2019 Supreme(Kar) 1687

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
BELLUNKE A.S., J.
Chandrashekhar S/o Channaveerappa Mundasad - Appellant
Versus
Smt. Lata W/o Chanabasappa Badami - Respondent
Crl.A.No.100079 of 2019
Decided On : 24-04-2019

Headnote:

Indian Evidence Act - Sections 41 to 43 - Indian Penal Code - Section 420, 463, 464, 468, 34 - Criminal Procedure Code, 1973 - Section 378(4) - Finance Act, 1972 - Order of acquittal - Complaint to deliver promissory note in order to commit cheating - Whether appellant had made out a ground to grant special leave to prefer an appeal against impugned order - Whether appellant had made out grounds that accused had committed an offence punishable under Section 420 of IPC by producing a created promissory note by forging signature of complainant and filed same - Whether there are any grounds to grant special leave to complainant to prefer this appeal - Whether prosecution proves beyond all reasonable doubts that accused No.1 dishonestly induced complaint to deliver promissory note in order to commit cheating and thereby committed offices punishable U/Sec 420 of IPC - Whether complainant could have prosecuted accused for offence punishable under Section 420 of IPC - Facts of case in brief are that a private complaint was filed by complainant alleging offences punishable under Section 420, 463, 464, 468 read with section 34 of Indian Penal Code against accused Nos.1 and 2 who are husband and wife - 2nd accused was running Share Company since many years - Complainant was also having transaction with accused No.2 in said Company - During his transaction he has never issued any promissory note to accused No.2 - Accused No.1 is not member of said share Company - Even complainant has no acquaintance of this accused - He has no monitory transaction with accused - Even then accused No.1 and 2 in collusion with each other taking undue advantage of innocence of complainant got created an on demand pro-note alleging that complainant had borrowed an amount from 1st accused - Whereas no such transaction or any kind of transaction had taken place between complainant and accused No.1 - Said promissory note was created and signature of this complainant was forged - 1st accused had filed suit against complainant on said promissory note before 1st Additional Senior Civil Judge – Held, In view of language used in Section 340 Criminal Procedure Code Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b) as Section is conditioned by words Court is of opinion that it is expedient in interest of justice - This shows that such a course will be adopted only if interest of justice requires and not in every case - Before filing of complaint Court may hold a preliminary enquiry and record a finding to effect that it is expedient in interests of justice that enquiry should be made into any of offences referred to in Section 195(i)(b) - This expediency will normally be judged by Court by weighing not magnitude of injury suffered by person affected by such forgery or forged document but having regard to effect or impact such commission of offence has upon administration of justice - It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in sense that it may deprive him of a very valuable property or status or like but such document may be just a piece of evidence produced or given in evidence in Court where voluminous evidence may have been adduced and effect of such piece of evidence on broad concept of administration of justice may be minimal - Section which court are required to interpret is not a penal provision but is part of a procedural law namely Code of Criminal Procedure which elaborately gives procedure for trial of criminal cases - Provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court - A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against State whatever is character of penalty for offence - Principle that a penal statute should be strictly construed as projected by learned counsel for appellants can therefore have no application here - Coming to last contention that an effort should be made to avoid conflict of findings between civil and criminal Courts it is necessary to point out that standard of proof required in two proceedings are entirely different - Civil cases are decided on basis of preponderance of evidence while in a criminal case entire burden lies on prosecution and proof beyond reasonable doubt has to be given - There is neither any statutory provision nor any legal principle that findings recorded in one proceeding may be treated as final or binding in other as both cases have to be decided on basis of evidence adduced therein - While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code following observations made by a Constitution Bench give a complete answer to problem posed - As between civil and criminal proceedings court are of opinion that criminal matters should be given precedence - There is some difference of opinion in High Courts of India on this point - No hard and fast rule can be laid down but court do not consider that possibility of conflicting decisions in civil and criminal Courts is a relevant consideration - Law envisages such an eventuality when it expressly refrains from making decision of one Court binding on other or even relevant except for certain limited purposes such as sentence or damages - Only relevant consideration here is likelihood of embarrassment - Another factor which weighs with court is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about crime - Public interests demand that criminal justice should be swift and sure that guilty should be punished while events are still fresh in public mind and that innocent should be absolved as early as is consistent with a fair and impartial trial - Another reason is that it is undesirable to let things slide till memories have grown too dim to trust - This however is not a hard and fast rule - Special considerations obtaining in any particular case might make some other course more expedient and just - For example civil case or other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476 - But in this case court are of view that civil suits should be stayed till criminal proceedings have finished – Appeal dismissed