JOGINDER SINGH CHOUDHARY v. CAPITAL AUTO SERVICE, BHOPAL
2003-07-11
S.L.JAIN
body2003
DigiLaw.ai
ORDER S.L. Jain, J. This order shall govern disposal of Misc. Criminal Case Nos. 1596/2003 and 1597/2003 also. All these three petitions have been filed by the applicant invoking extraordinary jurisdiction of this Court u/s 482 of Criminal Procedure Code (hereinafter referred to as the 'Code')- Since the common question of law and facts are involved in these cases, they are being decided analogously. The facts leading to filing of these cases succinctly narrated are thus: A complaint u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act') has been filed by the non-applicant against the applicant and Jagmohan Choudhary, on the allegations that there was business dealing between the non-applicant/complainant and applicant regarding transaction of 'Servo' oil. During business transaction three cheques bearing Nos. 966696, dated 16-11-2000 for Rs. One Lac, 052934, dated 23-11-2000 for Rs. 1,50,000.00 and 656552, dated 21-11-2000, for Rs 10,000,00.00 were issued by the accused persons in favour of non-applicants/complainants. When these cheques were presented to the bank for payment, they were dishonoured. The non-applicants then gave a notice for payment of amount of cheques but the same was not paid. Therefore, three complaints u/s 138 of the Act were filed against accused persons which were registered as R. T. Nos. 3990/2002, 4525/2002 and 4524/2002. When in all the above three complaints the complainants closed their evidence and accused were examined u/s 313 of the Code and the case was closed for defence evidence, the accused Joginder Singh filed an application stating therein that the accused persons have filed a civil suit for recovery of Rs. 1,17,00,000.00 against the non-applicants/complainants and the said suit is pending before Additional District Judge (Special Court), Bhopal, therefore, till the final disposal of the said civil suit further proceedings in the above referred three complaints be stayed. After hearing both the parties, the learned trial Magistrate dismissed the applications filed in all the three complaints. Being aggrieved by the order of the trial Magistrate, the accused/applicant Joginder Singh filed Criminal Revision No. 384/2002 and both the accused persons filed Criminal Revision Nos. 383/2002 and 7/2003 before the Court of Session.
After hearing both the parties, the learned trial Magistrate dismissed the applications filed in all the three complaints. Being aggrieved by the order of the trial Magistrate, the accused/applicant Joginder Singh filed Criminal Revision No. 384/2002 and both the accused persons filed Criminal Revision Nos. 383/2002 and 7/2003 before the Court of Session. After hearing both the parties, the learned Sessions Judge, Bhopal dismissed all the aforesaid revision petitions by a common order, Annexure - 1 holding that proceedings in criminal case can be stayed only in the exercise of inherent jurisdiction of the Court Since the inherent jurisdiction lie only with the High Court, the powers cannot be exercised by a Court subordinate to the High Court. It is against this order that the petitioner Joginder Singh Choudhary has filed three misc. criminal cases as described above. On 2-5-2003, all these three cases were listed for consideration of miscellaneous criminal petitions for grant of stay. However, on that day, on the request of both the parties, Shri S.C. Datt, learned senior counsel appearing for the applicant and Shri N.S. Ruprah learned counsel, appearing for the respondent were heard finally. Shri Datt, learned senior counsel submitted that the orders passed by the Courts below are incorrect, improper and illegal and the same need to be set aside. As against this, the learned counsel, appearing for the non-applicant supported the order impugned. The main thrust of the contentions of Shri S.C. Datt, learned Senior counsel appearing for the applicants is that the questions involved in the criminal complaints and in the civil suit are the same. Both the cases are in relation to the cheques in question, therefore, the decision of the Civil Court would bind the Criminal Court, hence the proceedings in criminal cases should be stayed till the decision of the Civil Court. His submission is that if both the cases are allowed to proceed simultaneously, there is risk of conflict between the decisions of the two Courts. Per contra, Shri N.S. Ruprah, learned counsel, appearing for the non-applicants submitted that the applicants are putting obstructions in the disposal of criminal complaints and adopting dilatory tactics. Only with a view to delay the disposal of the criminal complaints, they have filed application for stay of criminal cases.
Per contra, Shri N.S. Ruprah, learned counsel, appearing for the non-applicants submitted that the applicants are putting obstructions in the disposal of criminal complaints and adopting dilatory tactics. Only with a view to delay the disposal of the criminal complaints, they have filed application for stay of criminal cases. He also submits that after registration of the criminal complaints the accused persons filed miscellaneous criminal cases u/s 482 of the Code with a view to delay and obstruct the process of law. In these miscellaneous cases, before notice to the non-applicants, 5 adjournments were sought. When the notices on admission were issued to the non-applicants and non-applicants appeared in these cases adjournments were sought ten times and ultimately, the petitions were withdrawn. During the pendency of the complaints, a Criminal Revision No. 362/2002 was filed just to delay the proceedings. Subsequently, when the case was closed for final argument, the applicants filed the application for stay of criminal proceedings just to protract the trial of the criminal cases. Having heard learned counsel for the parties and gone through the record of the three cases, I am not inclined to accept the contention of Shri S.C. Datt, learned senior counsel, appearing for the applicants. Once a criminal trial is instituted, it should progress expeditiously so that the guilty are brought to book and the innocent exonerated. Such prosecutions cannot ordinarily be stayed pending the civil suit which are known to take years before they are taken up for hearing and final disposal. This, however, cannot be a universal rule. It would all depend upon the facts of each case and there may be cases where the stay of criminal cases would be justified. In these cases, the evidence is complete and the statements of the accused persons u/s 313 of the Code have also been recorded. The stay, if granted, is likely to frustrate the provisions of section 138 of the Act. If the accused have raised bona fide dispute they are at liberty to establish them by leading evidence whatsoever and ultimately, if they establish their defence, they will be entitled to acquittal, but it is no ground to stay the criminal case. Learned trial Magistrate has rejected the stay applications. Revisions filed by the accused persons were dismissed by the Sessions Judge.
Learned trial Magistrate has rejected the stay applications. Revisions filed by the accused persons were dismissed by the Sessions Judge. The present petitions though levelled as petitions u/s 482 of the Code, are nothing else but the second revisions which is barred u/s 397(3) and 399(3) of the Code. Jurisdiction u/s 482 of the Code cannot be used to circumvent the express bar put by the statute. Section 309 of the Code gives a mandate that every prosecution be held as expeditiously as possible. Therefore, it would be inappropriate to grant stay of the criminal cases especially, in view of the fact that there is no provision under the Code to grant the stay. Since the hearing of the suit is not likely to be taken up in the near future and no prejudice is likely to be caused to the applicants, both the cases may proceed simultaneously. It does not appear to be a case where the criminal proceeding in a private prosecution is being used as a lever to coerce the accused into a compromise of the civil suit. As a general rule, as between civil and criminal proceedings the criminal matter should be given precedence. The public interest demands that the criminal justice should be swift and sure. It should be prompt and effective. In these cases, the civil suits have been filed long after the criminal complaints. The complainant will be obtaining no particular or unfair advantage over the accused persons if the subject matter of the accusation in the criminal trial is gone into independently of and prior to the adjudication in the civil suit. The accusations are also not of such a complicated nature that it can be said that the Civil Court is more peculiarly qualified to adjudicate upon them. The points involved are simple and can satisfactorily be gone into by the trial Magistrate. At the cost of repetition it is mentioned that it would be open to the accused persons to put forward all the matters which would be available to them in the civil suit and probably within the shorter compass and they are at liberty to repeal the accusations against them. In State of Rajasthan Vs.
At the cost of repetition it is mentioned that it would be open to the accused persons to put forward all the matters which would be available to them in the civil suit and probably within the shorter compass and they are at liberty to repeal the accusations against them. In State of Rajasthan Vs. Kalyan Sundaram Cement Industries Ltd. and Others, , relied on by Shri Ruprah, learned counsel for the non-applicants, it has been observed that the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their powers. In my opinion, the approach adopted by the Courts-below is correct and the discretion was properly exercised by them with regard to the interest of justice in refusing to stay the proceedings in criminal cases. There is no sufficient ground on record to stay the criminal case pending the decision in the civil suits filed by the applicants against the complainants as indicated above. All the three petitions are, therefore, dismissed. Let a copy of this order be placed in the records of Misc. Criminal Case Nos. 1596/2003 and 1597/2003. Final Result : Dismissed