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2016 Supreme(Bom) 1182
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
V.K. JADHAV, J.
Digamber s/o Madhavrao Uchale - Applicant
Versus
Prakash s/o Madhav Solanke - Respondent
CRIMINAL APPLICATION NO. 2217 OF 2005
Decided On : 15-09-2016
For the Applicant : Mr. P.G. Godhamgaonkar h/f Mr. M.D. Godhamgaonkar.
For the Respondent: Mr. D.Y. Nandedkar.
The findings of the civil court did not supersede the criminal proceedings, and the doctrine of merger did not apply to the case.
Headnote:
Negotiable Instruments Act - Discharge application - Sections 138, 40-43 of Evidence Act - The court discussed the relevance and effect of judgments in civil and criminal proceedings, the doctrine of merger, and the maxim 'approbate and reprobate' in the context of a complaint under Section 138 of the Negotiable Instruments Act. The court held that the findings of the civil court did not supersede the criminal proceedings and rejected the discharge application.
Fact of the Case:
The respondent complainant loaned Rs.1,00,000 to the applicant-accused for his daughter's marriage. When the accused failed to repay, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act after the cheque issued by the accused was dishonoured.
Finding of the Court:
The court held that the findings of the civil court did not supersede the criminal proceedings and rejected the discharge application.
Issues: Relevance and effect of judgments in civil and criminal proceedings, doctrine of merger, maxim 'approbate and reprobate', and applicability of Article 20 of the Constitution of India.
Ratio Decidendi: The findings of the civil court did not supersede the criminal proceedings. The doctrine of merger did not apply to the case. The maxim 'approbate and reprobate' is only applicable to reliefs claimed in respect of the same transaction and to the parties involved. Article 20 of the Constitution of India was not relevant to the case.
Final Decision: The court rejected the discharge application and refused to extend the interim relief.
1. Being aggrieved by the order dated 1.8.2005 passed by the learned Chief Judicial Magistrate, Nanded below Exh.39 in S.C.C. No. 1687 of 1997, the original accused has preferred present criminal application.
2. Brief facts, giving rise to the present application are as follows:-
(a) The respondent complainant was serving as sectional Engineer at Masoli project, sub division Janapuri, Tq. Loha, District Nanded and his remotely related sister is the wife of applicant original accused. The applicant accused is serving as Manager with State Bank of Hyderabad. In the month of October-December, 1996, the applicant accused had approached the complainant and requested for hand loan of Rs.1,25,000/- for the purpose of marriage of his daughter Kum. Sujata. Thus, considering the request of the accused and his persuasions thereto, respondent complainant obtained a sum of Rs.1,00,000/- from his father in law on 29.12.1996 and paid the same to the applicant-accused as a hand-loan with condition to repay the said amount within four months.
(b) Since the applicant accused failed to repay the said amount within stipulated period, the respondent complainant approached him on 1.5.1997 and made a demand of the said amount. The applicant accused had accordingly issued a cheque dated 1.5.1997 drawn on State Bank of Hyderabad, Branch Mukhed in favour of the respondent complainant. Though the respondent complainant has deposited the said cheque in his saving bank account with State bank of Hyderabad, Nanded. however, the said cheque was dishonoured with endorsement that 'payment is stopped by the drawer'. Consequently, the respondent complainant has issued a demand notice calling upon applicant-accused to pay sum of Rs.1,00,000/- within 15 days. The notice was duly served on the applicant and even the applicant accused gave reply to the said notice through his advocate. The applicant accused has denied the liability in toto to pay the amount under cheque.
(c) Thus, the respondent complainant constrained to file complaint under Section 138 of Negotiable Instruments Act against the applicant-accused before the Chief Judicial Magistrate, Nanded and the same is accordingly registered as S.C.C. No.1687 of 1997. The applicant accused on his appearance before the learned C.J.M. Nanded filed an application below Exh.39 and claimed discharge mainly on the ground that Special Civil Suit No. 9 of 2000 instituted by the respondent-complainant for the same cause, came to be dismissed by the Civil Court and thus, the finding recorded in the said Civil Suit are binding on the criminal court. Learned C.J.M. Nanded by its impugned order dated 1.8.2005 rejected the said application Exh.39. Hence, this criminal application.
3. Learned counsel for the applicant submits that during pendency of Summary Criminal Case No. 1687 of 1997, the respondent original complainant instituted Special Civil Suit No. 9 of 2000 against the applicant accused before the learned C.J.S.D. Nanded for recovery of amount of Rs.1,36,000/-, which includes principal amount of Rs.1,00,000/- and Rs.36,000/- as an interest. The respondent original complainant had instituted the said suit in respect of the same transaction, which is subject matter of S.C.C. No. 1687 of 1997. The learned C.J.S.D. Nanded by judgment an decree dated 2.1.2004 dismissed the Special Civil Suit No. 9 of 2000 with costs by recording negative finding in so far as the transaction of paying sum of Rs.1,00,000/- as hand loan and further issuance of cheque for repayment of the said amount.
Learned counsel for the applicant submits that the decision of the civil court is binding on criminal court and in view of the same, the applicant-accused is entitled for discharge. In view of clause 2 of Article 20 of the Constitution of India, there is immunity guaranteed from double punishment. The decision rendered in the said civil suit by the civil court has attained finality and therefore, the doctrine of merger squarely applied to t
