Patna High Court
Nandu Babu vs Rajendra Kumar Singh on 21 August, 1969
Equivalent citations: AIR1970PAT382, 1970CRILJ1574, AIR 1970 PATNA 382
ORDER M.P. Verma, J.
1. This petition in revision is directed against an order of Shri G.S. Choubey, Munsif-Magistrate, First Class, Siwan, dated the 19th February, 1969 passed in Case No. C. 459/1968/Tr. 391/69 refusing to stay the criminal case pending in his Court.
2. The short facts of this case are as follows:--
The petitioner is one of the partners of a firm of financiers known as "Ganesh Narain Brij Lal Private Limited" of Calcutta. A 1964 Model Layland truck, bearing registered No. BRP 3962 (subsequently changed to BRD 2962) was taken on hire-parchase agreement by the opposite party, along with some sureties, and the price of the truck was to be paid by instalments. Only some instalments were paid, and the financier company wanted to realise the balance of the instalments, but could not succeed. So, the company brought a suit, being Commercial Cause Suit No. 1277 of 1968, on the original side of the Calcutta High Court. This suit was filed on the 21st May, 1968, after service of a notice dated the 16th May, 1968 on the opposite party, terminating the agreement. A copy of the said notico is annexure "A" to the revision application. In that suit a prayer was made for appointment of a receiver and the Court appointed a receiver on the 4th June, 1968 directing him to take charge of the truck in question. About a little more than two months after, a complaint was filed by the opposite party before the Sub-divisional Magistrate, Siwan, With an allegation that Rs. 800 had been paid to a representative of the company, but no receipt was granted to the opposite party rather representing to him that a proper receipt would be sent from the Head Office at Calcutta. Subsequently, this petitioner also approached the opposite party at Siwan, and, on his demand, the opposite party paid him Rs. 1,000, but without any receipt. This time also an assurance was given that both the receipts, that is, one for Rs. 800 and the other for Rs. 1,000 would be sent to the opposite party by the Head office at Calcutta. When these receipts did not reach the opposite party, he went to Calcutta, and made enquiries. There he came to know that the sum of Rs. 1,000 had been appropriated by this petitioner in his own account and was not deposited in the account of the, company showing payment of the instalment money by the opposite party.
When the opposite party returned from Calcutta, he filed the complaint with these allegations. There was an inquiry into the matter. The learned Sub-divisional Magistrate looked into the inquiry report, and, as there was no protest, he took cognisance and transferred the case to the Munsif-Magistrate where the case is proceeding. When the petitioner was made aware of this case, he appeared in the Court of the Munsif-Magistrate and filed a petition for stay of the criminal proceeding, on the ground that the commercial suit concerning the same subject-matter was pending in the Calcutta High Court and this criminal case had been filed only with a view to harass him and to drag him to Siwan. It was also pointed out to the learned Munsif-Magistrate that the original receiver had been discharged and some official receiver had been appointed in his place by the Calcutta High Court. The learned Munsif-Magistrate rejected the prayer for stay, and hence this revision application has been filed.
3. Mrs. D. Lall, learned Counsel appearing for the petitioner, has argued that the entire subject-matter of dispute has to be thrashed out in the commercial suit, and hence this criminal case should be stayed for the time being. She has drawn my attention to paragraph 13 of the petition filed by the opposite party in the Calcutta High Court against the appointment of receiver. In that paragraph it has been clearly mentioned as follows:--
"13. Your petitioner states that besides the said sum of Rs. 20,700/- your petitioner also made the following payments by cash to the plaintiff which the plaintiff has been denying:
1.
24th June 1968 Rs. 800.00
2. 21st July 1968 Rs. 1000.00 Rs. 1800.00 She has further argued that this matter of payment has to be decided in the commercial suit; and once it is decided in favour of the opposite party, his case would become stronger in the criminal proceeding. On the other hand, if the opposite party fails to sub-stantiate his plea of payment, perhaps, he may not pursue the criminal proceeding. In my opinion, therefore, there appears to be every propriety to stay the criminal proceeding which was filed subsequent to the filing of the commercial suit. The criminal case is not of such a nature or of public importance that it should be given preference to the commercial suit between the same parties and for the same subject-matter. Mrs. Lall further argued that a huge amount of Rupees 1,000/- is alleged to have been paid to the petitioner without auy receipt, which nobody would accept. At this stage I refrain from passing any remark over this alleged payment because that may prejudice either party one way or the other.
On behalf of the opposite party my attention has been drawn to the case of M.S. Sheriff v. State of Madras, AIR 1954 SC 397. My attention has been particularly drawn to the observation of their Lordships in Paragraph 15 of the report where it is said --"As between the civil aud criminal proceedings we are of the opinion that the criminal matters should be given precedence." But I would proceed further and refer to the following observation of their Lordships in the very same paragraph:--
"There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the Civil and Criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment."
In that case the same set of accused persons were being proceeded against civilly as well as criminally. The civil action was for damages for wrongful detention and the criminal case was for wrongful detention. Rut the present case is altogether on a different set of facts. There can be no doubt that the criminal trial should be expedited to decide the matter quickly as the civil suit is likely to take some time. But, as observed by the Supreme Court, there cannot be any hard and fast rule as to which of the two proceedings should be stayed. The facts of each case are to be considered before any order ol stay can be passed. In the present case the matter is concerning payment of Rupees 1,000 without any receipt. That it was a criminal charge under Sections 406, 409 and 420 of the Indian Penal Code has to be made out by the opposite party. In my opinion, this can await till the question of payment of Rs. 1,000 is decided by the competent Civil Court, namely, the original side of the Calcutta High Court in the commercial suit. It is not a case of such a serious nature in which offences like murder, robbery, rape etc., have been committed.
4. On behalf of the petitioner my attention has been drawn to the case of Ram Narain Singh v. Mahatam Singh, 1962 BLJR 839 = (1962 (1) Cri LJ 661), in which the aforementioned Supreme Court case was also considered. iN this case it was observed as follows:--
"In a good many cases, however, where no serious offence is involved, such as in the case of a criminal trespass or defamation, where the matter can be investigated moere (more ?) fully and conclusively in the Civil Court, it may be desirable to stay as a rule the Criminal Proceedings pending the decisions in the Civil Court. While both Courts are equally competent, it is well settled that the decision of the Civil Court is considered to be more thorough apart from the fact that it is conclusive and, in certain contexts, it may be desirable to stay criminal proceedings pending decision in the civil suit, it is still more so where the prosecution is by a private party."
5. On a consideration of the facts and circumstances available on the record, I think, it is expedient in the nature of things to stay the criminal proceeding in question till the same matter is decided by the Calcutta High Court in the commercial suit. No prejudice is going to be caused to the opposite party if the criminal case is stayed.
6. In the result, the revision application succeeds and is allowed and Case No. C. 459/1968--Tr. 391/69, (Rajendra Kumar v. Nandu Babu), pending in the Court of Shri G.S. Choubey, Munsif-Magistrate, Siwan is stayed till the final disposal of Commercial Cause Suit No. 1277 of 1968 (Ganeshnarayan Brijlal Private Limited v. Ranjendra Kumar Singh and others), pending in the Calcutta High Court on its original side.