D. PURUSHOTAMA REDDY & ANR. v. K. SATEESH

Citation: [2008] 11 S.C.R. 738

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

D. PURUSHOTAMA REDDY & ANR. v. K. SATEESH.pdf

Judgment text

[2008] 11 S. C. R. 738 I D. PURUSHOTAMA REDDY & ANR. . _ v. K. SATEESH (Civil Appeal No. 4751 of 2008) AGUSUT 1, 2008 [S. B. SINHA AND CYRIAC JOSEPH, JJ. ] +~ Code of Criminal Procedure, 1973 - s. 357 (1) and (5) - '- Issuance of cheque towards payment of loan - Dishonour of i cheque - Initiation of criminal as well as civil proceedings against the defaulter - In criminal case direction to pay the creditor the principal amount - Amount paid - Thereafter decree passed for the principal amount as well as interest thereon - Appeal against decree dismissed - On appeal, held: In viev'I ofs. 357, a duty is cast upon the civil court to take into consideration the amount paid in the criminal proceeding, even if such plea is not taken by the party - Such order can also be . :c.

passed by the appellate or revisional court - The mistake committed by courts below is rectified in exercise of jurisdiction under Article 136 and 142 of the Constitution - Matter remitted to trial court for preparation of fresh decree - Negotiable Instruments Act, 1881 - ss. 138 and 142. Appellants issued cheques in favour of the respondent towards payment of loan of Rs. 2,00,0001-. The F· cheques were dishonoured. Respondent initiated criminal proceedings uls 200 Cr. P. C. rlw ss. 138 and 142 of Negotiable Instruments Act, 1881. Trial court convicted the appellants and imposed a fine of Rs. 2,10,0001- with default clause. It directed to pay Rs. 2,00,0001- out of the fine to the respondent. Appellants paid the entire amount of fine. Respondent was paid the amount as directed by the court. Respondent had also filed civil suit against the ap- -j. pellants. The suit was decreed by trial court for a sum of .. ,... SATEESH Rs. 3,09,000/-. Appellant deposited Rs. 1,90,000/-.

Appeal against the decree was dismissed. The question for consideration before this court was whether the court in civil proceeding can pass a money decree without taking into consideration the amount de- ...... -. - posited in a criminal proceeding. Partly allowing the appeal, the Court HELD: 1. The suit was decreed after the order was passed in the criminal proceedings. Deposit of a sum of ~ Rs. 2,00,000/- by the appellants in favour of the respon- .. dent was directed by the Criminal Court. Such an order should have been ~ken into consideration by the Trial Court while passing the decree. [Para 11] [743-D] 2. In terms of sub-section (1) of Section 357 Cr. P. C. criminal court is empowered to direct that out of the . ,,. amount recovered from an accused by way of fine, com- ..... pensation 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 al~o. [Para 11] [743-F-G] 3. 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. 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. [Para 11] [743-E, 743-H, 744-A] 4. Having regard to the provisions of Sub-section (5) of Section 357 Cr. P. C. , 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 respon- dent. It is futile to urge that on the date pn which the civil court passed the decree, the. appellants were. not convicted.

As 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/-, Le. , Rs. 2,10,0001. : 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 th~_ same into consideration. Such consideration . wa!? required to be bestowed on the trial court/Higti court • t •• . • • . despite the fact that the said provision was not· brought to its notice. Actus curiae-neminem: gravabit (no person shall ·be prejudiced by ·an . act of court)· is a well-known maxim. (Paras 13,16 and 17] [744-D-F, 747 E-F] · Dilip S. Oahanukar v. Kotak Mahindra Co. · Ltd. · and Anr. 2007 \6) SCC 528; Manish Jalan v. State of Kamataka JT 2008 (7) SC 643; New India Assurance Co. v. Nusli Neville Wadia and Ani 2007 (14) SCALE 556 - referred to. 5.

" This Court in exercise of its jurisdiction under Article 136 as also under Article 142 of the Constitution of India can direct rectification of a mistake committed by the courts below. The matter is remitted to the trial Judge. Trial Judge is directed to take into cqnsideration the amount of compensation deposited by the appellants in the criminal case and for the said purpose, a fresh decree should be drawn up while correcting the decree in terms of the order of this Court. While preparation of the fresh decree various dates on which the diverse amounts had been deposited by the appellants should be taken into consideration and calculate the interest payable thereupon. [Paras 17 and 18] [747 F-G-H, 748 A-B] Case Law Reference 2007 (6) SCC 528 Referred to: Para 14 JT '2008 (7) SC 643 Referred to. Para 14 2007 (14) SCALE 556 Referred to. Para 15 .... ,. , CIVIL APPELLATE JURllSDICTION : Civil Appeal No. 4751 of 2008 From the final Judgment and Order dated 22. 12.

2006 of the High Court of Karnataka at' Bangalore in Regular First Ap~ peal No. 1171 of 2006 _,.... S. N. Bhat for the Appellants. Jana Kalyan Das for the Respondent. The Judgment of the Court was delivered by 5. 8. SINHA, J : 1. Leave granted. 2. 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, is the core question involved herein. .. ,,. 3. Plaintiff - Respondent filed a suit against the appellants, which was marked as O. S. No. 1844 of 2004, for recovery of a sum of Rs. 3,09,000/- with interest. In the plaint, it was averred that Shri K. Balasubramanyam (father of the respondent) and Defendant No. 1 (Appellant No. 1 herein) were good friends. Defendant Nos. 1 and 2 had been carrying on business. They approached the plaintiff through Shri K. Balasubramanyam for financial assistance and obtained a loan of Rs. 2,00,000/- (Rs. 1,00,000/- on 15. 03.

2001 and Rs. 1,00,000/- on 25. 03. 2001 ). Two promissory notes were also executed therefor. 4. Defendants - Appellants purported to be in discharge of the said debt issued two cheques bearing Nos. 3960 dated 15. 03. 2003 and 3959 dated 31. 05. 2003 drawn on Bank of India, which on presentation, were returned dishonoured. lhdisputably, a complaint under Section 200 of the Code of Criminal ... - Procedure, 1973 read with Sections 138 and 142 of the Nego- ~ tiable Instruments Act, 1881 (for short "the Act"), marked as C. C. No. 19337 of 2003, was filed. .. '•"f" •A judgment of conviction and sentence against the appellant was passed therein by an order dated 15. 12. 2005 sen~ · tencing h. im to pay a sum of Rs. 2, 10,000 by way of fine and in d~fault thereof to undergo simple imprisonment for a period of three months. It was also directed that out of the said amount. of s fine, a sum of Rs.

2,00,000/- would be paid to the complainant +byway of compensation in terms of Section 357 of the Code of Criminal Procedure (for short "the Code") and the r~m~ining amount was to be payable to the State. In the said crim. inal proceedings, the appellants deposited a sum of Rs. 31,500/- on orne in mind. A criminal case is not a substitution for a civil suit, far less execution of a decree which may be passed. 40. Prosecution under the Act may be contemplated as a measure of deterrence, but the same is never meant to be a persecution. ~ 41. Even in a case where violation of fundamental right guaranteed under Article 21 is alleged, the amouht of compensation cannot be arbitrary ·or unreasonable even under public law. " · [See also Manish Ja/an v. State of Karnataka JT 2008 -B · (7) SC 643) -r~ This Court therein adopted the doctrine of purposive construction. It was opined that compensation directed to be paid should:be a reasonable one. 15. In. New India Assurance Co. v.

Nusli Neville Wadia and Anr. [2007 (14) SCALE 556], it was·held: "50. Except in the first category of cases, as . has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our ·opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 ofthe Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may -A give rise to an anomaly or absurdity which must be avoided.

So as to enable a superior court to interpret a statute in a reasonable manner, the court mustplace itself in the chair of a reasonable legislator/ author. So done, . G the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; .... , which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd (supra). 51. Barak in his exhaustive work on 'Purposive Construe- . tion' explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Barak's words: "Hart and Sc:1chs also appear to trea_t "purpose" as a s'ubjecti~e concept. I say "appear'' because, although Hart ' and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes,.

they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people s·eeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably. " 16. Submission of the learned counsel for the respondent that the said question was not raised before the learned Trial Judge or before the High Court is of no moment. Sub-section (5) of Section 357 of the Code casts a duty upon the court. It was for the Trial Court/High Court to take the same into consideration. Such consideration was required to be bestowed despite the fact that the said provision was not brought to its notice. 17.

Actus curiae neminem gravabit (no person shall be prejudiced by an act of court) is a well-known maxim. In any event, this Court in exercise of its jurisdiction under Article 136 as also under Article 142 of the Constitution of India can direct rectification of a mistake committed by the courts below. 18. We, 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 A criminal·case and for the said purpose, the learned frial Judge should draw up a fresh decree while correcting the decree iri terms of the order of this Court. The learned Trial Judge shall, while preparing a fresh decree, take into consideration the var-ious dates on which the div. erse amounts had been deposited s by the appellants and calculate the inter~st payable thereupon. ,.

, ' 19. The appeal is allowed to the aforementioned extent. In the facts and circumstances· of the ·case, there shall be no order a~ to costs. - · · '• K. K. T.. Appeal partly allowed.