Hon'ble Suneet Kumar, J.

The opposite party no. 2 filed an application under Section 156(3) Cr.P.C. which was converted into a complaint case by the learned Magistrate. It was alleged that the opposite party no. 2 the complainant is a Doctor by profession, on attaining the age of superannuation retired as Head of a Department of a Medical College at Agra, thereafter, commenced private practice at Agra.

It is further alleged that the opposite party no. 2 is the owner and in possession of House No. 177/6/Q, Sharda Nagar at Kanpur Nagar. The complainant received summons in a suit instituted by the applicant for recovery of Rs. 11,51,000/- and for permanent injunction restraining the complainant from disposing or selling the property in dispute until the sum is not returned. It was further alleged that the opposite party no. 2 visited the civil court and upon perusal of the record of the suit it transpired that the applicant in connivance with the other co-accused committed forgery by preparing a receipt of the sum purportedly to have been advanced to the complainant for sale of the property at Kanpur. It was alleged that the accused are neither known nor have ever met the opposite party no. 2, therefore, on the basis of a forged and manufactured document an attempt was made to grab the property at Kanpur, taking advantage of the fact that the applicant is residing at Agra. Learned Magistrate upon the statement of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C., summoned the applicant by order dated 08 March 2016, which is impugned in the petition.

It is sought to be urged by the learned counsel for the applicant that the case primarily is of a civil nature and the criminal case has been instituted to coerce the applicant to withdraw the suit, further, the complainant/opposite party no. 2 has already been put in appearance in the suit by filing written statement reiterating the facts that has been stated in the complaint. The learned Magistrate without application of mind has taken cognizance.

Learned counsel for the applicant in support of his submission has placed reliance on the judgment rendered in M/s. Pepsi Food Limited and another Versus Special Judicial Magistrate, 1998 (5) SCC 749 to urge that the process of summoning any person as accused is a very serious matter, which initiates criminal proceedings against the accused, therefore, said orders cannot be set into motion in a mechanical manner without applying judicial mind. It is sought to be urged that Rs. 93,000 was paid towards court fees, the findings that would be returned by the civil court in respect of the alleged forged document would be binding upon the criminal court.

The learned A.G.A. would submit that mere institution of a civil suit would not bar criminal proceedings.

The question for determination is as to whether the dispute, inter se, parties is primarily of civil nature, so as to bar criminal proceedings.

There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit `preponderance of probability' would serve the purpose for obtaining a decree. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding.

In M.S. Sheriff & Anr. vs. State of Madras & Ors. [AIR 1954 SC 397], the Constitution Bench was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be