Calcutta High Court
Apeejay Pvt. Ltd. vs Raghavachari Narasingham And Ors. on 12 July, 1989
Equivalent citations: 1989CRILJ2358
Author: Umesh Chandra Banerjee
Bench: Umesh Chandra Banerjee
ORDER Umesh Chandra Banerjee, J.
1. An interesting question of law as regards the true effect of Article 20, sub-Art. (3) of the Constitution falls for consideration in this application. It is to be noted that one of the fundamental principles of British system of Criminal Jurisprudence is that there is total prohibition as regards the compulsion of self-incrimination. Indian law also provides immunity on the basis of such compelled evidence. The Supreme Court decision in the case of M. P. Sharma v. Satish Chandra lends assistance to the views expressed above. The subsequent decision of the Supreme Court in the case of Delhi Cloth & General Mills Ltd. v. Kushalbhan lays down that even in the case of a departmental enquiry where a criminal proceedings is pending, it would be advisable for the employer to await the decision of the trial Court so that the defence of the employer in the criminal case may not in any way be prejudiced.
2. The decision of the Supreme Court in the case of Tata Oil Mills Co. v. The Workmen observed that it is desirable if the incident giving rise to a charge framed against workman in a domestic enquiry to be tried in a criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. The Supreme Court, however, observed that it would be particularly appropriate to adopt such a course where a charge against a workman is of a grave character, because in such a case it would be unfair to compel workmen to disclose the defence which he may take before the criminal Court.
3. At this juncture, however, a brief recapitulation on the factual aspect would be convenient. On 3rd August, 1988 Police personnel from the Detective Department, Fraud Section, of the Calcutta Police conducted a search and seizure at the residence of the petitioners as well as at their place of business pursuant to complaint lodged by M/s. Apeejay Private Limited under Section 409/34 of the Penal Code. The petition of complaint proceeded on to record that the petitioner No. 1 herein is a stock and share broken Between April 1984 and April 1985, the complainant-Company through its associated companies, viz. Apeejay Medical Research & Welfare Association and Apeejay Educational Association issued 12 several Account Payee cheques and entrusted with the petitioners herein a sum of Rupees One Crore Ninety eight lakhs with instructions to purchase various shares on behalf of Apeejay Pvt. Ltd. The complaint further records that the complainant company was made to understand by the petitioners herein that they had purchased different shares for the complainant company as per direction valued at Rs. 1,97,48,354/-. Out of the shares purchased, 16500 equity shares of Metal Box India Ltd. was sold by the petitioners herein as per instruction of the complainant company and the sale proceeds of Rs. 3,63,000/- was deposited with the complainant company by two different cheques on 18th June, 1985 and 10th September, 1985. Similar instructions were also sent to the petitioners by the complainant company as regards the shares of Good Year India Ltd and the sale proceeds to the extent of Rs. 20,57,627/- were deposited with the complainant company, but the balance amount as against the total sale price of Rs. 34,51,232/-, viz. Rs. 13,93,605/- were not paid by the petitioners till the date of filing of the complaint. The complaint further records that the sale price of the shares of Bata India Ltd. amounting to Rs. 50,000,00/- has also not been deposited or paid by the petitioners to the complainant company. As regards the equity share of EID Parry Ltd. and Mahinder & Mahinder a separate complaint was filed which is discussed hereafter.
4. The complaint noted above dt. 27th June, 1988 under Section 409/34, Penal Code was to the effect that the accused persons have committed criminal breach of trust in respect of the value of the shares aggregating a sum of Rs. 63,93,605/-.
5. The second complaint was in regard to the shares of EID Parry and Mahinder & Mahinder in which it has been stated in the petition of complaint that the petitioners herein committed criminal breach of trust in respect of the value of the shares aggregating a sum of Rs. 71,15,262.00. The search and seizure was pursuant to the abovenoted two complaints - one filed in June and the other in August 1988.
6. Subsequently, however, the petitioner was served with the copy of the notice of motion where from petitioner came to learn that a civil suit has also been filed against the petitioners for specific delivery of the shares of Mahinder & Mahinder along with the appropriate documents as may be required for registration of the shares in the name of the plaintiff together with a prayer for mandatory injunction directing the defendants 1 and 2 to deliver the shares of Mahinder & Mahinder and in the alternative, a decree for Rs. 1,06,00,000/- along with interest, interim interest and interest in judgment. In the civil suit as above the complainant being the plaintiff in this suit has moved an application for the following reliefs:
(a) A Receiver be appointed over all shares in the defendant 3 held or purchased by the defendant 1 and/or the defendant 2 with a direction to take possession of the same wherever the same may be lying;
(b) Mandatory injunction directing the defendants 1 and 2 transfer the said shares to the plaintiff along with the necessary transfer deeds and other papers required for registration of the same in the name of the petitioner;
(c) An injunction restraining the defendants 1 and 2, whether by themselves or their servants or agents or otherwise howsoever from transferring the said shares in the defendant 3 standing in their names or any of them to any person other than the petitioner;
(d) An injunction restraining the respondent 3, whether by itself or its servants and/or agents or otherwise howsoever from recording any transfer of the shares standing in the names of the defendants 1 and/or 2 in the name of any person other than the petitioner;
(e) Ad interim order in terms of prayers above;
(f) Costs of and incidental to this application be paid by the defendants;
(g) Such further or other order or orders be made and/or direction or directions given as to this Hon'ble Court may deem fit and proper.
And your petitioner as in duty bound shall ever pray.
After the service of the notice of motion and the copy of the petition, the petitioners herein have now moved this application inter alia for stay of the suit.
7. Mr. Mitra appearing in support of the application submitted that the petitioners being accused in the criminal case as above have the constitutional right to maintain silence and not to be compelled to be a witness against themselves. Mr. Mitra contended that the suit and the interlocutory application have been filed in order to compel the petitioners to state their defence on affidavits so as to be able to use the same in the pending criminal proceedings as against the petitioners. Mr. Mitra submitted that the right guaranteed under Article 20(3) of the Constitution cannot be taken away by adaptation of a method as in the present case. In support of his contentions Mr. Mitra placed strong reliance apart from the decisions noted above on an unreported decision of this Court in Company application No. 47 of 1975 connected with Company Petition No, 40 of 1973 in Re : Property Company Private Limited v. Khodabad Rustom Irani wherein R.M. Dutt, J. observed:
To my mind, it is the cardinal duty on the part of the Court to prevent a situation, if it can be so avoided, whereby the accused in a pending criminal trial, where identical issues are involved, might have to be punished by imprisonment or fine or both on the basis of a finding in a civil trial although such criminal proceedings have not been brought about at the instance of the accused. If that is allowed by the Courts, it would be a travesty of justice and would be against the fundamental principles of criminal jurisprudence. The accused is presumed to be innocent until his guilt is proved by the prosecution. The onus is entirely on the prosecution to establish the guilt of the accused and he has to establish it without any aid from the accused and without the defence being disclosed to the prosecution.
It is only when the guilt is proved thereby, that the accused is punished by fine or imprisonment or by both. The complaint herein is of a very serious nature. It involves heavy punishment if the issues are decided against the accused in the civil proceedings, the result would be disastrous for the accused.
He would have to undergo imprisonment without the advantage of a criminal trial. To my mind, that was never the intention of the Legislature and no Court of law would be a party to such a procedure, if the same can be avoided. That being so, I make an order in terms of prayers (a) and (c) of the Judges' Summons.
8. Relying upon the decision Mr. Mitra submitted that as a matter of fact, the facts are identical in the matter presently under consideration. The issue is similar to that what is pending before the Criminal Court by reason of the petition of complaint filed by the petitioner. The identical issues would have to be dealt with twice - once by the Civil Court and once by the Criminal Court, - this state of affairs is not permissible in law by reason of the seriousness of the offence charged.
9. Mr. Sarkar on the other hand, however, submitted that the issue raised in this application is to be considered in the light of the doctrine of res judicata. Can it be said - Mr. Sarkar contended that the finding of the Civil Court would have a binding effect on the Criminal Court, - the answer according to Mr. Sarkar is in the negative. The evidentiary value of the judgments will have to be ascertained and in that context certain provisions of the Indian Evidence Act were strongly relied upon by Mr. Sarkar. I am afraid, I am not in a position to accept such a contention as raised by the plaintiff-respondent herein. The law in that regard is well-settled. In this context reference may be made to the decision of the Supreme Court in the case of Karamchand Ganga Prosad v. Union of India , wherein the Supreme Court observed (Para 4):
It is a well-settled principle of law that the decisions of the Civil Courts are binding on the Criminal Courts. The converse is not true.
10. The decision, therefore, in a civil suit will have a binding effect inter se between the parties even before the Criminal Court, but not conversly. Mr. Sarkar submitted that at best the observations of the Supreme Court in Karamchand's case (1971 Cri LJ 1072) can be termed to be an obiter which does not have the same evidentiary value as that of a judgment. Assuming that the observations of the Supreme Court to be so, but it is now well-settled that the obiter dicta of the Supreme Court has also a binding effect on the High Court. At this juncture, however, short recapitulation of facts is needed. The criminal complaint filed in August 1988 under Section 409 read with Section 34 of the Penal Code consists of two counts : the first count deals with the shares of EID Parry Ltd., the second count deals with the shares of Mahinder & Mahinder Ltd., numbering 1,76,000 equity shares valued at Rs. 69,94,013/- for which the civil suit has also been filed. As noted above, specific delivery of the shares has been prayed for, alternatively the money claim has also been made representing the value of the shares. There is, therefore, total identity of the subject-matter and by reason of the position of law as above, it appears that in the event of a decree passed against the petitioners herein, conviction under Section 409 of the Penal Code is almost a certainty. Incidentally it is to be noted that in criminal jurisprudence every person is deemed to be innocent unless contrary is proved. The onus lies, therefore, heavily on the prosecution to prove the complicity of the accused persons, in the absence of which the prosecution will fail. But in the event of a judgment in favour of the plaintiff herein, such a procedural law will be given complete go by which in my view, law Courts ought not to encourage.
11. While it is true that the procedural aspect ought not to outweigh the course of justice, but that by itself cannot give a complete go by to the criminal jurisprudence of the land. This is apart from the issue in regard to the protection as engrafted in the Constitution as noted above. By reason of the finding of the Civil Court, the prosecution would not have to prove or adduce any further evidence which is a complete negation as regards criminal jurisprudence. Would the Court allow such a state and continue with the suit? In my view, to subserve the ends of justice, the answer ought to be in the negative.
12. The other aspect of the matter ought not to be lost sight of, viz., that the criminal proceedings were initiated earlier by the plaintiff against the petitioners herein on the filing of two petitions of complaints - investigation in the matter in issue is in progress under Section 156(3) of the Cr. P.C. and during the pendency of the criminal proceedings, the civil suit has been filed in this Court on the identical set of facts. The contention as regards the difference in cause of action does not really assist Mr. Sarkar. The cause of action might be different but the basis is the same set of facts which, in my view, cannot be permitted to be proceeded with. Trial in regard to an offence under Section 409 cannot be triffled with, since it entails serious consequences including a grave punishment by way of imprisonment. Liberty to the citizens cannot be so casually dealt with. Law provides strict compliance in order to bring home the charge under Section 409 of the Penal Code. Non-compliance of any of the requirement of law would have the consequence of a acquittal but in the event of there being a finding by the Civil Court in favour of the complainant-plaintiff, all such pleas will be rendered nugatory.
13. The Supreme Court in the case of Kusheshwar Dubey v. Bharat Coking Coal Limited after noting the decisions in the case of Delhi Cloth Mills (supra) and Tata Oil Mills (supra) though observed that it is neither possible nor advisable to evolve a hard and fast straight-jacket formula valid for all cases and/or general application without regard to the particularities of the individual situation was, however, of the view that since criminal action and the disciplinary proceedings were grounded upon the same set of facts, the disciplinary proceedings should have been stayed and the High Court was not right in interferring with the trial Court's order of injunction and as such allowed the appeal with cost assessed at Rs. 2,000/-.
13A. The third aspect of the matter rests with expedience. In that event of both the civil and the criminal proceedings arise from the same set of facts, the criminal proceedings should be given all priorites as criminal jurisprudence dictates that the criminal trial ought to be with utmost expedition and the guilty party should be put to books as quickly as possible and within the immediate memory of the public in general. Looking at from the other way round a person may also be innocent and he should be let off immediately and without any delay. In short, criminal justice should be swift and sure. 'It is undesirable to let things slide till memories have grown too dim to trust'. The decision of the Supreme Court in the case of M. S. Sheriff v. State of Madras (supra), lends supports to the view as above.
14. Incidentally it is to be noted that in the event of interlocutory application for appointment of Receiver and injunction is to proceed, the petitioner herein would be required to file an affidavit in the matter, which is equated with the evidence tendered in the matter and that exactly what is forbidden under Article 20, sub-Art. (3) of the Constitution. Whereas, it is the general rule of testimonial compulsion, Article 20(3) is an exception in the event of there being pending criminal proceedings. It is to be noted that even though Article 20(3) does not speak of any criminal proceeding, but it means and implies a criminal proceeding. In this context the observations of P. B. Mukherjee, J. (as he then was) in re : Central Calcutta Bank Ltd., seem to be very apposite (at p. 523 of AIR):
If that be so, then the whole of the law of evidence will have to be scrapped as a result of such an interpretation of the constitutional provision in Article 20(3), Constitution of India, and the entire machinery of law brought to a stand-still. Testimonial compulsion is the very foundation of the law of evidence, for without such compulsion every refusal to give evidence will render administration of justice impossible. If Courts were to depend on volunteers who will choose for themselves whether to give evidence or not, then the entire machinery for discovery of facts on which the very foundation of justice depends will crumble to pieces. Testimonial compulsion, therefore, is not a legal fetish. It is a necessity. Testimonial compulsion is the general rule. The constitutional provision of self-incriminating evidence is an exception designed to defend justice and insure the accused against self-created criminal traps. Legal protection against self-incrimination, therefore, is one of the pillars of liberty of criminal justice in a civilised society. But such liberty should be confined within the limits of its doctrine and not expanded into sentimentality that testimonial compulsion is always a kind of unproclaimed tyranny to be shunned in law. Testimonial compulsion is a necessary obligation of a responsible citizen to aid the machinery of justice and thus help it to discover truth.
Considering the above and since there is total identity of the subject-matter, in the earlier criminal proceeding and the subsequent civil suit, in my view, question of further proceeding in the civil suit does not and cannot arise till after the disposal of criminal matter.
15. In that view of the matter the application succeeds. Let there be an order of stay of Suit No. 747 of 1988 (Apeejay Private Limited v. Raghavachari Narasingham) and all proceedings thereunder till the final disposal of the complaint Case No. 1233 of 1988 and 1488 of 1988 including Park Street Police Station Case No. 455 dt 27th July, 1988. It is, however, made clear that the interim orders passed by this Court, shall however continue until further orders of this Court. Each party to pay and bear its own costs.