ORDER S.S. Parkar, J.
Civil Court Judgment not Binding on Criminal Court to Convict the Accused
1. This petition has been filed by the wife-original complainant challenging the order of acquittal of her husband and mother-in-law, respondent Nos. 1 and 2 respectively by the Addl. Sessions Judge, Greater Bombay.
2. The petitioner had initially lodged F.I.R. with the police against her husband, father-in-law and mother-in-law on 31st August, 1985 for the offence of breach of trust under section 406 read withsection 114 of I.P.C. for misappropriating her jewellery and other belongings between the period 4-5-1985 to 11-9-1985. She had left the matrimonial house on 4-5-1985 and gone to her parental house when the relations between the parties were cordial. When she wanted to return to the matrimonial house, her husband and in-laws did not want her to come back. In spite of the efforts made through some persons, the respondents were against her corning back to the matrimonial house. When she had gone to her parental house she had left her belongings including the golden jewellery at the matrimonial house which the respondents refused to return to her and, therefore, the complaint was lodged with the police and the respondents as well as her father-in-law were prosecuted in the Addl. Chief Metropolitan Magistrate’s 24th Court, Borivli, Bombay in Case No. 5139/P of 1985 for the aforesaid offences. The evidence was led by the parties and the trial Court found the respondents guilty and, therefore, were convicted for the offence under section 406read with section 34 of I.P.C. and sentenced for imprisonment till rising of the Court and to pay a fine of Rs. 3000/- in default to suffer R.I. for six months each. It appears the father-in-law had already died before the said order of conviction was passed by the trial Court on 7-5-1991 and, therefore, only respondents were convicted. The respondents impugned the said order of conviction by filing Criminal Appeal No. 95 of 1991 in the Sessions Court. The Addl. Sessions Judge, Greater Bombay, after reappreciating the entire evidence on record, was of the view that the offence was not proved against the respondents beyond a reasonable doubt and, therefore, set aside the order of conviction recorded by the trial Court and acquitted the respondents by his judgment and order dated 9th March, 1992 which is challenged in the present petition filed by the wife who lodged the F.I.R. with the police. Though it was State prosecution, the State had not chosen to prefer appeal against the order of acquittal. The wife-original complainant not entitled to file appeal against the order of acquittal has therefore, filed the writ petition challenging the order of acquittal.
3. The matter did not rest with filing of the criminal prosecution by the wife against the respondents but the husband filed a petition for divorce in the Family Court against the wife. The wife filed counter claim for her golden ornaments and other belongings by way of Written Statement in the petition filed by the husband for divorce. The wife also filed a suit for maintenance in the Family Court against the husband. The Family Court dismissed the husband’s petition for divorce so also the counter claim filed by the wife for ornaments and other belongings. The claim for maintenance of the wife was, however, granted by the Family Court and the husband was directed to pay a sum of Rs. 800/- per month towards the maintenance to the wife.
4. Feeling aggrieved by the decisions of the Family Court, both the parties preferred First Appeals in this Court on the Civil Side. Husband filed First Appeal No. 669 of 1990 against the order of dismissal of his divorce petition and First Appeal No. 670 of 1990 against the order granting maintenance to wife. Wife filed First Appeal No. 826 of 1990 for enhancement of maintenance amount and First Appeal No. 825 of 1990 against the order of dismissal of counter claim by the Family Court. All the aforesaid four Appeals were heard by the Division Bench of the High Court and were disposed of by a common judgment delivered on 12th September 1991 dismissing both the Appeals filed by the husband and the Appeal filed by the wife for enhancement of maintenance amount but allowed the First Appeal No. 825 of 1990 by the wife against the order of Family Court dismissing her counter claim for return of ornaments and other belongings.
5. Mr. Badkar, the learned Counsel appearing on behalf of the petitioner has contended firstly that with regard to the claim for ornaments made by the wife, there are two divergent findings, one given by the High Court in First Appeal No. 825 of 1990 whereby the wife’s Appeal for return of her ornaments was allowed and the Sessions Court has acquitted the respondents holding that the offence of breach of trust against the respondents was not proved. According to Mr. Badkar the finding of the Civil Court must prevail and, therefore, this Court by allowing this writ petition must set aside the order of the Addl. Sessions Judge acquitting the respondents. He cited the decision of the Supreme Court in the case of Karamchand Ganga Pershad and another v. Union of India and others, . He relied on the observations of the Supreme Court in para 4 of the judgment in the above case wherein it is observed as follows:
“…It is a well established principle of law that the decisions of the Civil Courts are binding on the criminal courts. The converse is not true…”
That was a case where the High Court had rejected the writ petition filed on the Civil Side on the sole ground that in view of the pendency of the criminal proceedings before some Court, it was inappropriate for the High Court to pronounce on the questions arising for decisions in the writ petition. The question which had arisen for consideration was with regard to the ban on the export levied by the State Government. The result of the criminal proceedings filed in the Criminal Court depended on the decision on the question whether the ban on the export was lifted by the State Government and, therefore, the High Court desisted from deciding the question which was raised in the writ petition so that it should not affect the criminal proceedings. When the parties went in appeal to the Supreme Court, the dismissal of the writ petition by the High Court on that technical ground was set aside and the matters were remanded to the High Court to dispose of the petitions on merits.
6. In my view, the ratio of the decision of the Supreme Court in Karamchand case would not be applicable in the present case. In this case the Sessions Court, after considering the entire evidence on record, has given the finding that the offence of criminal breach of trust was not proved against the respondents. It is well settled that the standard of proof in criminal and civil proceedings are different. While the prosecution has to prove its case against the accused beyond reasonable doubt in a Criminal trial, in the Civil proceedings the issue is decided on the preponderance of probabilities. This Court in the First Appeal preferred by the wife has, on the basis of the evidence, held that the jewellery was in possession of the respondents, and, therefore, respondent No. 1 was directed to return it to the wife. This finding of the Civil Court, though of a Higher Court like the High Court, cannot be mechanically followed in the criminal proceedings even by a lower Court, like the Sessions Court. In the criminal proceedings, the consequences are altogether different. The only common consequence between the two proceedings would be to direct the return of the jewellery to the wife in case the finding was in favour of the wife. But in the criminal proceedings further consequence would follow i.e. conviction of the respondents-accused by virtue of the finding in favour of the wife. It is well established that the standard of proof required in two proceedings, civil and criminal, are different. In my view, the finding of the Civil Court, though of a higher Court, on different set of evidence, cannot be ipso facto binding on a Criminal Court so as to result in the conviction of the respondents-accused. The observations of the Supreme Court relied on by Mr. Badkar in the above referred case were made in altogether different context.
7. The whole thrust of the argument of Mr. Badkar was on the different findings arrived at by this Court in the First Appeal which, in my opinion, cannot be mechanically applied in the criminal proceedings where not only the standard of proof is different but also the Criminal Court was considering absolutely different set of evidence led before it. It cannot be gainsaid, however, that the finding of the High Court in Civil proceedings that the jewellery was at the relevant time in the matrimonial house and consequent order directing the respondents to return the same to the wife is binding on the respondents notwithstanding the contrary finding given in the criminal proceedings. To that extent the finding of the Civil Court is binding on the parties but not so as to result in the conviction of the respondents though there was contrary finding of the Criminal Court as contended by Mr. Badkar.
8. Mr. Badkar then contended that the Sessions Court ought not to have disturbed the order of conviction recorded by the trial Court who is the Court of facts. The submission of Mr. Badkar ignores the well settled principle that the Appeal Court has every right or power to reappreciate the entire evidence and substitute its own finding and is not bound by the findings of the trial Court on questions of fact. The first Appellate Court, like the Sessions Court in this case, is a final Court of facts and, therefore was empowered to reappreciate the evidence and give its own findings on questions of facts. In fact, it is not possible for this Court to reappreciate the evidence in the writ petition and give its own finding.
9. Even otherwise, after going through the reasoning of the Sessions Court, I find nothing wrong in the finding which the Sessions Court has arrived at after appreciating the evidence on record. It is further well settled that even in appeal against the order of acquittal, which is not before this Court as the State has not preferred one which it was entitled to do so, this Court cannot disturb the order of acquittal unless it is perverse. On the contrary, the order of acquittal has to be confirmed by this Court if the view taken by the lower Court while acquitting the accused is a possible view. As observed earlier, after going through the entire judgment of the Sessions Court, I do not find the reasoning of the Sessions Court to be preverse which would warrant me to interfere even in an appeal against the order of acquittal. That being the position, I find the present petition is devoid of merits which deserves to be dismissed.
10. In the result this petition is dismissed. Rule is discharged.
11. Petition dismissed.