1991 (9) TMI 370

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....t presented the same to the Banker but they were returned with the endorsement "refer to the drawer". According to the appellant cheques were represented on two further occasion on instructions of the respondent and were dishonoured. The appellant thereupon issued registered notice dated 7-6-91 to the respondent demanding payment, as contemplated under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The suit was filed on 5-7-91 praying for two declaratory reliefs, namely, (1) declaration that the appellant is not entitled to receive any amount from the respondent, and (2) declaration that provisions of Section 138 of the Act are not applicable in the matter of four cheques. Respondent also file....

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....n particular the provisions of Section 41, had been adverted to, perhaps the lower Court would not have misled itself into granting the impugned order. 5. There is dispute between the parties regarding the nature of transaction between them, as to the circumstance under and the purpose for which the cheques were issued. That being so it is open to either of the parties to seek remedy in a civil Court and if such remedy is sought, the Civil Court is bound to give a decision. If, however, either of the parties seeks recourse to a competent criminal Court, there is no reason why the criminal court should be restrained from examining the complaint in the light of Section 138 of the Act and in accordance with the provisions of the Code of Crimi....

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....ses covered thereunder, it must necessarily follow that the court cannot grant a temporary relief of a similar nature. We are fortified in this view by the decision of the Supreme Court in State of Orissa v. Madan Gopal Gungta AIR 1952 SC 12 followed in Cotton Corporation of India Limited v. United Industrial Bank Limited AIR 1983 SC 1272. 7. The case in hand falls squarely under Clause (b) as well as Clause (d) of Section 41 of the Specific Relief Act, 1963. The lower Court in which the civil suit is pending and the criminal court in which the appellant may choose to file a criminal complaint are not in the same hierarchy of Courts. The criminal court is not subordinate to the civil Court in the instant case. That being so, Clause (b), wh....