GAYATHRI Vs. CLEMENT MARY

JUDGEMENT

(1.) BASED on bouncing of a cheque issued in her favour for a sum of Rs. 11,280/-, the petitioner had initiated proceedings under civil law and filed suit in S. C. No. 3589/1995 in the Court of Small causes, at Bangalore, for a sum of Rs. 16,610/- against the original JDr, namely, george husband of the present respondent. It was decreed on 28-9-1996. So also. in the proceedings initiated under criminal law, in a private complaint filed by her and registered as C. C. No. 16707/1993 on the file of the Court of VII Addl. C. M. M. , at bangalore, for the offence punishable under Section 138 of the Negotiable Instruments Act, the JDr. was convicted on 8-11-1996 and sentenced to pay a fine of Rs. 22,000/- and in default, to undergo simple imprisonment for 3 months and out of said fine amount, a sum of Rs. 11,280/-, being the cheque amount was ordered to be paid to the complainant i. e. , petitioner herein. Thereafter, to execute the decree passed in her favour in S. C. No. 3589/1995, she filed ex. Case No. 272/97 for the recovery of a sum of Rs. 18,682/ -. In that execution, attachment of salary was taken and when amount attached was received, she was paid a sum of Rs. 9,992/- totally, i. e. , paid a sum of Rs. 2,282/- on 3-4-1998, a sum of Rs. 6,252/- on 16-4-1999 and a further sum of rs. 1,458/- on 23-9-1999. It was at that stage, in view of memo of calculations filed, after taking note of the fact that the petitioner was paid Rs. 11,280/- in the criminal case, the executing Court passed the impugned order, closing the said execution case with a direction to the petitioner to refund Rs. 3,596/-, said to have been received by her in excess, to the respondent. It is against the said order, the present petition is filed by the petitioner.

(2.) HEARD both sides and perused the record. It is submitted for the petitioner that in the execution proceedings, there cannot be any adjustment of the amount paid to the petitioner in criminal proceedings and hence, question of refund does not arise. However, the learned counsel for the respondent-L. R. of JDr. , submitted that in view of the specific order and payment of rs. 1,280/- as cheque amount to the peti tioner, that amount could be adjusted in the execution case as petitioner cannot have double benefit-one under criminal law and another under civil law, and the executing court has rightly ordered for the refund of amount received in excess by petitioner.

(3.) SO, the point for consideration is :