Virander Kumar Sachdeva vs Vijay Kumar

K.K. Srivastava, J.—This is a petition filed u/s 482 of the Code of Criminal Procedure praying for the stay of the proceedings of the criminal complaint case No. 12 dated 20 3.1995 u/s 138 of the Negotiable Instruments Act for short to be referred as the Act) and pending before the Sub Divisional Judicial Magistrate, Anandpur Sahib during the pendency of civil litigation which is also pending between the same parties and with regard to the same matter under the name and style of Vijay Kumar v. Varinder Kumar.

It is alleged that petitioner Virender Kumar Sachdeva is the owner of M/s Nangal Gas Service and the respondent Shri Vijay Kumar filed the said complaint on the ground that the petitioner had issued a cheque in favour of the complainant-respondent for a sum of Rs. 15 lacs in view of the agreement dated 5.3.1985, on 16.12.1994 and when the said cheque was presented for being encashed with the bankers it bounced due to the paucity of funds. After issuing a notice as required by Section 138 of the Act calling upon the petitioner to pay the amount of the disputed cheque within the time mentioned therein and on failure of the payment of the amount of cheque, the complaint case was filed for the offence punishable u/s 138 of the Act.

It is alleged that the petitioner filed a civil suit being suit No.20 dated 19.1.1995 against the respondent in request of the said Gas Agency and prayed for the relief of the permanent injunction and in the alternative for possession on the ground that the petitioner was the sole proprietor of M/s Nangal Gas Service. Respondent Vijay Kumar Alongwith Pawan Kumar, Ashok Kumar, Naresh Kumar as unnecessarily interfering in the working of the petitioner. The petitioner contended in the civil suit that the Indian Oil Company Ltd. had appointed him as the sole Distributor of LPG on 23.12.1985. The agreement was also entered into between the petitioner and the Indian Oil Company. However, respondent Vijay Kumar along with others started threatening the petitioner and interfering in the functioning of the distribution of LPG Cylinders and made attempts to dispossess the petitioner from the said property. Respondent Vijay Kumar filed his written statement before the Civil Court and took a plea that a partnership deed had been entered into on 5.3.1935 according to which the share of the petitioners of 2 5% whereas the share of Vijay Kumar respondent was of 75% and the profits and losses, were also to be shared in that proportion only. As per clause VIII of the agreement, the petitioner had to surrender the Gas Agency and was to transfer the same in the name of Smt. Punam wife of Vijay Kumar after December 1994 with the approval of the Corporation and if he failed to do so, the petitioner was to pay a sum of Rs. 15 lacs on account of the finances incurred by Six. Vijay Kumar and also for the damages and service rendered by respondent Vijay Kumar. The Civil Court framed issues including the issue as to whether the petitioner was the sole proprietor of the disputed concern M''s Nangal Gas Service and whether respondent Vijay Kumar entered into and executed the partnership deed, referred to above, on 5.3.1985 regarding the said concern.

The trial Court after recording evidence, decreed the suit in favour of the petitioner. Respondent Vijay Kumar filed an appeal against the judgment of the trial Court which as pending. Respondent Vijay Kumar also filed the complaint on the basis of the fact that the cheque in question issued by the petitioner in his favour is a forged document and the petitioner committed an offence punishable u/s 1.18 of the Act.

The primary contention of Mr. Patwalia, learned counsel for the petitioner is that the matter before the Civil Court is substantially the same which is involved in the complaint case filed u/s 138 of the Act as to the circumstances in which the disputed cheque had been issued in favour of the respondent. It was contended that the complaint case aforesaid should, therefore, await the. final outcome of the civil suit.

Notice was issued to the respondent who appeared and filed written statement. It has been contended that merely because the civil suit is pending between the parties, the complaint case could not be ordered to be stayed. Apart from this, it has been contended that the learned trial Court which has decided the suit in favour of the petitioner has categorically held that-

the fact that according to the defendant, the plaintiff issued the cheque dated 16.12.1994 for Rs. 15 lacs (certified copy of the same being Exhibit D4) m favour "of the defendant-Vijay Kumar would go to show that he was left with no interest in M/s Nangal Gas Service Agency, if he had any as per the agreement arrived at between the plaintiff and defendant Vijay Kumar. It is beyond the scope of the enquiry as to whether the cheque was issued by the plaintiff or the same is a forged document because it is for the defendants to redress their remedy in the appropriate proceedings for effecting the recovery of the cheque as already the defendants have brought a complaint u/s 138 of the Act against the plaintiff....

It was contended further that Hon''ble Supreme Court in the case of M.S. Sheriff Vs. The State of Madras and Others, which was followed by this Court in the case of Court on its Court on its own motion Vs. Smt. Kailash Rani, held that if the civil and criminal proceedings are pending between the same parties on same facts, then criminal proceedings have to get precedence over the civil proceedings and criminal proceedings should not be stayed.

After hearing Mr. Patwalia and Mr. Ahluwalia, learned counsel for the parties and going through the record, I find no merit in this petition. The reasons are as under:

As mentioned in the reply of the respondent, the Civil Court has clearly and categorically mentioned in the judgment that it was beyond the scope of the civil suit as to in what circumstances the cheque in question was issued and further whether the same was genuine or forged and it would be for a Court of competent jurisdiction to decide the same which was dealing with the complaint u/s 138 of the Act. It is obvious that this matter regarding the cheque having been issued in favour of the respondent by the petitioner is not directly and substantially involved in the civil suit. The matter regarding the issuance of the cheque in question is before the criminal Court dealing with the case u/s 138 of the Act and that Court has to settle the controversy regarding the issuance of a cheque by the petitioner in favour of the respondent and about its being genuine or otherwise filed and being bounced on presentation for insufficient funds. This matter cannot be gone into and decided in the civil suit which relates to the agreement which is said to be entered between the parties. Consequently, this petition is devoid of merit and is dismissed.