Allowed

M/S. Creative Outerwear Limited v. Shailesh H. Bajaj and Anr.

Bombay HC4 Jul 2012APPLN/253/2012

Case brief

AI extract

What is this about?

Single Judge granted leave to appeal against acquittal in a cheque bounce case. The court examined the relevance of civil court findings regarding the nature of the cheque, citing Supreme Court precedents on the evidentiary value of civil judgments in criminal trials.

What did the court decide?

Leave to file appeal granted; application admitted; bond execution ordered within four weeks.

M/S. Creative Outerwear Limited Vs Shailesh H. Bajaj and Anr. — Cheque Dishonour | Bombay HC (2012)

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ba 253-2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 253 OF 2012

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M/s.Creative Outwear Ltd.

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...Applicant

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vs.

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Shri Shailesh H. Bajaj & Anr.

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...Respondents

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Shri I.a. Bagaria for the Applicant. Shri Y.M. Nakhawa, APP for the State.

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Shri Shailesh N. Bajaj, Respondent No.1 in person.

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CORAM : R.C. CHAVAN, J.

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JULY 4, 2012

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P.C. :-

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1 This is an application for leave to file appeal against judgment of

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acquittal of the respondent for offence punishable under Section 138 of the Negotiable Instruments Act rendered by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai.

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2 The learned Magistrate held that the cheque for Rs.1 crore which

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was dishonoured was given as additional collateral security and not for discharge of any debt or legally enforcible liability. He also held that the amount due was in fact only Rs.90 lakhs and odd according to account books of the applicant and therefore, the applicant was not entitled to have the cheque

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ba 253-2012

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encashed. These observations came against the background of judgment of this Court in Summary Suit No.5217/99 wherein in respect of these very cheques, the Court held that the cheques were given pursuant to letter dated 10th June, 1996 and not as security. This finding was maintained in Intra-court appeal by Division Bench of this Court. SLP came to be dismissed.

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3 Respondent in person submitted that the learned trial Magistrate was justified in holding that the judgment of civil court is not binding on the criminal court.

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4 There can be no doubt about the proposition that no judgment of

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any court is binding on any other court unless it satisfies conditions in Sections 42 and 43 of the Evidence Act. In K.G. Premshanker vs. Inspector of Police and another, reported in 2003(1) Maharashtra Law journal 1 , the Supreme Court had observed that a judgment of a civil court to be conclusive only as provided in Section 41 which refers to judgment in rem. The court has given an illustration in para 31 of the judgment which is interesting and may be useful in deciding the appeal eventually. Similar view was taken by the Supreme Court in

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Syed Askari Hadi Ali Augustine Imam and another vs. State (Delhi

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ba 253-2012

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Administration) and Anr. reported in (2009)5 SCC 528, 2) Vishnu Dutt Sharma vs. Daya Sapra (Smt.) reported in (2009) 13 SCC 729 and, 3) Kishan Singh (Dead) Through Lrs. vs. Gurpal Singh and others, reported in (2010) 8

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SCC 775 . The question before the learned Magistrate was in respect of negotiable instruments. The dishonour to cheque has been made an offence by enacting Section 138 of the Negotiable Instruments Act but principally the dishonour to cheuqe is a wrong which is remediable in the civil court. The standard of proof in the criminal case viz. proof beyond reasonable doubt could obviously apply by deciding the question of criminality in dishonour of cheque. However, findings of civil court do not become entirely irrelevant and therefore, the judgment rendered by the Magistrate would require a further examination.

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5 Hence, leave granted.

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6 Admit. Respondent waives service. Call for R and P.

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7 Since the respondent is present, he shall execute fresh bond in the

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same amount on which he was on bail throughout the trial within a period of four weeks in the trial court.

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(R.C. CHAVAN, J.)

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M/S. Creative Outerwear Limited v. Shailesh H. Bajaj and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Creative Outerwear Limited v. Shailesh H. Bajaj and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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