Sanjiv Kumar vs Surendera Steel Rolling Mills

Harmohinder Kaur Sandhu J.—This judgment will dispose of Criminal Miscellaneous Nos. 10749-M of 1992, 10751-M of 1992, 10753-M of 1992, 10755-M of 1992 and 10757-M of 1992 all titled Sanjiv Kumar v. Surendera Steel Rolling Mills, Mandi Gobindgarh.

Surendera Steel Rolling Mills, carried on its business of steel rolling at Mandi Gobindgarh. This firm filed five different complaints against Sanjiv Kumar, the present petitioner, for an offence u/s 138 of the Negotiable Instruments Act, alleging that the petitioner purchased rolling material from the firm on different dates and issued five cheques for a total amount of Rs. 3,40,000. The cheques were presented to the bank by the firm through its banker but the same were dishonoured by the Union Bank of India, Mandi Gobindgarh, with the remarks "refer to drawer" meaning thereby that there was no arrangement to meet the amount of the said cheques in the account of the petitioner. The petitioner was fully aware at the time of issuing the cheques that the same would not be honoured when presented to the concerned bank. On receipt of notice from the bank on February 14, 1991, the petitioner was asked to make payment of the amount within 15 days through a notice but no payment was made.

The petitioner has filed the present petitions u/s 482 of the Code of Criminal Procedure for quashing the five complaints filed by the respondent firm pending in the court of the learned Sub-Divisional Judicial Magistrate, Amloh, and subsequent proceedings arising therefrom. It was alleged in the petition that the petitioner had entered into a contract with the respondent for the purchase of 500 mt. of rolling material at the rate of Rs. 7,800 per mt. but the respondent supplied only part of the material and as the price of the material had increased the respondent refused to supply the rest of the material unless post dated cheques were issued in advance. The following cheques were then issued :

Cheque No.

Dated

Rs.

0718450

10-10-90

1,00,000

0718342

10-11-90

60,000

0718338

10-12-90

60,000

0718339

10-01-91

60,000

0718341

10-02-91

60,000

Material against these cheques was to be supplied on the dates mentioned in the cheques. On failure of the respondent to supply the material he filed a Civil Suit No. 32 on 15th January, 1991, in the Court of Sub-Judge, First Class, Amloh. On 29th January, 1991, the respondent also filed a suit for the recovery of Rs. 4,51,635 and also filed criminal complaints in which the petitioner was summoned. Proceedings in the suit filed by the respondent were stayed when an application u/s 10 of the CPC was moved. The subject-matter of the suit filed by the respondent and the allegations made in the complaint were of the same nature, so proceedings in the complaint amounted to an abuse of the process of the court.

In the return filed by the respondent, a preliminary objection was raised that the petitions for quashing the complaints were liable to be dismissed on the ground of delay as the respondent had produced all its evidence and the case was pending for evidence in defence for which many opportunities had been granted to the petitioner. The petitions were filed mala fide to delay the decision of the complaints. Cheques were given by the petitioner against the price of goods supplied and there was never any contract to supply any particular quantity of goods. The cheques were dishonoured by the bank. Statutory notice of demand of payment was issued to the petitioner and he had not made payment in compliance therewith. The petitioner filed the suit only after he had received the notice issued to him.

I have heard counsel for the parties.

In the present case, there is no dispute regarding the fact that the cheques were issued and the same were dishonoured on presentation. Requisite notice was issued to the petitioner but no payment was made. Subsequently, the petitioner filed a civil suit. The respondent too filed a suit for the recovery of the amount, but proceedings in that suit were stayed at the instance of the petitioner. It was not contended on behalf of the petitioner that the allegations made in the complaint did not disclose the ingredients of the offence u/s 138 of the Negotiable Instruments Act. The only contention of learned counsel for the petitioner was that as a civil suit was pending between the parties regarding the amount covered by the cheques so the proceedings in the complaint amounted to an abuse of the process of the court. This contention of learned counsel, however, cannot be accepted as civil and criminal proceedings are coextensive and not exclusive. In the case of A. Padmanabha Panicker Vs. K.J. Tomy and Another, it was observed ;

"I do not think enforcement of the liability through a civil court will disentitle the aggrieved person from prosecuting the offender for the offence punishable u/s 138 of the Act. Both remedies may be simultaneously possible. A civil suit cannot debar criminal prosecution. At best, realisation of the amount may be taken as a circumstance by the criminal court, in considering the sentencing discretion. Simply because of the successful termination of civil litigation criminal prosecution cannot become an abuse of the process of the court justifying interference by this court in exercise of the inherent powers."

In the present case admittedly the complainant had led all its evidence and many adjournments were granted to the petitioner to produce his defence. The cases are almost at a final stage and are likely to be concluded within a short time ; so powers of this court u/s 482 of the Criminal Procedure Code, cannot be justly invoked at this stage.

Learned counsel for the petitioner further urged that even if the complaints are not to be quashed, proceedings in the complaint cases may be stayed till the decision of the civil suit to save the petitioner from embarrassment. In support of his contention he placed reliance in the case of M.S. Sheriff Vs. The State of Madras and Others, . But, I find that in this case too it was observed that as between the civil and criminal proceedings the criminal matter should be given precedence though no hard and fast rules could be laid down and, ultimately, the proceedings in the civil suit were stayed till the criminal proceedings finished. As the complaint cases are at the conclusion stage it will not be appropriate to stay proceedings in the same when disposal of the civil suit filed by the petitioner is sure to take time.

As a result, I find no merit in the petitions referred to above and dismiss the same.