CIVIL PROCEEDINGS AND CRIMINAL PROCEEDINGS CAN PROCEED SIMULTANEOUSLY

Citation

CDJ 2008 SC 1354

Head note

Recovery of money - Suit for - Negotiable Instruments Act, 1881 - Section 138, Section 142 - Criminal Procedure Code - Section 357 - Whether in a suit for recovery of money on a cheque issued by the defendant but dishonoured, the amount received by the plaintiff-creditor in a criminal proceeding should be adjusted - Whereas the judgment of conviction and sentence was passed on 15.12.2005, the suit was decreed by the civil court on 23.01.2006. Deposit of a sum of Rs. 2,00,000/- by the appellants in favour of the respondent herein, was directed by the Criminal Court. Such an order should have been taken into consideration by the Trial Court. An appeal from a decree, furthermore, is a continuation of suit. The limitation of power on a civil court should also be borne in mind by the appellate court - In terms of sub-section (1) of Section 357 of the Code, a criminal court is empowered to direct that out of the amount recovered from an accused by way of fine, compensation of a specified amount may be directed to be paid for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by a person in a Civil Court. It is, therefore, evident that the amount of compensation could have been directed to be paid by the criminal court as the same was recoverable by the respondent as against the appellants in a civil court also. Such an order can also be passed by the Appellate Court or by the High Court or by the Court of Sessions when exercising its power of revision - Evidently, a duty has been cast upon the civil courts to take into account the sum paid or recovered as compensation in terms of Section 357 of the Code. It is futile to urge that on the date on which the civil court passed the decree the appellants were not convicted. The appeal is a continuation of the suit and in that view of the matter as the appellants had in total deposited a sum of Rs.4,00,000/-, i.e., Rs. 2,10,000/- in the criminal proceeding and Rs.1,90,000/- in the civil proceedings, out of which a sum of Rs. 3,09,000/- has been withdrawn by the respondent, the High Court was obligated to take the same into consideration. In other words, having regard to the provisions of Sub-section (5) of Section 357 of the Code, a duty was cast upon the High Court to take into account the fact that a sum of Rs. 2,00,000/- had already been paid by the appellants to the respondent. Concededly, both the proceedings were maintainable. Law recognizes the same. The Parliament must have the situation of this nature in mind while enacting Clause (b) of Sub-section (1) of Section 357 of the Code and Sub-section (5) thereof - Therefore, are of the opinion that the impugned judgment should be modified and is directed to be modified accordingly. The matter is remitted to the learned Trial Judge. The learned Trial Judge is directed to take into consideration the amount of compensation deposited by the appellants in the criminal case and for the said purpose, the learned Trial Judge should draw up a fresh decree while correcting the decree in terms of the order of this Court. The learned Trial Judge shall, while preparing a fresh decree, take into consideration the various dates on which the diverse amounts had been deposited by the appellants and calculate the interest payable thereupon.

Para 11 to 13 & 18

Cases Referred:
1. Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Another (2007) 6 SCC 528
2. Manish Jalan v. State of Karnataka JT 2008 (7) SC 643
3. New India Assurance Co. v. Nusli Neville Wadia and Anr. 2007 (14) SCALE 556

Comparative Citations:
2008 (8) SCC 505, 2008 (3) KLT 590, 2009 (1) SCJ 612, 2008 AIR(SC) 3202, 2008 (11) SCR 738, 2008 (11) Scale 73, 2009 (3) LW 751, 2008 (6) SLT 663