w w w . L a w y e r S e r v i c e s . i n



Mafatlal Finance Co. Ltd. & others v/s Pranathi Finance, Leasing & Investments Pvt. Ltd. & others

    Chamber Summons No. 842 of 2000 in Summons for Judgement No. 1135 of 1998 in Summary Suit No. 1191 of 1998 and Chamber Summons No. 841 of 2000

    Decided On, 23 November 2000

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE R.J. KOCHAR

    For the Petitioner: Pratik Sakseria with Devyash Chaurasia i/b, Manilal Kher Ambalal & Co., Bookwala i/b. Manilal Kher Ambalal & Co., Advocate. For the Respondent: Divekar i/b Divekar & Co., Shekhar Naphade with A.A. Joshi, Advocates.



Judgment Text

R.J. KOCHAR, J.


Both the summons for judgments and the chamber summons are taken up for hearing and are being disposed of by this common order. Shri Bookwalla and Shri Naphade advanced main submissions for their respective parties in all the matters.


2. I have to perform an act of balancing two prejudices, one the plaintiffs in the above suits and the defendants who are accused before the criminal proceedings pending against them under section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). The plaintiffs have resorted to both the remedies, civil as well as criminal against the defendants, civil proceedings for recovery of the debt due from the defendants and criminal for penalising them for dishonouring of the cheque issued by them in favour of the plaintiffs, purporting to be repayment of the loan advanced to them by the plaintiffs.


3. The sketch outline of facts in both the cases is as follows:---


The plaintiffs have filed the above suits against the defendants for decrees against them for the respective suit amount with further interest as set out in the respective particulars of claim annexed to the plaints. The plaintiffs had advanced loans to the first defendants on latter executing deeds guaranteeing the repayment of the debts. It appears from the averments in the plaints that the defendants gave cheques towards the principal amount to the plaintiffs which were dishonoured giving rise to the above civil and criminal proceedings.


4. On receipt of writ of summons the defendants have entered their appearance in the above suits, whereupon the plaintiffs in each of the suits have taken out the summons for judgment for a decree against the defendants on the ground that the suit claim is an ascertained and liquidated amount arising from the written contracts and that the defendants have no defence of any nature. The defendants in the first suit have, instead of filing a reply to the summons for judgment, have taken out the above chamber summons praying for stay of the proceedings in the suit, pending the hearing and final disposal of the criminal proceedings before the 38th Metropolitan Magistrate, Ballard Estate, Mumbai. In support of the chamber summonses affidavits in reply are filed on behalf of the defendants. In the affidavits in reply are set out the bare facts, neither admitting nor denying the averments made by the plaintiffs in the affidavit in support of the summons for judgment. The defendants have averred in the affidavits in support of the chamber summons that if they are compelled to disclose their defence on affidavit in the present suit, then the defendants' rights in the criminal complaint would be seriously prejudiced. The defendants have also taken shelter under Article 20(3) of the Constitution of India that the defendants cannot be compelled to give evidence against themselves. The defendants apprehend that if the plaintiffs become aware of the defence of the defendants, they might try to manipulate and change their evidence in the complaint which would prejudice the rights of the defendants. The defendants in the second suit have adopted the same line of defence without filing a formal chamber summons.


5. I have heard both the learned Counsel for the plaintiffs and the defendants at length. Both the learned Counsel have cited a number of judgments in support of their respective submissions. Shri Bookwalla, the learned Counsel for the plaintiffs has opposed the prayers in the chamber summons very vehemently. According to him, though both the civil and criminal proceedings have arisen from one and the same set of transactions and failure on the part of the defendants to honour the cheque to repay the loans advanced by the plaintiffs, both the remedies have different ends to achieve and that they cannot be intermingled with each other. Under the civil proceedings, the plaintiffs want to get back their money while under the criminal proceedings the penal consequences as provided under section 138 of the Act for dishonour of the cheque issued by the defendants would follow. Shri Bookwalla further pointed out that the defendants must disclose their defence in the above summons for judgments to get leave to defend the suit, conditionally or unconditionally. He has further solemnly made a statement to this Court that any defence disclosed by the defendants in these civil proceedings would not be used in the criminal proceedings.


6. Shri Bookwalla also submitted that the cause of action in the present suits is distinct from that of the criminal complaint under section 138 of the Act. According to the learned Counsel for the plaintiffs, there is a presumption of offences under sections 138, 139 and 140 of the Act. Since the defendants receive a notice under section 139, they are bound to either pay or give reply to the said notice. Shri Bookwalla submitted that what Article 20(3) contemplates is compulsion of a person to give evidence against himself or put a witness against himself. In the summary proceedings, there is no such compulsion to file a reply as it is left to the decision of the defendant either to file a reply or not to file a reply. The learned Counsel relied upon a judgment of the Special Court constituted for Trial of Offences Relating to Transactions in Securities at Bombay, commonly known as SCAM matters. The learned Judge S.M. Variava, (as he then was) concluded in paras 70 and 71 after considering various judgments cited before him as under:---


"From the above authorities, it must be seen that what Article 20(3) of the Constitution of India protects against is self-incrimination by an accused person. As stated by the Supreme Court in the case of State of Bombay v. Kathi Kalu (supra), self-incrimination must mean conveying information based upon personal knowledge of that person giving the information. Thus it would be clear that if the C.B.I. and/or the Custodian are directed to give inspection of documents, even though they are documents of other respondents, Article 20(3) would never be attracted. Similarly so far as the Banks are concerned, the inspection which has been sought are of the records of the Banks themselves. In any view, merely because the records include the accounts of other respondents that would not attract Article 20(3). The only question would be whether the respondents 7 to 14 could be directed and called upon the disclose information and documents. As is clear from Supreme Court judgments, the mere mechanical process of producing documents in Court which may throw light on any point in controversy but which do not contain any statement of the accused based on his personal knowledge could not attract Article 20(3). So far as respondents 7 to 14 are concerned, the only prayer in the petition, which might attract Art. 20(3), would be prayer (B). Prayer (B)(i) is for full particulars of all bank accounts maintained by them or on their behalf or by or on behalf of any companies or trusts associated with them and all documents relating to those accounts and in particular details of all receipts/credits received by them in such accounts. In my view, on the principle laid down by the Supreme Court, an order in terms of prayer (B)(i) would not attract Article 20(3) at all. So far as prayers (B)(ii), (B)(iii) and (B)(iv) are concerned, these necessarily would include imparting some knowledge. However, without particulars of the sort asked for in prayers (B)(ii), (iii) and (iv), in my view, a tracing action would be ineffective. A tracing action is civil in nature. As seen from the various judgments of the Supreme Court, criminal proceedings and the privilege given under Article 20(3) cannot be converted into an immunity in civil proceedings. In such proceedings parties, including accused persons, can be called upon to disclose. The disclosure can be on the condition that the documents or information will not be used in any criminal proceedings.

Para 71:--- Further in civil proceedings the parties, including accused, must decide on their own, whether they want to disclose information or they choose not to disclose information. If they still choose not to disclose information, they will do so at their own peril. It is also clarified that, as held by the Supreme Court, pendency of criminal proceeding or likelihood of criminal proceedings does not preclude a person voluntarily giving evidence and cross-examining witnesses. It is therefore, clear that if the parties choose not to file affidavits (including affidavits of documents), written statements etc. or examine or cross-examine witnesses in civil proceedings, then the natural consequences, including consequences of non-denial, will necessarily follow."

The concession (sic contention) of the learned Counsel appears to be based on the observations of the learned Single Judge that the information will not be used in any criminal proceedings. He has held that the privilege given under Article 20(3) cannot be converted into immunity in civil proceedings. I may mention here itself that Shri Naphade, the learned Counsel for the defendants, who led the other Advocates for the defendants has submitted that the aforesaid judgment of the Special Court ought not to have been cited before this Court as the High Court. I am not entering into that controversy. In any case, the learned Judge of the High Court as he then was has considered the very same point and has delivered a detailed judgment discussing various rulings of the Supreme Court and other High Courts, which definitely has persuasive value and according to me, light or wisdom can always be welcomed from any corner. In addition to the above judgment of the Special Court Shri Bookwalla has relied upon the following judgments.

(I) A.I.R. 1956 S.C. 108 (Smt. Vidya Verma v. Dr. Shiv Narain Verma)1:-

This was a case of a petition filed by a private individual under Article 32 complaining of violation of the right to personal liberty under Article 21 of the Constitution of India. It was observed that such a grievance did not fall within the purview of Article 21 and that such a private individual must seek his remedy under the ordinary law and not under Article 32.

(II) A.I.R. 1952(39) S.C. 59 (P.D. Shamdasani v. The Central Bank of India Ltd.)2.

In this case it was held by the Supreme Court that Article 19(1)(i) and 31(1) do not provide protection against private actions.

(III) A.I.R. 1988 S.C. 1381 (Smt. Sudha Devi v. M.P. Narayanan and others)3.

The learned Counsel for the plaintiffs relied upon this judgment to say that in the summons for judgment, the defendant is required to file an affidavit in reply and such affidavit is not evidence and therefore, according to the learned Counsel Article 20(3) will not apply.

(IV) 1999(4) Bom.C.R. (O.O.C.J.)251 : 1999 Bank.J. (Bom.)891 : 1999(3) Mh.L.J. 81 (Vijaykumar Agarwal v. Govindbhai Dayal Mange and another)4.

The learned Single Judge of this Court, S.S. Nijjar, J., has observed that the law permits the plaintiffs to take out both the civil and criminal proceedings and both proceedings can be continued simultaneously and both remedies are independent of each other. It was also held by the learned Judge that passing of a decree in civil suit will not effect the outcome of the criminal trial and similarly the conviction and grant of compensation will not prevent the civil Court from passing decree in favour of the plaintiffs.

(V) 1994(2) Bom.C.R. 680 : 1994 Bank.J. 408 : 1993 Mh.L.J. 1282 (Satiskumar Premchand Jain v. Krishnagopal Mohanlal Sarda)5.

The learned Single Judge (P.S. Patankar, J.) has held in para 17 that filing of civil suit and criminal proceedings are the alternate remedies available to the non-applicant and that they create different types of rights in the non applicant complaining and that he can legally proceed to Court.

(VI) A.I.R. 1960 Bom. 443, (State v. Devsi Dosa)6.

The Division Bench of this Court Mudholkar and Patel, JJ., has observed in para 9 as under :-


"To say the least, therefore, in order that the protection of this article should be available to a person, he must be accused of an offence, which would mean that an information is laid against him before an officer or a Court entitled to take cognisance of the offence and proceed upon the information to investigate into it. We are in agreement with the observations of the learned Judges in the case of (Suryanarayan v. Vijay Commercial Bank)7, A.I.R. 1958 Andhra Pradesh 756, that merely because the evidence might disclose some crime and it might form the subject matter of future prosecution, would not enable the person, who is asked to furnish evidence, to claim protection of Article 20, sub-clause (3) is any proceedings other than where he is accused of any offence. To enlarge the scope of the Article so as to make it applicable to proceedings whether civil or administrative would encourage dishonesty and would afford comfortable nest to criminals. The proceedings in the present case are administrative in nature being under the Money Lender's Act and the respondent has not been accused at any stage of any offence so far. The protection of Article 20(3) would therefore not be available to him."


(VII) A.I.R. 1990 Delhi 241 (M/s. Star Paper Mills Ltd. v. M/s. Behari Lal Madanlal Jaipuria Ltd. & others)8.


The learned Judge of the Delhi High Court, Y.K. Sabharwal, J., as he then was has held that it was not necessary to always stay the proceedings in civil action. He has analysed the law in the context of Article 20(3) in para 12 as under :-


"The learned Counsel for the defendants has also relied upon Article 20(3) of Constitution of India and contended that directing the defendants to file written statement would amount to compelling them to be a witness against themselves. The said Article, in my view, has no applicability. There is no compulsory disclosure in this case. The defendants are not being asked to disclose their defence of criminal case and, therefore, the question of violation of right guaranteed by Article 20(3) of the Constitution of India does not arise. In somewhat similar circumstances the application seeking stay of civil suit was dismissed by Mahesh Chandra, J., in the case of (Punjab & Sind Bank v. Prithi Automobiles)9, L.A. 5340/86 in S. No. 861/86 decided on 20th February, 1987.

(VIII) (Nemichand Gangwal & another v. Harish Kumar Jhanwar)10, 2000(3) All.M.R. (Journal) 34.

The learned Single Judge of M.P. High Court has concluded after discussing various other judgements cited before him that a suit for recovery of amount covered under the dishonoured cheques should not be stayed under section 10 of the Code of Civil Procedure solely on the ground that criminal proceedings under section 138 of the Negotiable Instruments Act has been instituted. The learned Judge has quoted the following observations of the Supreme Court in the case of (State of Rajasthan v. M/s. Kalyan Sundaram Cement Industries Ltd.)11, 1996(2) M.P.W.N. Short note 61 (P. No. 92) :-


"It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The Criminal Court would deal with offence punishable under the Act. On the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such order. The High Court proceeded on wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is note correct. But since the defence has already been filed nothing survives in this matter."

(IX) (Capt. Dushyant Somal v. Smt. Sushma Somal and others)12, A.I.R. 1981 S.C. 1026 :-


The Supreme Court has in the context of Article 20(3) of the Constitution of India laid down in para 5 as under :-


"It was submitted that the appellant petitioner did not give evidence, he did not examine any witness on his behalf and he did not cross-examine his wife and mother-in-law because, he would be disclosing his defence in the criminal case, if he so did. He could not be compelled to disclose his defence in the criminal case in that manner as that would offend against the fundamental right guaranteed by Article 20(3) of the Constitution. It was suggested that the entire question whether the appellant-petitioner had unlawfully removed the child from the custody of the mother could be exhaustively enquired into in the criminal case where he was facing the charge of kidnapping. It was argued that on that ground alone the writ petition should have been dismissed. The submission is entirely misconceived. In answer to the Rule Nisi, all that he was required to do was to produce the child in Court, if the child was in his custody. If after producing the child, he wanted to retain the custody of the child, he would have to satisfy the Court that the child was lawfully in his custody. There was no question at all of compelling the appellant-petitioner to be a witness against himself. He was free to examine himself as a witness or not. If he examined himself he could still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He was also free to examine or not other witnesses on his behalf and to cross-examine or not, witnessed examined by the opposite party. Protection against testimonial compulsion did not convert the position of a person accused of an offence into a position of privilege, with immunity from any other action contemplated by law. A criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice System. All that Article 20(3) guaranteed was that a person accused of an offence shall not be compelled to be a witness against himself, nothing less and, certainly, nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceedings (sic) (proceeded against) to refuse to examine himself or anyone else as a witness on his side and to cross-examine the witnesses for the opposite party on the ground of testimonial compusion and then to contend that no relief should be given to the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Article 20(3) comes into the picture at all."


(X) A.I.R. 1958 A.P. 756 Mallela Suryanarayana & others v. Vijaya Commercial Bank Ltd. .


The learned Judges of the Division Bench in the context of Article 20(3) have observed as under :-


"The immunity granted by Article 20(3) does not extend to civil proceedings. The fact that the answers given by a person might tend to subject him to a criminal prosecution at a future date will not attract the protection envisaged by Article 20(3). In other words, the fact that the answers might involve a disclosure of crime or that they might form the basis of prosecution in future, would not make any different. The intendment of this Article was to afford some protection to a person involved in a crime, having regard to the predicament in which he would be placed and that is revealed by the juxtaposition of that clause. The legislative intent was only to give some protection to the person who is accused of a crime. To interpret it as applying to all proceedings, civil or criminal, which might at a subsequent period expose the person concerned to prosecution on the basis of answers given by him, is to enlarge the scope of this Article and to defeat justice. To stretch this prohibition to civil cases would be to put a premium on dishonesty. This was not the purpose underlying Article 20 and the intention of the Constitution makers. (Maqbool Hussain v. State of Bombay)13, A.I.R. 1953 S.C. 325 and (M.P. Sharma v. Satish Chandra, District Magistrate, Delhi)14, A.I.R. 1954 S.C. 300.


(XI) 1989 Cri.L.J. 2358 (Apeejay Pvt. Ltd. v. Raghavachari Narasingham and others)15.


The learned Single Judge of Calcutta High Court has held that the decision in a civil suit will have a binding effect enter se between the parties even before the Criminal Court but not conversely.

(XII) In the case of (M/s. Krishko International v. M/s. Adwait Steel & Metals (P) Ltd.)16, in C.A. 191/1992 in C.P. 79/1991 decided on 16th September, 1992 decided by Delhi High Court (Y.K. Sabharwal, J., as he then was) after referring to the decision in the case of (M.S. Sheriff and another v. State of Madras and others)17, reported in A.I.R. 1954 S.C. 397, the learned Judge has held that the Supreme Court did not lay down any hard and fast rule in respect of stay of civil suits during pendency of the criminal cases between the said parties. The learned Judge in para 6 has observed as under :-


"The question to be now considered is whether there is any likelihood of embarrassment in case the present proceedings are continued and whether it is likely to prejudice the defence of the accused in the criminal case. One of the factors which weighed with the Supreme Court for granting stay of civil suit was that often the civil suit drags on for years and it was undesirable that a criminal prosecution should wait till everyone concerned forgets about the crime. The present proceedings are, however, summary in nature. The Companies Act is a complete Code by itself and, therefore, the ground which weighed with the Supreme Court strictly is not applicable to present proceedings. As noticed above, the respondent took nearly nine months i.e. from June 1991 to March 1992 in filing the present application. Before filing the application the respondent has been taking time to file reply to the winding up petition. Furthermore, except stating that the criminal complaint and present winding up proceedings are based on same set of facts, the respondent has not explained as to in what manner its defence in criminal proceedings will be embarrassed and what prejudice will be caused in case these proceedings continue and are not stayed. Only vague averments have been made in the application. In Star Paper Mills Limited v. M/s. Behari Lal Madanlal Jaipuria Ltd. and others, A.I.R. 1990 Delhi 241, I have held that it is not necessary to always stay proceedings in civil action and whether the proceedings in civil action should be stayed or parallel proceedings both civil and criminal may continue depend upon facts and circumstances of each case. There is no legal bar to the continuance of the civil and criminal proceedings simultaneously. Having regard to all the facts and circumstances of the case I have no hesitation in coming to the conclusion that the present application is misconceived and has been filed with a view to delay these proceedings. The application is, accordingly, dismissed with costs. Counsel's fee Rs. 1,500/-".


(XIII) In the case of (Mathew v. Sony Cyriac)18, decided by Kerala High Court (Justice P.K. Balasubrramanyan) in C.R.P. No. 800 of 1995 decided on 3rd July, 1995 the learned Judge has succinctly observed in the context of section 138 proceedings and Article 20(3) of the Constitution of India as under :---


"...According to me there is no substance in the contention raised on behalf of the defendants that they cannot be compelled to file a written statement in the suits based allegedly on the dishonoured cheques. To make out an offence under section 138 of the Negotiable Instruments Act a notice has to be issued on behalf of the drawee or such other person entitled to encash the instrument calling upon the drawer to pay the amount covered by the dishonoured cheque within the time stipulated in the section. At that stage the drawer of the cheque is bound to adopt a specific stand either by paying off the pre-existing debt or putting forward his contention in respect of the cheque and in respect of the liability. In other words the drawee (sic drawer) is bound to disclose his defence, if he has any, when he receives the notice contemplated by proviso (b) to section 138 of the Negotiable Instruments Act. I, therefore, find no substance in the argument that by being compelled to file written statement in the suits, the defendants would be forced to disclose their defence and that would amount to violation of their fundamental rights under Article 20(3) of the Constitution of India. A Negotiable Instrument is the life blood of commerce and section 138 of the Negotiable Instruments Act was enacted to ensure the preservation of that concept. As observed by Eyre, C.B. In (Gioson v. Minert)19, 1791(1) H.B. 1569. "The wit of man cannot devise a thing better calculated for circulation. The value of the writing, the assignable quality of it, and the particular mode of assigning it, are created and determined in the original frame and constitution of the instrument itself, and the party to whom such a Bill of Exchange is intended has only to read it, need look no further and has nothing to do with any private history that may belong to it. "It is in that context that section 138 of the Negotiable Instruments Act insists only on the establishment of the conditions specified therein and section 140 of the Negotiable Instruments Act precludes a defence to a prosecution under section 138 of the Negotiable Instruments Act has necessarily either to deny the issuance of the instrument or to confirm it and if he is confirming the issuance of the instrument at best his defence can only be the absence of the other elements referred to in section 138 of the Negotiable Instruments Act. The filing of written statement in the suit either confirming the issuance of the cheque or denying the issuance of the cheque and pleading the absence or failure of consideration cannot, therefore, affect the defence that may be open to him in a prosecution under section 138 of the Negotiable Instruments Act. As observed by Padmanabhan, J., in Padmanabha Pillai's case even if the civil litigation goes against the defendant, that can only have relevance in considering the sentencing discretion of the Criminal Court. In my view the observations in Apeejay Private Ltd.s case (supra) are somewhat wide and in any view may not cover cases arising under section 138 of the Negotiable instruments Act in view of the fact that even when he receives notice under the proviso (b) to section 138 of the Negotiable Instruments Act, the drawer is obliged either to honour the instrument or to put forward his defence. Of course, mere failure to reply to a notice issued to him under proviso (b) to section 138 of the Negotiable Instruments Act cannot put the drawer in a better position than the one who takes us to his definite stand in reply to the notice issued to him. In such a situation I am satisfied that there is no need to stay the suits based on the cheques merely because prosecutions have been initiated under section 138 of the Negotiable Instruments Act against the defendants."


7. Shir Naphade the learned Counsel for the defendants placed heavy reliance on the judgement reported in the case of M.S. Sheriff v. State of Madras, A.I.R. 1954 S.C. 397. According to him para 16 is the correct law laid down by the Supreme Court and that it should be followed. I reproduce para 16 :-


"Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undersirable to let things slide till memories have grown too dim to trust."


Shri Naphade emphasised the fact that if the defendants are compelled to file an affidavit in reply in the above summons for judgments disclosing their defence it would cause embarrassment to the defendants and that the trial before the criminal Court would not be fair and impartial. The right to have a fair and impartial trial before a Criminal Court is protected under Article 21 of the Constitution of India, says the learned Counsel. In the context of the observations of the Supreme Court in the case of M/s. Kalyan Sunderam Cement Industries (supra) the learned Counsel submits that it has not considered the earlier judgement of the Supreme Court in the case of M.S. Sheriff (supra) and therefore, it is a obiter which is not binding on this Court. He has cited a judgment of the Division Bench of this Court, in the case of (Mohandas Issardas and others v. A.N. Sattanathan)20, reported in A.I.R. 1955 Bombay 113 on the law of precendents and the meaning of obiter dictum.


8. Shri Naphade tried to bring the case of defendants under the umbrella of Article 21 of the Constitution of India. We gave great emphasis on the law laid down by the Apex Court in the case of (Maneka Gandhi v. Union of India)21, reported in A.I.R. 1978 S.C. 597. Shri Naphade in his usual skill tried to bring in the case of the defendants/accused within the four corners of the Article 21 of the Constitution, which has conferred fundamental right of preservation of life and personal liberty. This article provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In the present case the learned Counsel has tried to take help from this celebrated judgement stretching the logic of the ratio of the judgement for the benefit of the defendants accused before the Criminal Court on the line that if the defendants are compelled or required to file an affidavit in reply in the present proceedings they would be required to disclose their defence which fact would seriously prejudice them before the Criminal Court in the criminal proceedings and that would greatly embarrass them in defending their cases in the criminal proceedings, resulting into an unfair trial, whereby they would suffer deprivation of their life or personal liberty (?). Shri Naphade has assailed this position requiring the defendants/accused to disclose in the civil proceedings during the pendency of the criminal proceedings against them as the procedure being violative of Article 21 of the Constitution of India. With respect to the learned Counsel, the submissions and the logic is farfetched and cannot be accepted by me.


9. In my opinion, the protection of Article 21 is available to all the persons and not to the defendants/accused only, though by and large the accused in the criminal proceedings have been able to get greater benefit of this article than the victims. There is absolutely no doubt that the procedure established by law has to be fair, just and reasonable to both the parties and not to the accused alone. Speedy and expeditious trial of every litigation is the fundamental hope of every litigant. Life and personal liberty also take into their compass civil rights and remedies of the litigation. They are also entitled to have a decent standard of life, worthy living and they also cannot be deprived of this fundamental right to have their civil disputes resolved, settled or adjudicated by civil courts in accordance with fair, just and reasonable procedure established by the law. Shir Naphade in his usual fairness has accepted the fact that procedure established under Order XXXVII, Rule 2 of the Code of Civil Procedure for summary proceedings cannot be challenged to be in violation of the Constitution including the Articles 14 and/or 21. He has confined the stretch of Article 21 only to the question requiring the defendants to disclose their defence by filing their affidavit in reply to the summons for judgement.


10. Shri Divekar, the learned Advocate for the defendants, after adopting the submissions of Shri Naphade has added that if the defendants are required to disclose their defence, the complainants in the criminal proceedings would manipulate and regulate their case and evidence to defeat and/or frustrate the defence available to the accused in those proceedings. He has also submitted that Oxygen which is available in the cross-examination of the prosecution witnesses would be taken away and the element of surprise in the cross examination would vanish entirely, if the defence is made known to the complainants. Shri Divekar also submitted that the issue of determination of law also exists in the criminal proceedings and all the ingredients of section 138 of the Act will have to be determined in the criminal proceedings also. According to him, if the question of issue of repayment of debt, issue of cheque and the question of consideration are the common factors in civil as well as the criminal proceedings, in that case, the defendants have to disclose their defence on all these ingredients and their case before the Criminal Court would seriously get prejudiced. Shri Naphade has further tried to distinguish all the judgements cited by Shri Bookwalla on the point that in none of these cases the question of Article 21 was under consideration and therefore, they cannot be applied in the present case. In his submissions criminal trial should be given precedence and the present civil proceedings should not be proceeded with until the final outcome of the criminal proceedings. The learned Counsel further submitted that if civil proceedings are not proceeded with for the time being and are kept in abeyance, the plaintiffs would be at the most deprived of monetary gain while the defendants/accused would be likely to be deprived of their personal liberty. Shri Naphade, therefore, has tried to draw a battle line between the perennial forces of personal liberty and the property. He has concluded that the balance should tilt in favour of the defendants/accused. He has, therefore, made a fervent concluding appeal to consider this issue in the changed circumstantial scheme through the new lens and bright light thrown by the judgement of the Supreme Court in the case of Maneka Gandhi (supra).


11. There is no doubt that the facts in the civil proceedings before me and the criminal proceedings are more or less the same. The final consequences or result of the proceedings, however, might be divergent and different. In the civil proceedings, the civil consequences follow while in the criminal proceedings penal consequences take place. The accused in the criminal proceedings get punished but their liability to pay to the creditor is not discharged. The creditor has perhaps a satisfaction of getting his debtor punished by way of imprisonment but thereby he does not stand benefilted in any other way as he does not get his debt back. He has pinned his hopes to get his money back only in the civil proceedings. As a citizen he is also aspiring to be protected by the provisions of Constitution including the Article 21. He also needs protection against the bad-debtors. According to him, he has not committed any offence or sin by advancing or lending money to the defendants. It is a lawful business which he is permitted to carry on within the frame work of Article 19 of the Constitution of India.


12. The plaintiffs in the present case have advanced loans to the defendants on the agreed terms of contract and on the assurance that they have their civil remedy before the Civil Court to recover back the loans advanced by them. The civil procedure is established by law and the same is not challenged as unjust, unfair or unreasonable. The plaintiffs have approached this Court under Order XXXVII, Rule 2 of the C.P.C. for a decree against the defendants. The plaintiffs have set out all the facts in the plaint which are necessary for any Civil Court to grant a decree. The plaintiffs have specifically averred the transactions of giving or advancing of loans to the defendants under the written contract and in accordance with the terms which were agreed by the defendants. The defendants have voluntarily issued cheques in favour of the plaintiffs for the amounts due to them under the said contract and all such cheques in the present proceedings have been admittedly dishonoured. This is the limit or end of the civil proceedings and the beginning of the criminal one. Since the cheques have been dishonoured the plaintiffs have become entitled to proceed criminally under section 138 of the Act and they have instituted such proceedings against the defendants who are accused in those proceedings. I do not see any serious prejudice or likelihood of embarrassment or prejudice to the defendants/accused in the criminal proceedings if they are required to file their affidavit to admit or deny and to disclose such facts sufficient to enable them to get conditional or unconditional leave to defend. All that they have to say on oath in the affidavit in civil proceedings is about the transaction between the parties based on the written contract, receipt of actual loan or money from the plaintiffs and issuance of the cheques in favour of the plaintiffs and the dishonour of the same. In no case, they can deny or suppress the truth and they have to disclose the aforesaid crucial facts which are required in the civil litigation. If the plaintiffs have good case in the criminal proceedings, they would finally succeed and if the defendants succeed in demolishing the prosecution case, they would be spared from punishment. The defendants have no right to hide under the so called likelihood of embarrassment in their defence in the criminal proceedings at the cost of the plaintiffs. If the defendants are allowed this immunity, the plaintiffs would be caused serious prejudice and would suffer great loss during the course of the time. The banks and the financial institutions would be deprived of their own business resultantly depriving the employees, the source of their livelihood i.e. the employment, if every such debtor acts in this fashion of getting loan and refusing to pay back the debt by dishonouring the cheques and taking shelter every time under the guise of pendency of criminal proceedings against them. If this is allowed the wheels of the financial institutions and the banking industry would be halted and crores of rupees would be locked up in the courts. Such course would be certainly against the trade and commerce. The chain reaction would finally reflect on the society and the progress of the nation. The life and personal liberty of millions of the employees who are employed by these banks or financial institutions would also suffer fi

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nally. For the sake of the defendant/accused to save him from his fanciful notion of likelihood prejudice or embarrassment, I cannot risk life and personal liberty of the millions of people in this country. At a first blush this may sound a little far fetched but if I lay down this law, it will have far reaching repercussions which would finally slow down the wheel of the trade, business and industry. Every moving industrial wheel would be finally slowed down if the dishonoured cheques await their fate for years or decades. In these circumstances, I am not able to accept the submissions of Shri Naphade and the other Counsel appearing for the defendants that the defendants should not be compelled or required to file their affidavit in reply and to disclose their defence. They can decide what defence in the civil matter is to be disclosed and the defence likely to cause them embarrassment and prejudice in the criminal proceedings can be withheld. 13. In the present proceedings, this Court is called upon to determine the civil liability of the defendants. The plaintiffs are entitled to get their disputes adjudicated quickly and expeditiously under the specially provided chapter of summary proceedings. They cannot be told to wait till the final result of the criminal proceedings. If that is done, their civil remedy would be wholly frustrated and stultified. The Order XXXVII which has enlightened some hopes in the mind of the plaintiffs for quick disposal of their suits, would become redundant and nugatory. The criminal proceedings cannot be treated as a safe hiding place for the defendants/accused so that the hands of civil remedy cannot reach them. To protect them would be to encourage dishonesty and immorality in the society. According to me, every debtor who has borrowed money must pay back the debt. He may seek some leniency or mercy but not at the cost of erosion of values in the society. Such a course would perhaps make people to resort to illegal and paralegal machinery for recovery of their debts. Finally they may not resort to either the civil remedy or even the lawful criminal remedy. I, therefore, hold that the defendants are liable to file their affidavits in reply disclosing their defence, if any, in the summons for judgement and I refuse to stay the present proceedings until the final disposal of the criminal proceedings unconditionally. 14. OPTION In case the defendants do not want to disclose their defence at this stage in these proceedings until the final result of the criminal proceedings before the Court of the first instance i.e. Metropolitan Magistrate, I give them the following option or conditional leave not to file their affidavit-in-reply as under :--- (a) I would stay the above summary proceedings in all the three suits if the defendants deposit in this Court the whole of the principal amount of the suit claim in each of the suits respectively within 12 weeks from today. It is left to the defendants to either file their defence within two weeks from today or to deposit the principal of the suit claim in respective suits within 12 weeks from today. (b) On defendants depositing the respective amounts as above in the respective suits, the civil proceedings would be stayed till the final outcome of the criminal proceedings before the Magistrate's Court. (c) On failure of the defendants to deposit the amounts as above in respective suits the plaintiffs would be entitled to seek ex parte decree against them from this Court. (d) If the defendants exercise their option to file their affidavits in reply and disclose their defence the question of grant of leave to defend would be considered on merits after completion of the pleadings in the summons for judgement. (e) Chamber Summons No. 841 of 2000 is disposed of as above. Summonses for judgments are adjourned by two weeks to enable the defendants to disclose their option to either deposit the amount or to file their affidavit in reply. (f) In case the defendants deposit the whole principal amount of the suit claim in respective suits, the Prothonotary & Sr. Master shall invest the entire amount in any nationalised bank initially for a period of three years to be renewed from time to time till the final disposal of the suit without reference to the Court.
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