Filing of both civil and criminal case maintainable

Dear friend,

Civil and Criminal proceedings are two different proceedings. They do proceed in harmony without disturbing the existence of other. My answer is affirmative.

Regards

VIRAJ KADAM

Advocate, Supreme Court of India

virajkadam@gmail.com

Mr. Kadam,

If the plaintiff believes that the seller was dishonest and cheating from the beginning, then how could the specific performance be enforced on basis of the contract in a civil suit? Also res judicata would attract to the same cause of action.

Dear Mr Anz,

Two proceedings can be initiated alongside and resjudicata would not be a bar in the two. But you do have other remedies to face the challenge and get justice. The Hon'ble Apex Court has discussed such issues many times. You can refer to the Judgment of the Hon'ble Apex Court in the matter of: M/s Indian Oil Corporation Vs. M/s NEPC India Ltd., & Ors., where along with other issues the issue at hand is also discussed. I hope that the same would bring some clarity for you. 

Knowing limited facts is is difficult to render a comprehensive advice but by what it appears the course of action which you may adopt should be that you should make efforts for quashing the Complaint by invoking the powers of the Hon'ble High Court u/s 482 of Cr.P.C. In the above stated judgment the Hon'ble Supreme Court has also laid down certain guidleines, you can refer to them and can have a better understanding if you can qualify in them. 

Complaints can be quashed in exercise of power under s.482 Cr.P.C. in the following circumstance:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. 

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. However, the power to quash shall not, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. 

(iii) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(iv) A given set of facts may make out purely a civil wrong, or purely a criminal offence or a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. Test is whether the allegations in the complaint disclose a criminal offence or not. 

(v)     A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are  different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

The Extract of the Judgment is attached for your reference. I hope that your query has been satisfied. 

Regards,

Zaryab Rizvi (Advocate)

9999784700 

www.lczf.in