VISHNU DUTT SHARMA versus DAYA SAPRA

Citation: [2009] 7 S.C.R. 977 · Decided: 05-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 7 S.C'.R. 977 
VISHNU .DUTT SHARMA 
A 
V. 
DAYA SAPRA 
Civil Appeal No. 3238 of 2009 
MAY 5, 2009 
8 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
Code of Civil Procedure, 1908- 0. 7, r. 11 (d) - Rejection 
' 
of plaint - Civil suit for recovery of money whereas criminal 
.+ 
case alleging dishonour of cheque -Acquittal by criminal court 
-Application ulo. 7 r. 11(d) on the ground that criminal case c 
dismissed - Dismissal of, by civil judge holding that finding 
of criminal court would not operate as res judicata in civil suit 
- Set aside by High Court holding tbat principle of res judicata 
applicable and civil suit by plaintiff was abuse of process of 
law - Sustainability of - Held: Not sustainable - Principle of. D 
~ 
res judicata not applicable - Judgment of criminal court in 
,. 
civil proceeding will only have limited application - It would 
not be binding in civil proceeding -
Civil suit must be 
determined on its own, in view the evidence on record and not 
in terms of evidence brought in criminal proceedings - Thus, 
E 
order of High Court set aside. 
The question which arose for consideration 'in this 
appeal is with regard to the effect of a judgment passed 
,~I 
in a criminal proceeding on a pending civil proceeding. 
F 
Allowing the appeal, the Court 
HELD: 1.1 In the instant case, the cause of action for 
institution of the civil suit was grant of loan whereas that 
of the criminal case was return of a cheque inter alia on 
the premise that the account of the accused was G. 
"'-~ 
insufficient to honour it or that it exceeded the amount 
arranged to be paid fro_m that account by an agreement 
with the bank. [Para 13] [984-D~E] 
977 
H 
978 
SUPREME COURT REPORTS 
[2009) 7 S.C.R. 
A 
1.2 Order 7 Rule 11 (d) CPC provides for rejection of 
~ 
a plaint inter alia on the premise the suit was barred by 
any statute. Such an embargo in the maintainability of the 
suit must be apparent from the averments made in the 
plaint. A creditor can maintain a civil and criminal 
B proceeding at the same time. Both the proceeding, thus, 
can run parallely. The fact required to be proved for 
obtaining a decree in the civil suit and a judgment of 
conviction in the criminal proceedings may be 
overlapping but the standard of proof in a criminal case 
vis-a-vis a civil suit, indisputably is different. Whereas in 
·~ 
c a criminal case the prosecution is bound to prove the 
commission of the offence on the part of the accused 
beyond any reasonable doubt, in a civil suit 'prepon-
derance of probability' would serve the purpose of -
obtaining a decree. [Paras 10 and 11) [983-G-H; 984-A-C] 
D 
1.3 In a criminal proceeding, although upon discharge 
of initial burden by the complaint, the burden of proof may 
shift on an accused, the court must apply the principles 
.t 
of 'presumption of innocence as a human rjght'. The 
statutory provisions containing the doctrine of reverse 
E burden must therefore be construed strictly. Whereas a 
provision containing reverse burden on an accused would 
be construed strictly and subject to the strict proof of the 
foundational fact by the complainant, in a civil proceeding 
no such restriction can be imposed. Reverse burden or 
,_ 
F evidentiary burden on an accused, thus, would require 
strict interpretation and application. However, in a civil suit 
such strict compliance may not be insisted upon. If that 
be so, it cannot be said that a judgment rP.ndered in 
criminal proceeding would make continuati..>n of a civil 
G proceeding an abuse of the process of court. [Paras 16 
and 19) [965-D-F; 989-B-C] 
Krishna Janardhan Bhat vs. Dattatraya G. Hegde 2008 
~.) .. 
( 1) SCALE 421; Bharat Barrel & Drum Manufacturing 
Company v. Amin Chand Payrelal ( 1999) 3 SCC 35 Noor Aga 
H v. State of Punjab 2008 (9) SCALE 68 - referred to 
VISHNU DUTT SHARMA V. DAYA SAPRA 
979 
~ 
i 
1.4 Any person may as of right have access to the A 
courts of justice. Section 9 CPC enables him to file a suit 
of civil nature excepting those, the cognizance whereof 
is expressly or by necessary implication barred. Or. 7 r. 
11 (d) is one of such provision which provides for rejection 
of plaint, if it is barred by any law. Or. 7 r. 11 (d) being one B 
of the exception, thus, must be strictly construed. Answer 
to the question whether the civil suit was barred on the 
• 
day on which it was filed indisputably must be rendered 
~ 
in the negative. If as on the date of institution of the suit, 
plaint could not 

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