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1995 DIGILAW 184 (CAL)

Mohsen Ali v. Mirza Habibullah Khaleel

1995-05-19

Arun Kumar Dutta

body1995
JUDGMENT Arun Kumar Dutta, J.: By this Revisional Application under s. 401, read with s. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code), the petitioner-accused (hereinafter referred to as accused) has prayed the Court for quashing of the charge framed by the Learned Metropolitan Magistrate, 7th Court, Calcutta against him (accused) by order dated 19.4.93 in Case No. C/1684 of 1987 before him (Magistrate) on the grounds made out therein. 2. Upon hearing the submissions of the Learned Advocates for both sides and perusal of the materials on record, it appears that the Complainant Mirza Habibullah Khaleel in his capacity as the Managing Partner of M/s. M.M.K. Shirazi and Sons, a Partnership Firm carrying on business in tea, including exports thereof, had filed the relevant petition of complaint on 11th September, 1987 before the court below against the accused for the alleged offences punishable under Ss. 408/409/465/467/471/477A, IPC for having allegedly committed fraud, forgery, criminal breach of trust, falsification of accounts and misappropriation of a large sum of money by encashing a number of Cheques mentioned therein. It further appears that the aforesaid Partnership Firm M/s. M.M.K. Shirazi & Sons had as well filed a Civil Suit before this Court, being Suit No. 549 of 1987, on 6th July, 1987 against the accused, prior to the filing of the aforesaid Complaint Case, praying for, amongst other reliefs, a decree for Rs. 11,20,539.96 paise on the allegation that the defendant (accused) had defrauded the plaintiff an had mis-appropriated the sum of Rs. 5,15,531.20 paise only in respect of the Cheques mentioned in paragraph 10 of the plaint, copy of which has been annexed to the Supplementary Affidavit filed by the Petitioner. The Cheques, the proceeds of which are stated in the plaint to have been misappropriated, seem to tally with the Cheques mentioned in the aforesaid Petition of Complaint filed by the complainant before the court below. 3. Upon perusal of the materials on record it appears that the Learned Magistrate concerned, upon' hearing both sides at length and careful perusal of the materials on record, was satisfied that there are sufficient materials to frame charge against the accused for the alleged offences punishable under Ss. 408/409, 465/472 and 477A IPC, and had accordingly framed charges against him therefor by passing the impugned order dated 19.4.93 and had also fixed the case for evidence. 408/409, 465/472 and 477A IPC, and had accordingly framed charges against him therefor by passing the impugned order dated 19.4.93 and had also fixed the case for evidence. Having regard to the materials on record, such as they are, there seems little ground for quashing of the charges framed by the Learned Magistrate by his aforesaid impugned order for the reasons recorded therein. It is not for this Court in this Revisional Application to enter-into the facts and prejudge the merits of the matter at this stage. The aforesaid impugned order dated 19.4.93, as 'it is, does neither seem to suffer from any incorrectness, illegality or impropriety calling for interference by this Court in exercise of its revisional jurisdiction. The Revisional Application is accordingly liable to fail. 4. Realising the difficulty somewhat tardily, the Learned Advocate for the Petitioner had submitted at the close of the hearing that the relevant Criminal Proceedings may be stayed till the disposal of the aforesaid civil suit pending before this Court. The Learned Advocate for the petitioner had referred to the decisions in Ashru Bindu Roy vs. Chittaranjan Baneriee & Anr. 82 CWN 358; Misri Lal vs. Tota Ram, 1984 Cr.L.J. 1338 and Ashok Kr. Jaiswal vs. The State, 1989 (1) CHN 458 in support of his contention that the civil suit instituted earlier before this Court should be given preference over the trial of the criminal case before the Court below in respect of the same subject matter, the pith and substance of which are almost the same. 5. As against the aforesaid decisions, the Learned Advocate for the Opposite Party-Complainant has refereed to the decision of the Supreme Court in M.S. Sheriff & Anr. vs. State of Madras & Ors., AIR 1954 SC 397 , to contend that as between the civil and criminal proceedings, the criminal matters should be given precedence. 6. The Supreme Court in the aforesaid decision held that as between the civil and criminal proceedings the criminal matters should be given preference. The possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. The only relevant consideration is the likelihood of embarrassment. Another factor which weighs with the Court is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The only relevant consideration is the likelihood of embarrassment. Another factor which weighs with the Court is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as 'is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. 7. The Supreme Court has therefore clearly held in the aforesaid decision that no hard and fast rule can be laid down and in that particular case the view was taken that the Civil Suit should be stayed till the Criminal Proceedings were concluded. Their Lordships had pointed out that the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration but the likelihood of embarrassment is. Therefore, it is by no means correct to say that any general proposition was laid down by the Supreme Court that the Civil Suit should make way for the criminal case, and this question can only be decided on the facts and circumstances of a given case. It would be pertinent to refer to certain decisions of this Court and some other Courts in connection with the aforesaid point in this context. 8. Jenkins, C.L.J., of this Court in a Division Bench Case in J.M. Loocus vs. Official Assignee, 24 CWN 418 had held that "thought no universal rule can be laid down it is ordinarily undesirable to institute criminal proceedings until determination of civil proceedings in which the same issues are involved. It is too well known to need elaboration that criminal proceedings J lend themselves to the unscrupulous application for improper pressure with a view to influencing the course of the civil proceedings." 9. Bucklay, J., had also held in the case of Thames Launches Limited vs. The Corporation of Trinity House. It is too well known to need elaboration that criminal proceedings J lend themselves to the unscrupulous application for improper pressure with a view to influencing the course of the civil proceedings." 9. Bucklay, J., had also held in the case of Thames Launches Limited vs. The Corporation of Trinity House. 1961 (1) AER 26 that in matters involving substantially the same issues, raised in Civil Suit and at a later stage in Criminal Proceedings in an inferior Court between the parties, the Court should look at the substance of the matter and could restrain the Prosecutor in the Criminal Proceedings from continuing them until the Civil Proceedings had been decided, if the Court is satisfied that allowing a Criminal Proceedings to be proceeded with pending decision of the Civil Proceedings would be vexatious. It had also been observed therein that in our Country unfortunately sometimes improper pressure is sought to be put through unscrupullous application of criminal proceedings. 10. A Division Bench of our High Court in the case of Joynarayan Misra vs. The State and Ors., 1966 Cr.L.J. 207 had as well stayed criminal proceedings till the decision of the civil suit for the reasons discussed therein. The Patna High Court in Nandu Babu vs. Rajendra Kr. Singh, 1970 Cr.L.J. 1574 had also stayed the criminal proceedings pending disposal of the Civil Suit almost on similar allegations for similar reasons. The Supreme Court in Balak Bramhachary's Case, AIR 1974 SC 290 while dismissing an appeal by special leave against an appellate order of acquittal had also observed that it was not possible to fasten criminal liability in respect of seven properties beyond reasonable doubt before the right and title to such property was established by means of a Civil Suit. 11. Upon consideration of the aforesaid decisions, along with others, a learned Single Judge of this Court in Ashru Bindu Roy vs. Chittaranjan Banerjee & Anr. 82 CWN 358 had held that the relevant Civil Suit instituted earlier should be given preference over the trial of the Criminal case 'in respect of the same subject matter. The learned Judge had added that by neglecting to proceed with the Civil Suit and by threatening to proceed with the criminal case, and that too after a great length of time seems to be unfair although permissible under the law. The learned Judge had added that by neglecting to proceed with the Civil Suit and by threatening to proceed with the criminal case, and that too after a great length of time seems to be unfair although permissible under the law. The learned Judge had further observed that the decisions mentioned also support such a course specially in view of the earlier civil suit 'in a superior court when the advantages of a prompt criminal trial are already gone after lapse of years from the point of time when the complainant first came to know about the incident. A learned Single Judge of Delhi High Court had also taken almost a similar view in Misri Lal vs. Tota Ram, 1984 Cr.L.J. 1338 holding that where a civil litigation is pending on the basis of the material on which a criminal complaint was based and some of the features of the case tend to point to the falsity of the charge while the others point to the contrary, the proceedings can be quashed on the condition that the complainant would be entitled to seek their revival on the conclusion of the civil proceedings and he would also have liberty to initiate fresh proceedings if the cause of action for it survive the decision of the civil court both directly or through the intervention of the civil court. 12. Another learned Single Judge of this Court in Ashoke Kr. Jaiswal vs. The State, 1989 (1) CHN 458 had also held that it is by no means correct to say that any general proposition was laid down by the Supreme Court in M. S. Sheriff's case (supra) that the Civil Suit should make way for thy Criminal Case and that question can only be decided on the facts and circumstances of a given case. The learned Judge had found in the relevant case that the dispute between the parties was essentially of a civil nature and in such circumstances the dispute had to be settled before any question of criminal liability can be satisfactorily adjudicated upon. It was thus held that there cannot be any finding regarding the criminal liability of the petitioners before the question of title to the subject matter in dispute is decided by a Civil Court which is already in seisin of the matter. 13. It was thus held that there cannot be any finding regarding the criminal liability of the petitioners before the question of title to the subject matter in dispute is decided by a Civil Court which is already in seisin of the matter. 13. As already noted above, the relevant petition of complaint in the relevant case before us had been filed by the complainant before the Chief Metropolitan Magistrate, Calcutta, on 11th September 1987. The relevant Civil Suit, on almost the same facts, had been filed before this Court, being Suit No. 549 of 1987, on 6th July 1987, which is earlier in point of time than the aforesaid criminal proceedings. The Plaintiff, in paragraph 3 of the Plaint in the said Suit, had stated that the Managing Partner of the Plaintiff Firm had to leave India in 1980. Due to compelling reasons it was not possible for any of the partners to be in India, during the period between 1980 and 1983. The Managing Partner of the Plaintiff Firm returned to India in 1984. Even so, the relevant petition of complaint in respect of the alleged offence allegedly committed by the accused during the period from 23.12.1980 to 19.11.1981 had been filed by the complainant before the aforesaid Criminal Court only on 11th September 1987, after waiting for about three years after the return of the Managing Partner to India in 1984. The delay in filing the petition of complaint does neither appear to have been explained by the opposite party herein. And, for the reasons already indicated above and the series of decisions referred to above, the relevant criminal proceedings before the inferior court should remain stayed till the disposal of the earlier Civil Suit filed by the plaintiff before this Court. More particularly in view of the fact that in the relevant criminal case there could not be any finding regarding the alleged criminal liability of the petitioner before the aforesaid Civil Suit, on the same facts, is decided by this Court, which is already in seisin of the matter. If the relevant criminal case is allowed to proceed and ends either in conviction or in acquittal it might also be embarrassing to take proper decision in the Civil Suit on the evidence which may be adduced before the Court. If the relevant criminal case is allowed to proceed and ends either in conviction or in acquittal it might also be embarrassing to take proper decision in the Civil Suit on the evidence which may be adduced before the Court. On the other hand, if the Criminal Case is stayed and the Civil Suit is allowed to proceed, the decree in the Civil Suit would not in any way cause any embarrassment to the Criminal Court. In such circumstances, the relevant Criminal Proceedings before the lower Court should remain stayed till the disposal of the relevant Civil Suit filed earlier before this Court. 14. Upon the discussions above, I would feel inclined to allow the petitioner's belated prayed for stay of the relevant Criminal Proceedings till the disposal of the relevant Civil Suit pending before this Court. Let, therefore, the relevant Criminal Proceedings, being Case No. C/1684 of 1987 pending before the learned Metropolitan Magistrate, 7th Court at Calcutta, remain stayed till the disposal of the relevant Civil Suit, being Suit No. 549 of 1987 pending before this Court. The revisional application be accordingly disposed of. Let a copy of this order be forthwith sent down to the Court below. Application dismissed subject to stay of the impugned criminal proceeding till disposal of the earlier civil suit.