as C.C. No. 19337 of 2003, was filed. A judgment of conviction and sentence against the appellant was passed therein by an order dated 15.12.2005 sentencing him to pay a sum of Rs. 2,10,000 by way of fine and in default thereof to undergo simple imprisonment for a period of three months. It was also directed that out of the said amount of fine, a sum of Rs. 2,00,000/- would be paid to the complainant by way of compensation in terms of Section 357 of the Code of Criminal Procedure (for short "the Code") and the remaining amount was to be payable to the State. In the said criminal proceedings, the appellants deposited a sum of Rs. 31,500/- on 7.02.2006, Rs. 68,500/- on 21.07.2006 and Rs. 1,10,000/- on 13.12.2006.

5. O.S. No. 1844 of 2004 was decreed by the Trial Court by a judgment and order dated 23.01.2006, ordering:

"This suit is hereby decreed for a sum of Rs. 3,09,000/- (Rupees three lakhs nine thousand only) with court costs and current interest at 6% p.a. on the principal amount of Rs. 2,00,000/- from the date of suit till realization. The defendants are jointly and severally liable to pay the decrial amount."

6. In the civil proceedings also, the appellants admittedly have deposited a sum of Rs. 1,90,000/-. An appeal was preferred thereagainst before the High Court of Karnataka at Bangalore marked as R.F.A. No. 1171 of 2006, which by reason of the impugned judgment has been dismissed.

7. The principal contention raised herein is that the Trial Court and consequently the High Court committed a serious error in decreeing the suit in its entirety, i.e., for a sum of Rs. 3,09,000/- with interest without taking into consideration the fact that an amount of Rs. 2,10,000/- had already been deposited by the appellants in the said criminal proceedings.

8. Contention of the respondent, however, is that as the said question was not and could not have been raised before the Trial Court, the impugned judgment is sustainable. It was furthermore urged that in view of the well-settled principle of law that pendency of a criminal matter would not be an impediment in proceeding with a civil suit, the impugned judgment should not be interfered with.

9. A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of Section 138 of the Act would also be maintainable.

10. The question, however, is as to whether the courts in one proceeding can issue directions to deposit amount in favour of the plaintiff without taking into consideration the amount deposited by the defendant in the other.

11. We have noticed hereinbefore that