SIMULTANEOUS CIVIL AND CRIMINAL CASES

WHEN THERE IS POSSIBILITY OF FILING TWO CASES AGAINST THE ACCUSED ON CIVIL SIDE AND CRIMINAL SIDE ON TWO SEPARATED CAUSES OF ACTION, BOTH CASES ARE SIMULTANEOUS MAINTAINABLE2009[1] ALD CRIMINAL SC 599 :-

CHEQUE BOUNCE -BURDEN OF PROOF

2009 A.L.D. [1] CRIMINAL S.C. 468. : SEC.118 AND 139 PRESUMPTIONS ONCE THE EXECUTION OF CHEQUE BY ACCUSED IS PROVED BY THE COMPLAINANT, THE PRESUMPTIONS WOULD SHIFT BURDEN ON THE ACCUSED. THEN THE ACCUSED HAS TO PROVE THE NON PASSING OF CONSIDERATION BY RELYING ON THE WEAKNESS OF THE COMPLAINANT AND BY RELYING ON THE PROVISIONS OF SEC.114 OF EVIDENCE ACT AND ALL OTHER MODES HAS TO REBUT THE EVIDENCE OF THE COMPLAINANT, THEN THE PRESUMPTIONS UNDER THE ABOVE SECTION DOESNOT COME TO AID OF THE COMPLAINANT AND COMPLAINANT HAS TO POSITIVELY PROVE THE PASSING OF CONSIDERATION . WHEN THE COMPLAINANT CLEARLY STATED THAT FOR SUPPLY OF WOOLEN CARPETS, THE ACCUSED ISSUED TWO CHEQUES, WAS NOT PROVED BY THE COMPLAINANT AND ON THE OTHER HAND BY EXAMINING SALES TAX OFFICER ETC., THE ACCUSED DISPROVED THE SUPPLY OF WOOLEN CARPETS TO THE ACCUSED ON THE ALLEGED DAY. THE DEFENCE THAT THE CHEQUES WERE ISSUED AS ADVANCE IS PROBABLE – HENCE THE ACCUSED IS ENTITLED FOR ACQUITAL.

CHEQUE DEMAND NOTICE - PLACE OF PAYMENT

. 2009[1] ALD CRIMINAL[BOM.NOC.5] 5 :- IN THE STATUTORY DEMAND NOTICE, THE PLACE OF PAYMENT SHOULD BE SPECIFICALLY MENTIONED. IN THE ABSENCE OF IT , IT CAN BE PRESUMED THAT GENERALLY, IT IS DUTY OF ACCUSED TO SEARCH AND FIND AND HAS TO PAY THE AMOUNT TO THE COMPLAINANT,. IN THE NOTICE, THE ADDRESS OF THE COMPLAINANT IS GIVEN. HENCE IT IS SUFFICIENT .

QUASHING OF CRIMINAL CASES

SEC.482 OF Cr.p.c - when a case is filed as a counter blast to the case of other side, the later case is liable to be quashed . WHEN a cheque bouns case is filed against the one "x", later Mr.x filed private complaint against the payee, is not mainatainable and is liable to quashed. -482. Saving of inherent power of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

COMMENTS

Quashing proceedings.—The Court should not, except in extraordinary circumstances, exercise its jurisdiction, under Section 482, Cr. P.C., so as to quash the prosecution proceeding after they have been launched. The power of quashing criminal proceedings should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. The extraordinary or inherent power does not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. [State of Maharashtra v. Ishwar Piraji Kalpatu, 1996 Cr LJ 1127 (SC).

Where prima facie case is made out, FIR cannot be quashed under Section 482 Cr. P.C. [Vivay Kumar v. State of Punjab, 1996 Cr LJ 3070 (P &H).]

2009[1]A.L.D.S.C.200. ========== sec.482 of cr.p.c. - when there is a possibility of maintaining both civil and criminal cases = cheque bouns case UNDER SEC.405 AND 420 OF IPC and a suit for recovery of cheque amount = criminal proceedings are not liable to be quashed as it is a civil remedy case- 2009[1]A.L.D. S.C.83. ======== sec.482 cr.p.c. - while obtaining loan, and in collusion with bank officials , falsefication and forgery of accounts were taken place, then it is a criminal case and as such both civil and criminal cases are maintainable - civil case before debt recovery tribuanl and later compromise land setteled ,is no significance while taking cognizance of criminal case for the already commenced offences -2009 ALD [1] S.C. 976,

TRANSFER OF CRIMINAL CASE

Sec.407 deals with power of high court and sec.408 cr.p.c deals with the power of sessions court while transfering one case from one place to another place . 407. Power of High Court to transfer cases and appeals.— (1) Whenever it is made to appear to the High Court-

(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) That some question of law of unusual difficulty is likely to arise; or

(c) That an order under this Section is required by any provision of this Code, or will tend be the general convenience of the parties or witnesses, or is expedient for the ends of, justice, it may order-

(i) That any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) That any particular case be committed for trial of to a Court of Session; or

(iv) That any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.—

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Curt may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor, notice in, writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the applications unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose.—

Provided that such stay shall not affect the subordinate Court’s power of remand under Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the such sum not exceeding one thousand rupees as it may consider proper in the circum­stances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this Section shall be deemed to affect any order of Government under Section 197.

408. Power of Sessions Judge to transfer cases and appeals.— (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session’s division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.

(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that Section shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

2009[1] A.L.D. AP174.