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CASE NO.: Appeal (civil)  1734 of 2008

PETITIONER: P. Swaroopa Rani

RESPONDENT: M. Hari Narayana @ Hari Babu

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.   1734 OF 2008 [Arising out of  SLP (Civil) No. 15670 of 2006] WITH CIVIL APPEAL NO.                                       OF 2008 [Arising out of  SLP (Civil) No. 16215 of 2006]

S.B. SINHA, J :          1.      Leave granted.   2.      Appellant is the owner of a cinema theatre.  An agreement of sale  dated 28.03.2001 was entered into by and between the parties hereto in  respect of the said property for a consideration of Rs. 64 lakhs.  Respondent  made part payment of Rs. 32,97,000/- of the said amount.  A suit for specific  performance of the contract was filed as no deed of sale was executed in  terms of the said agreement dated 28.03.2001.

3.      During hearing of the said suit, a receipt was filed showing payment  of a sum of Rs. 4,03,000/- to the appellant herein.  The said receipt was  marked as Exhibit A.15.  On the said basis, allegedly, possession of the  theatre was obtained by the respondent.  The learned Trial Judge, however,  dismissed the said suit by an order dated 29.04.2006 inter alia opining:

"45.    Therefore, in the circumstances I find that  there is no evidence produced by the plaintiff  which is sufficient to outweigh the opinion and the  evidence of D.W.4.  Further it is to be seen that  though after execution of Ex. A.15 he came to  know about huge debts by defendant under the said  mortgage deeds, taxes dues and other statutory  liabilities and that defendant were not cooperating  and adopted evasive attitude in clearing the debts,  dues and other liabilities and were not allowing  him to discharge the mortgage debt to the Union  Bank of India, he kept quite till filing of the suit,  without even issuing a notice to the defendant.   Even if he was in possession as claimed by him  with effect from the date of Ex.A.15, in view of  the huge debts and liabilities, which to his  knowledge the defendant was not in a position to  discharge and not making any efforts to discharge  the same he would not have kept quite in the  normal circumstances without issuing any notice to  the defendant.  Thus there is no mention about this  Ex.A.15 dated 18.09.2002 in the written form  anywhere till he filed the plaint on 05.12.2002.  

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Therefore, these circumstances also render the oral  evidence of P.W.1 and P.W.2 highly doubtful on  this aspect.  Therefore, in these circumstances I  find that the evidence of D.W.4 and the contents of  Ex.C.4 opinion and Ex.C.5 reasons for opinion are  sufficient to prove that the signature of D.W.1 is  forged in Ex.A.15.  Therefore in the circumstances  it shall be held that the contention of the plaintiff  and the evidence of P.W.1 that on 18.09.2002 he  paid Rs. 4,03,000/- towards part of sale  consideration and D.W.1 delivered possession of  plaint schedule theater to him is not true.   Therefore, in the circumstances it also shall be  held that the plaintiff failed to prove that he came  into possession of the plaint schedule property in  pursuance of the part performance of the contract  covered by Ex.A.4."

       It was furthermore  opined:

       "Therefore, following this decision of the  Honourable High Court of Andhra Pradesh it shall  be held that the plaintiff, since failed to prove that  he paid Rs. 4,03,000/- towards part payment of  sale consideration of D.W.1 and she delivered  possession of plaint schedule to him on 18.09.2002  and passed Ex.A.15 receipt.  It shall be held that  though the time is not the essence of the contract  and the plaintiff is justified in not making further  remaining part of sale consideration by  31.12.2001, since he approached the court with  unclean hands he cannot be granted a decree for  specific performance.  Since it is a specific case  that he came into possession of plaint schedule  property in part performance of Ex. A.4 agreement  of sale, on 18.09.2002 under Ex. A.15 and failed to  prove the same, it is irrelevant and not necessary to  decide how he came into possession of the plaint  schedule property.  Therefore, in the circumstances  he is also not entitled for protection under section  53-A of Transfer of Property Act and hence is not  entitled to seek perpetual injunction."

4.      Appellant, in view of the said observations, lodged a First Information  Report, which was marked as Crime No. 79 of 2006, in the Kadapa Police  Station alleging that the said receipt (Ex. A.15) was a fabricated document.   

5.      Respondent, however, preferred an appeal against the said judgment  and decree dated 29.04.2006.  In the said appeal preferred by the respondent,  an application for interim stay of the operation of the said judgment was  filed.  A Division Bench of the High Court by a judgment and order dated  24.05.2006 directed:

"Going by the principle that an appeal is a  continuation of the suit and the state of affairs  obtaining during the pendency of the suit must be  continued, as far as possible, during the appeal  also, we grant an interim direction to the effect that  the petitioner shall be entitled to remain in  possession of the suit schedule theatre, subject to  the condition that it shall deposit a sum of Rs.  30,000/- (Rupees thirty thousand only) per month,  commencing from June 2006, until further orders.   It shall also be open to the respondent to withdraw  the amount without furnishing any security."

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6.      Respondent filed Miscellaneous Petition in the said appeal, being  ASMP No. 995 of 2006, for modification of the order dated 24.05.2006,  which was allowed by an order dated 17.07.2006.

7.      By another order dated 17.07.2006, the High Court stayed the  proceedings in Crime No. 79 of 2006.

8.      Appellant is, thus, before us.

9.      Mr. V.R. Reddy, learned Senior Counsel appearing on behalf of the  appellant in Civil Appeal arising out of SLP (C) No. 15670 of 2006, would  submit that the High Court committed a serious illegality in staying the  investigation of a criminal case.   

10.     Mr. P.S. Narsima, learned counsel appearing on behalf of the  appellant in Civil Appeal arising out of SLP (C) No. 16215 of 2006, would  submit that keeping in view the observations made by the learned Trial  Judge and furthermore in view of the fact that the respondent had not  approached the court with clean hands, no interim order in his favour should  have been passed.   

11.     Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the  respondent, on the other hand, submitted that the court has power to grant  injunction even in respect of a proceeding which is stricto sensu not the  subject matter of the proceedings before the High Court.

12.     The High Court indisputably is a final court of fact.  It may go into the  correctness or otherwise of the findings arrived at by the learned Trial Judge.   A’ fortiori it can set aside the findings of the court below that the Ex. A.15 is  a forged document or its authenticity could not be proved by the respondent.   

13.     It is, however, well-settled that in a given case, civil proceedings and  criminal proceedings can proceed simultaneously.  Whether civil  proceedings or criminal proceedings shall be stayed depends upon the fact  and circumstances of each case.  [See M.S. Sheriff v. State of Madras AIR  1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370  and Institute of Chartered Accountants of India v. Assn. of Chartered  Certified Accountants (2005) 12 SCC 226]

14.     It is furthermore trite that Section 195(1)(b)(ii) of the Code of  Criminal Procedure would not be attracted where a forged document has  been filed.  It was so held by a Constitution Bench of this Court in Iqbal  Singh Marwah (supra) stating:

"25. An enlarged interpretation to Section  195(1)( b )( ii ), whereby the bar created by the  said provision would also operate where after  commission of an act of forgery the document is  subsequently produced in court, is capable of  great misuse. As pointed out in Sachida Nand  Singh after preparing a forged document or  committing an act of forgery, a person may  manage to get a proceeding instituted in any  civil, criminal or revenue court, either by himself  or through someone set up by him and simply file  the document in the said proceeding. He would  thus be protected from prosecution, either at the  instance of a private party or the police until the  court, where the document has been filed, itself  chooses to file a complaint. The litigation may be  a prolonged one due to which the actual trial of  such a person may be delayed indefinitely. Such  an interpretation would be highly detrimental to  the interest of the society at large.  

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26. Judicial notice can be taken of the fact that  the courts are normally reluctant to direct filing  of a criminal complaint and such a course is  rarely adopted. It will not be fair and proper to  give an interpretation which leads to a situation  where a person alleged to have committed an  offence of the type enumerated in clause ( b )( ii )  is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the  same does not come to its logical end. Judging  from such an angle will be in consonance with  the principle that an unworkable or impracticable  result should be avoided. In Statutory  Interpretation by Francis Bennion (3rd Edn.),  para 313, the principle has been stated in the  following manner:  "The court seeks to avoid a construction of an  enactment that produces an unworkable or  impracticable result, since this is unlikely to have  been intended by Parliament. Sometimes,  however, there are overriding reasons for  applying such a construction, for example, where  it appears that Parliament really intended it or the  literal meaning is too strong.""  

       In regard to the possible conflict of findings between civil and  criminal court, however, it was opined:

"32. Coming to the last contention that an effort  should be made to avoid conflict of findings  between the civil and criminal courts, it is  necessary to point out that the standard of proof  required in the two proceedings are entirely  different. Civil cases are decided on the basis of  preponderance of evidence while in a criminal  case the entire burden lies on the prosecution and  proof beyond reasonable doubt has to be given.  There is neither any statutory provision nor any  legal principle that the findings recorded in one  proceeding may be treated as final or binding in  the other, as both the cases have to be decided on  the basis of the evidence adduced therein\005"  

       It was concluded:   "33. In view of the discussion made above, we  are of the opinion that Sachida Nand Singh has  been correctly decided and the view taken therein  is the correct view. Section 195(1)( b )( ii ) CrPC  would be attracted only when the offences  enumerated in the said provision have been  committed with respect to a document after it has  been produced or given in evidence in a  proceeding in any court i.e. during the time when  the document was in custodia legis."  

15.     Filing of an independent criminal proceeding, although initiated in  terms of some observations made by the civil court, is not barred under any  statute.

16.     The High Court, therefore, in our opinion, was not correct in staying  the investigation in the said matter.

       Reliance has been placed by Mr. Gupta on Mahar Jahan and Others v.  State of Delhi and Others [(2004) 13 SCC 421] wherein this Court was

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dealing with a proceeding under Section 145 of the Code of Criminal  Procedure.  This Court noticed that a civil dispute was given the colour of a  criminal case.  As therein a proceeding under Section 145 of the Code of  Criminal Procedure was pending, when a civil suit was also pending before a  competent court of law,  it was opined:

"4. It is not disputed by the learned counsel for  the parties that this very property which is the  subject-matter of these criminal proceedings is  also the subject-matter of the civil suit pending in  the civil court. The question as to possession over  the property or entitlement to possession would  be determined by the civil court. The criminal  proceedings have remained pending for about a  decade. We do not find any propriety behind  allowing these proceedings to continue in view of  the parties having already approached the civil  court. Whichever way proceedings under Section  145 CrPC may terminate, the order of the  criminal court would always be subject to  decision by the civil court. Inasmuch as the  parties are already before the civil court, we  deem it proper to let the civil suit be decided and  therein appropriate interim order be passed  taking care of the grievances of the parties by  making such arrangement as may remain in  operation during the hearing of the civil suit."  

       It was furthermore observed:

"7. We have simply noted the contentions raised  by the parties. The civil court, in our opinion,  would be the most appropriate forum to take care  of such grievances and pass such interim order as  would reasonably protect the interests of both the  parties. The civil court may issue an ad interim  injunction, may appoint a Commissioner or  Receiver or may make any other interim  arrangement as to possession or user of the  property which is the subject-matter of  proceedings in the civil court exercising the  power conferred on it by Sections 94 and 151 of  the Code of Civil Procedure."            It was, therefore, a case where this Court quashed a proceeding under  Section 145 of the Code of Criminal Procedure as the matter pending before  it arose out of a civil proceedings.  Such observations were made keeping in  view the fact that possession of the parties over the property in suit was in  question.

17.     The impugned order, therefore, cannot be sustained which is set aside  accordingly.  Civil Appeal arising out of SLP (C) No. 15670 of 2006 is  allowed.

18.     We, however, are of the opinion that the High Court should be  requested to hear the appeal as early as possible and preferably within a  period of three months from the date of receipt of a copy of this order.  This,  however, may not be taken to mean that we have entered into the merit of  the matter.   

19.     It goes without saying that the respondent shall be at liberty to take  recourse to such a remedy which is available to him in law.  We have  interfered with the impugned order only because in law simultaneous  proceedings of a civil and a criminal case is permissible.

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20.     In view of the aforementioned observations, we are of the opinion that  the interim order dated 24.05.2006 as modified by an order dated 17.07.2006  need not be interfered with particularly in view of the fact that according to  the respondent it had made a payment of Rs. 35,47,000/- besides the  disputed payment of Rs. 4,03,000/- and made deposits of Rs. 67,54,088/-.

21.     For the reasons aforementioned, Civil Appeal arising out of SLP (C)  No. 16215 of 2006 is dismissed.