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Yelchuri Ranganayakalu Chetty and anr. Vs. K. Gopala Chetty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1361 of 1952
Judge
Reported inAIR1953Mad439; (1953)IMLJ525
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 344 and 561A; Constitution of India - Article 227
AppellantYelchuri Ranganayakalu Chetty and anr.
RespondentK. Gopala Chetty
Appellant AdvocateV. Rajagopalachari and ;P.V. Subramaniam, Advs.;State Prosecutor
Respondent AdvocateV.T. Rangaswamy Ayyangar, Adv.
DispositionPetition dismissed
Cases ReferredRamiah v. Ramiah
Excerpt:
criminal - misappropriation - sections 344 and 561a of criminal procedure code, 1898 and article 227 of constitution of india - petitioner allegedly misappropriated amount of firm in which he was partner - criminal complaint filed against petitioner - other partners filed suit for dissolution of partnership - petition for stay of criminal proceedings on pendency of civil suit - criminal proceedings on pendency of civil suit does not prejudice petitioner - accusations not complicated to hold that civil court more peculiarly qualified to try them - criminal proceedings not to hamper civil suit - complainant has no unfair advantage over petitioner by criminal proceedings - decision in civil suit not to affect criminal proceedings - stay of proceedings renders trial delayed - held, stay of.....orderramaswami, j.1. this is an application for stay of trial of c.c. no. 8277 of 1952 on the file of the 8th presidency magistrate, george town, madras, pending disposal of c. s. no. 158 of 1952 on the file of the high court oh the original side. 2. the facts are: the two petitioners before us y. ranganayakalu chetty and doraisami ay y an gar constituted a partnership along with the respondent k. gopala chetty & k. lakshminarayana chetty and k. satyanarayana chetty under the style and name of sri c. p. v. kotiah chetty and company, carrying on business as commission agents in pulses, coriander, chillies, etc. at no. 21, chinnathambi mudali street, george town, madras. the partnership agreement is dated 25-7-1951. it provides that each of these petitioners is to contribute rs. 25,000/-.....
Judgment:
ORDER

Ramaswami, J.

1. This is an application for stay of trial of C.C. No. 8277 of 1952 on the file of the 8th Presidency Magistrate, George Town, Madras, pending disposal of C. S. No. 158 of 1952 on the file of the High Court oh the original side.

2. The facts are: The two petitioners before us Y. Ranganayakalu Chetty and Doraisami Ay y an gar constituted a partnership along with the respondent K. Gopala Chetty & K. Lakshminarayana Chetty and K. Satyanarayana Chetty under the style and name of Sri C. P. V. Kotiah Chetty and Company, carrying on business as commission agents in pulses, coriander, chillies, etc. at No. 21, Chinnathambi Mudali Street, George Town, Madras. The partnership agreement is dated 25-7-1951. It provides that each of these petitioners is to contribute Rs. 25,000/- and the partners were to share the profits in the following proportion: the first petitioner 0-5-9, the second petitioner 0-5-3, the complainant 0-3-0, Lakshminarayana Chetty 0-4-0 and Satyanarayana 0-2-6, out of a total of 1-4-6. The agreement also provided that no partner shall be at liberty to draw any amount which would reduce at any time the amount to his credit in the firm to less than the amount of the capital subscribed by him. The actual working of the partnership was in the hands of Ranganayakalu Che_tty and Doraisami Ayyangar. The complainant, Lakshminarayana Chetty, and Satyanarayana Chetty were advancing considerable capital. Therefore the complainant and the two others were alone given the power to operate on the bank accounts, to accept cheques etc. for and on behalf of the partnership while Ranganayakalu Chetty and Doraisami Ayyangar had no such right. There was a further stipulation that while the complainant and the two ethers could carry on other businesses apart from the partnership business, the petitioners could not do so.

3. It is in these circumstances that this partnership came to grief in 1952.

4. In regard to this partnership coming to be on the rocks and which has given rise to the criminal complaint and the suit, two opposing versions are given

5. The version of the complainant and the two others is as follows: The petitioners had as between themselves conspired to collect the moneys due to the partnership and misappropriate the same to themselves for their personal use without any justification and in pursuance of the conspiracy the second petitioner left Madras on or about 27-5-1952 taking with him all the bills, etc., and called upon the various constituents to make payments not by cheque but in cash and also intimated to the constituents that the dues to the company should be paid up urgently, and having made these collections kept this complainant in the dark about such collections and even went to the extent of malting it appear that the collections, in some quarters were not made while it subsequently transpired that the moneys had been, in fact collected. The complainant became aware of the fraud practised by the petitioners in collusion with one another on or about 8-6-1953 and started collecting information regarding the misappropriation, whereafter the petitioners wanted to make it appear as if the collection, of about Rs. 65,000/- was to be debited against the personal account of the first petitioner.

The complainant contends that this ruse was entirely an afterthought when the petitioners came to know that the game was up and in fact the first petitioner could not claim to be debited with this large amount inasmuch as they had already overdrawn the moneys considerably from the partnership with ulterior object during 1951 and 1952, and in fact the accounts show that on 3-6-1952 the amounts standing to the credit of the first petitioner was only Rs. 27,120-4-6 while the amount that was standing to the credit of the second petitioner was only Rs. 18857-10-10 while according, to the argument, as stated above, there should be a minimum advance of Rs. 25,000/- against each of the petitioners and so no claim could be set up for debiting the first petitioner with as much as Rs. 65,000/-. The complainant also contends that on the very admissions made by the petitioners they have misappropriated a sum of about Rs. 65,000/- for the personal benefit of the first petitioner in purchasing a house in his own name without bringing the same into the partnership accounts and a clear case of criminal misappropriation had been made out for which he (complainant) has filed a complaint on 14-6-1952.

6. The version of Ranganayakalu Chetty & Doraisami Ayyangar is as follows: The cash balance as per the firm's books for the first week of June 1952 of over Rs. 55,000/- was in the hands of the complainant while a sum of Rs. 15,000/- was in the Banks. There were besides considerable outstandings and stocks on which the firm had made large advances, both amounting to about four lakhs of rupees. A sum of Rs. 60,000/- was collected by the second petitioner in the usual course of business during the latter part of May and beginning of June, 1952 which he handed over to the first petitioner, and a further sum of Rs. 4,000/ had been collected by the first petitioner himself and the entire aggregate sum of Rs. 64,151-6-0 was in the hands of the first petitioner. The complainant was duly informed of the collections by the second petitioner by letter dated 9-6-1952. On or about 19-5-1052 the first petitioner entered into an agreement for the purchase of premises No. 48, Strotten Muthia Mudali Street, Madras, for Rs. 42,000/-. The complainant also competed for the purchase of the said property, but as the first petitioner's offer was higher, the bargain was struck in favour of the first petitioner.

An advance of Rs. 2500/- was paid by the first petitioner for the purchase of the said house from and out of the amounts to his credit in the firm, and the first petitioner, to the knowledge of all the partners, requested the complainant on or about 25-5-1952 to make available the balance of the sum required for the purchase of the property from and out of the firm's cash in his hands and to debit the same to the first petitioner's account. The complainant with ulterior motives failed to do so. On 10-6-1952 the first petitioner wrote to the firm that he had Rs. 64,151-6-0 being the amount collected in his hands and asked that the sum of Rs. 64,000/- out of it be debited to his account, as the chitta books in which entries had to be made had not been sent to him for posting the entries. Thereupon the three other partners including the complainant sent a telegram on 12-6-1952 charging the petitioners with criminal misappropriation of the said amount and imputing to them dishonest motives to which the first petitioner sent a reply telegram the same day repudiating the allegations. The second petitioner also wrote a letter the same day to the other partners sotting out the real position and in view of the hostile and wholly untenable attitude of the other partners in charging him with dishonesty, he gave notice of dissolution of the firm and for settlement of accounts, the partnership being terminable at will,

7. K. Gopala Chetty thereupon filed the complaint on 14-6-1952 & Lakshminarayana Chetty filed a suit for dissolution of partnership on 24-6-1952.

8. The case for Lakshminarayana Chetty for filing the suit is that it had to be filed as the petitioners had intimated a desire to dissolve their partnership and brought the business to a standstill and that the large stocks which had got freezed by this move of the petitioners had to be dealt with and third parties had to be satisfied by the appointment of a Receiver and the business had to be kept going on and wound up normally.

9. It is in these circumstances that the present petition has been filed by Ranganayakalu Chetty and Doraisami Ayyangar for the stay of the criminal trial pending the disposal of the civil suit on the foot that the controversy between them can be adjudicated upon only by looking into the accounts and on ascertainment of the amounts due to these petitioners and that then only it could be stated whether the offences of dishonest misappropriation, etc., have been made out and that the proper forum for disposing of this controversy is the civil Court wherein the civil suit is filed by a partner and not the criminal Court. On the other hand, the contention of the complainant is that the case of misappropriation referred to in the complaint would not form the subject-matter of the civil suit and the criminal complaint which has been filed earlier should not be stayed pending the disposal of the civil suit which may legitimately take some years in the High Court itself, both in the original side and as a regular first appeal, not to speak of the matter going up to the Supreme Court to which it is bound to go up on account of the heavy financial interest involved and that the same acts or omissions may give rise to a tort as well as a criminal offence and that the proper view to take in such cases is that each Court must expeditiously dispose of the matter coming before it.

10. On the allegations the points for consideration are (a) jurisdiction and (b) principles which should guide the stay of criminal proceedings and applicable to the instant case.

11. Section 344, Criminal P. C., authorises, only the postponement or adjournment of criminal cases from time to time and does not contemplate the stay of proceedings for an indefinite period. But a civil Court has an inherent power to stay a case pending on its file where it is necessary for the ends of justice to do so. The power of the High Court in this respect is expressly recognised by Section 561-A, Criminal P. C. The High Court had also, independent of Section 561-A, power under Section 107, Government of India Act, 1915, to stay proceedings in subordinate Courts in the exercise of its powers of superintendence over inferior Courts. But under Section 224, Government of India Act, 1935, which corresponds to Section 107 of the Act of 1915 the High Court was held to have no power to interfere with the judicial orders of the lower Courts: see Sub-section (2) of Section 224 and the two undermentioned cases -- 'Sakkal v. Issurdas', ILR (1941) 2 Cal 366 and--'Jahnabi v. Basudeb', 54 Cal W N 626. Under the Constitution of India, in Art. 227, which is a reproduction of Section 224, Government of India Act, 1935, Sub-section (2) of Section 224 has been omitted. This omission of Sub-section (2) of Section 224 in Article 227 shows that the Constitution of India has restored the power which the High Court had under the Government of India Act of 1915: --'Abdul Rahim v. Abdul Jabbar', 54 Cal W N 445; and --- 'Bimala Prcsad v. State of West Bengal', : AIR1951Cal258 (SB). Therefore we have jurisdiction to stay criminal proceedings.

12. It is often stated that a criminal proceeding should be stayed during the pendency of civil proceeding in respect of the same or substantially the same subject-matter. The type-design arguments on the foot of which this plea is rested invariably have been examined in a decision of this court by Jackson, J. in, --'Gnanasigamani Nadar v. Vedamuthu Nadar', 52 Mad L J 80:

'For instance, to take the argument most usually advanced in these cases, can it be said that where there is a common, issue, it must first be finally decided in the Civil Court before it is examined in the Criminal Court. A Criminal Court is in every way as competent as a Civil Court to examine questions of possession or questions involving the genuineness of documents, and there is no particular reason for giving priority to the Civil Court.

Then can it be said that trials cannot be allowed to proceed simultaneously upon the same issue in different Courts because simultaneity is essentially wrong and one trial either the civil or the criminal must, therefore, be stayed. Simultaneous trials may have their disadvantages, but when in any circumstances the two several Courts must try the same issue, there is no reason to prefer consecutive trials. It is not as though the trial which is taken first would absorb or govern the other. A Criminal Court cannot decline to examine a question of forgery, because the forged document has been admitted as genuine in a Civil Court; it must try the case sooner or later and on the general principle that judicial work should not be retarded the sooner the better.

* * * * * Moreover there is special disadvantage in delaying a Criminal trial.

'A grave charge has been made against a gentleman and it is desirable for his own sake and for everybody concerned that it should be disposed of as quickly as possible, and if the proceedings be postponed, until the final decision of the Civil suit, witnesses may not be available 'Taj-ud-din v. Taj Muhammad Nasir', 69 Ind Cas 380 (2). If delay would avoid conflicting decisions there might be more to be said for it; but it cannot do that. Conflicting decisions are the inherent risk of the division of causes into civil and criminal. The risk is probably much less than the arguments in this type of case might lead one to suppose. Ordinarily the same evidence will result in the same finding and if there are divergent views they ultimately flow in the ordinary course of procedure to the same channel. If the District or High Court has upheld or quashed a criminal conviction, that Court is unlikely to confirm a divergent finding in a civil suit. Nor need it be held that one Subordinate Court will be prejudiced by the opinion of the other. Apart from the fact that Judges may be trusted to be masters of their own minds; the Criminal and Civil Courts are never trying precisely the same issue. In the Criminal Court guilt must be established beyond all possibility of doubt, but the Civil Court weighs probability. An acquittal of forgery in a Criminal Court does not mean that the party will necessarily succeed in the Civil Court--the authenticity of the document may still be doubtful; and if evidence is conclusive enough for conviction in the Criminal Court, apart from any question of prejudice there must be every likelihood that the accused will be unsuited in the Civil Court. And anyhow if a case is delayed, since the Court is not relieved from the ultimate duty of trying it, what danger there may be of conflicting decisions and prejudice is a factor in consecutive as well as in simultaneous trials.

It is sometimes argued that if the trials are consecutive at least the parties are not hampered by having to conduct two causes at the same time. This is a question of fact and is chiefly relevant to those cases where the accused in the criminal is defendant in the Civil Court. In the present case where accused himself has elected to institute civil proceedings subsequent to the criminal complaint he can hardly claim that his resources are unduly strained. And even where the accused is also defendant the harassment must be actual and something more than inconvenience.

* * * * * That it must be fought out is inevitable, and it must be fought out in both Courts. If the civil case is stayed pending the criminal case, it will have practically the same result as staying neither case; for ordinarily the criminal case will be finally concluded in three to six months, and the civil case in three to six years; so that delaying the civil case will have little effect and, in my opinion, will do no good. If the criminal case is stayed pending the civil case, then, as pointed out above a person presumably innocent, is left for years with a criminal case hanging over him; and if ultimately proved to be guilty he will have successfully stayed off his well-merited punishment for an equal period. In either view the stay of the criminal proceeding is objectionable. Therefore the less undesirable course is to adhere to the main principle and to let both cases proceed with all possible dispatch.

It is sometimes argued that one or other proceeding is an abuse of justice, that the complainant has filed the criminal case in order to overawe his civil antagonist; or that the latter has filed the civil case to hamper the former. There may be cases in which such motives are clearly apparent, but ordinarily speaking Courts should be chary of imputing wrongful motives for rightful actions. If the law allows a legal process, it should not be condemned as unjust.'

There is, therefore, now a consensus of judicial opinion that there is no invariable rule that a criminal proceeding should be stayed pending the issue of a civil suit, but that the matter is entirely one of discretion of the Court to be exercised having regard to the merits and all the circumstances of the case, the only general rule that can be adumbrated being that every Court should be left as far as possible to dispose of the case on its file with the utmost expedition and the only general assumption that can be made is that in either Court justice will be done -- per Jackson, J. in -- 'C. Ramiah v. N. Ramiah', 50 Mad 839: -- Magannath Acharya v. Rajagopalachari', : AIR1931Pat411 ; -- 'Rewatmal Udhomal v. Sajanmul Mehrumal', AIR 1934 Sind 143; -- 'Kanhai Lal v. Baij Nath Mahesri', . There is no hard and fast rule in this matter. The Court should consider the circumstances of each particular case and decide on grounds of justice and expediency whether it is proper that the criminal proceedings should be stayed or that the civil proceedings should be stayed or that both should be allowed to take their course -- per Broom field, J. in -- 'Dias v. Mahadev', 35 Born L R 1054. In exercising the discretion in the matter of stay the following ten principles deducible from the plentiful and not always reconcilable case-law on the subject may be borne in mind and for which compilation I must here acknowledge my, indebtedness to Chitaley & Annaji Rao's encyclopaedic, upto date, and accurate excellent commentary on the Criminal Procedure Code, 4th Edition, at page 1920 and following.

(i) Is the accused likely to be prejudiced if the criminal proceeding is not stayed until the disposal of the suit? I have already dealt with the general type-design objections which are put forward and the observations of Jackson, J. in regard thereto. Therefore, the kind of prejudice which we have to consider is the particular prejudice in certain types of cases where the non-stay of criminal proceedings would be hurtful to the accused. The following are some of the instances. In -- 'Sankarayya v. Kerala Subba Aiya', 2 Weir 260 it was held that where there, was a complaint of forgery of document and the question of genuineness of this document was pending in a civil court, criminal proceedings should be stayed. In --'Anna Ayyar v. Emperor', 30 Mad 226 petitioners 2 to 4 filed under Section 77, Registration Act, a civil suit for the registration of a will alleged to have been made by their sister S and written by petitioner 6 and attested by Nos. 7 to 9. While the suit was pending the counter-petitioner without obtaining sanction preferred a complaint before the Magistrate against the petitioners alleging that they had forged the said will of S. Petitioners applied to the Magistrate to stay proceedings in the criminal case until the civil suit should be decided. The High Court in these circumstances directed that the criminal proceedings be stayed pending the trials of the suit.

In -- 'Md. Ibrahirn v. Kattayyan', AIR 1916 Mad 1123 the facts were: There was refusal, to register a document alleged to be forged. There was a suit to compel registration. There was a criminal trial for forgery. The High Court held that the criminal trial must be stayed pending disposal of the civil suit to compel registration. In -- 'Jhummaklal v. Sunderlal', AIR 1932 Nag 86, where the very constitution of committee' of trustees which authorised a particular individual, from amongst them to lodge on its behalf a criminal complaint against the manager of the trust property was challenged as invalid in a previously instituted suit, held, the criminal trial should be stayed pending decision of civil suit. In -- 'Khobhari Rai v. Bhagwat Rai', AIR 1917 Pat 621 there was a suit in regard to property and there xvas a charge of theft of such property. It was held that the criminal case should be stayed. In -- 'Debi Mahto v. Emperor'. Am. 1916 Pat 7 proceedings were instituted as a result of an order under Section 476, Criminal P. C. This order was appealed against. It was held that the criminal Court proceedings should be stayed pending appeal. These cases are not exhaustive but only afford illustrations of the particular prejudice that might be caused to the accused necessitating stay of criminal proceedings.

(ii) Is the matter in issue of such a complicated kind for the decision of which civil Courts are preferred as peculiarly qualified as, for example, the genuineness of a will or other document, the validity of a will, the 'bona fides' of the civil claim, and the examination of complicated accounts; but even here it cannot be assumed that there will be a manifest and irreparable injustice done in the criminal Court when the integrity of that Court is not questioned. It is in this connection that reliance is placed by the learned advocate for the petitioners before me on the decision of -- 'Dias v. Mahadev', referred to above. In this decision it was pointed out that some cases are obviously more suitable for determination by a civil Court and that for instance it is not uncommon in Bombay for complaints of breach of trust by one partner against another and that such cases often involve the examination of complicated accounts for which the civil Courts have better means at their disposal than criminal Courts and that indeed it may often be impossible to say whether any criminal offence has been committed until the accounts of the partnership had been taken and the civil rights of the parties had been determined.

The learned Judge Broomfield, J. referred to in this connection to -- 'Emperor v. Jagannath Raghunath Das', 33 Bom L R 1518. But the learned Judge was careful to add that there is no hard and fast rule in this matter and the Court has to consider the circumstances of each particular case and decide on grounds of justice and expediency whether it is proper that the criminal proceedings should be stayed. In fact he has laid down other circumstances where by weight of the same the mere fact that a civil case of this nature is pending is not by itself a sufficient ground for staying criminal proceedings.

(iii) Is the criminal proceeding instituted with the motive of hampering the conduct of the civil proceeding? Because, if it is so the criminal proceeding may be ordered to be stayed: -- 'Jehangir v. Framji', 29 Cri L J 1053: 112 Ind Cas 477; -- 'Anna Ayyar v. Emperor', 30 Mad 226: -- 'In re Subramanya Chetty', 2 Weir 415; -- 'in re Ramchandra Babaji', : AIR1933Bom307 . This, however, will not apply in the case of public prosecutions such as prosecutions under Section 195 or Section 476. Criminal P. C. These principles are embodied in -- 'Gopal Chandra v. Suresh Chandra : AIR1929Cal563 ; --- 'Dwarka Nath Rai v. Emperor', 31 Cal 858; -- 'Anrudh Kumar v. Emperor', 65 Ind Cas 436 (All) and -- 'In re Keshav Narayan', 17 Ind Cas 720.

(iv) Is the civil proceeding filed for the purpose of delaying or the conduct of which would result in a long delay of the trial of the criminal case? If the answer is that criminal litigation has been started to prejudice civil litigation then a stay should be granted -- ('In re Ramachandra Babaji', : AIR1933Bom307 ) and the answer is that the conduct of the suit would result in long delay of the criminal trial naturally no stay should be granted. The latter ratio was laid down by Jackson J., in -- 'C, Ramiah v. N. Ramiah', 50 Mad 839, who cites with approval a Patna ruling that it is the policy of the law to go on immediately with the enquiry: -- 'Ramsaran Singh v. Nikhad Narain Singh', : AIR1925Pat619 founded on -- 'Sheikh Bahatar v. Nobadali', : AIR1924Cal634 . See also -- 'Emperor v. Dinal Shah Rajanshah', AIR 1933 Sind 358. Broomfield, J. in -- 'Dias v. Mahadev', 35 Bom L R 1054 has pointed out that the point that civil proceedings normally take longer than criminal and it is not difficult to find the means of delaying a decision is one of the matters to be borne in mind in deciding whether the ends of justice require that criminal proceedings should be stayed, echoing as it were the observations of Jackson, J., in -- 'Gnanasigamani Nadar v. Vedamuthu Nadar', 52 Mad L J 80. Thus in --'Pedda Balliah v. Venkatasami', AIR 1914 Mad 143, in view of the suit being a summary one and which on the normal course would get disposed of without delay criminal proceedings were stayed.

(v) Has the Civil suit been filed 'before' the institution of the criminal proceedings and does it appear that the decision in the former will be of value in arriving at the truth in the criminal case? Thus in -- 'Thakorlal Vadilal v. Ambalal Bhikabhi', AIR 1942 Bom 330 a criminal complaint was filed during the pendency of the civil suit between the parties alleging criminal trespass and wrongful restraint in relation to a portion of the suit property by one of the parties to the suit, and it was held that the criminal trial should be stayed pending hearing of the suit. In -- 'Molhu Rai v. Emperor', : AIR1937Pat8 , a civil suit was based on a hand-note and the defendant alleged that the hand-note was the outcome of fraud on him and the defendant filed a complaint against the plaintiff and the plaintiff applied for stay of criminal proceedings till the decision of his prior civil suit. Held, stay should be granted. In -- 'Faiz Muhammad v. Abbas Jafferali', AIR 1935 Sind 187, where disputes in criminal proceeding and civil suit were intimately connected and the civil suit was prior in time and common issues were capable of being decided more properly in civil suit, held, criminal case should be stayed.

(vi) Has a civil suit been filed 'after' the criminal case and is there a possibility of its being decided soon? Because, if it were not so, a stay should not ordinarily be granted. It has been held in -- 'Basheshar Nath v. Ratan Chand', AIR 1933 Lab 37, and later in --'Chhanno Prasad Singh v. Sakhichand Sahu', : AIR1942Pat45 that where a civil suit is likely to be delayed the Magistrate is justified in holding that all the prosecution evidence should be recorded before the question of staying the criminal case can be considered. If the law allows a legal process it should not be condemned as unjust. Where the accused chooses to file a civil suit during the pendency of a criminal action against him he should not be denied that right. His action only becomes Questionable when he tries by virtue of the suit to set up other rights to which he is not entitled: -- 'Gnanasigamani Nadar v. Vedamuthu Nadar', 52 Mad L J 80.

(vii) Does the criminal prosecution in any way arise out of the civil suit and would the decision in the civil Court necessary affect the decision in the criminal Court?: -- 'Mathura Kunwar v. Durga Kumvar', 2 All L J 747: 2 Cri L J 793. Otherwise, it would be unreasonable and speculative to order stay of proceedings in the criminal Court. In -- 'U. Tha Zan v. U Pyant', AIR 1935 Rang 487. It was rightly pointed out that it is no doubt undesirable that a criminal prosecution connected with a civil suit should be proceeded with until the civil suit is decided; but such cases are usually those where the criminal prosecutions arise directly out of the proceedings of the civil Court such as for instance the prosecutions for perjury or forgery in relation to documents put in evidence in the civil Court. It would, therefore, be unreasonable and speculative to order stay of proceedings in the criminal Court on the off-chance that there might be some decision in the civil Court which might have some bearing on the criminal prosecution; see -- 'Mt. Sudeshara v. Emperor : AIR1933All818 ; --'Molhu Rai v. Emperor', : AIR1937Pat8 and -- 'Palani Goundan v. Emperor', 1937 Mad W N 21.

(viii) Are the parties and points for decision in the criminal and civil cases identical? If they have no such identity stay will not be granted: -- 'Jodhi Singh v. Emperor', AIR 1021 Pat 484; -- 'Taj-ud-din v. Tajmuhammad', and -- 'Mansharam v. Chetanram', AIR . 1945 Sind 32; -- 'Madanlal Brijulal v. Emperor', AIR 1934 Pat 113; -- 'Motiram Jasmal v. Emperor', AIR 1943 Sind 10; -- 'Panna Lal v. Emperor : AIR1943All14 .

(ix) Is it a case of disputed title to land where it is difficult to draw a line between a 'bona fide' claim and a criminal trespass? In, such a case stay would be granted. The judgment of a civil Court on the other hand on actions in 'personam' is not relevant to the same issue in a criminal Court and hence there is no justification for staying a criminal case pending the decision of the civil Courts: --'B. N. Kashyap v. Emperor', AIR 1945 Lah 23.

(x) Wherein does the public interest lie and not merely the supposed interest of the particular complainant? In considering this aspect of the matter we have to take into consideration of the foregoing factors and we must not merely regard the matter as a sort of competition between the civil and the criminal Courts: -- 'Thakorlal Vadilal v. Ambalal Bhikabhi'.

13. Now applying these principles to the; instant case we find that no case has been made out for staying the criminal proceedings pending disposal of the suit which has been subsequently filed by one of the partners. It cannot be stated for the reasons mentioned in --'Gnanasigamani Nadar v. Vedamuthu Nadar', 52 Mad L J 80 that any prejudice would be caused to the accused in this case if the criminal trial is proceeded with. It will be open to these accused to put forward all the matters which would be open to them in the civil suit and probably within a shorter compass and repel the accusations against them. The complainant will be obtaining no particular or unfair advantage over the accused persons if the subject-matter of the accusations in the criminal trial is gone into independently of and prior to the adjudication in the suit. The accusations are not of such a complicated kind that it can be stated that a civil Court is more peculiarly qualified to adjudicate upon them. The points involved are simple and can be satisfactorily disposed of by the Presidency Magistrate. This criminal proceeding has not been instituted with the motive of hampering the conduct of the civil proceeding. On the other hand, if the criminal proceeding is stayed it would result in a long delay of the trial of the criminal case, which would not be even in the interests of the accused as pointed out by Jackson, J. in -- 'Gnanasigamani Nadar v. Vedamulhu Nadar'. 52 Mad L J 80. and --'Ramiah v. Ramiah', 50 Mad 839. The civil suit has been filed not before but after the criminal case. It cannot be stated that the criminal prosecution in this case arises out of the civil suit and the decision of the civil Court will necessarily affect the decision of the criminal Court. In any event the decision of the civil Court will not constitute 'res judicata' and the criminal Court will have to independently investigate the accusation material against the accused.

In the civil suit the issues involved are not identical with those arising in the criminal case. The criminal case is confined to the question of criminal misappropriation. Public interests require that criminal Court proceedings should be expeditiously disposed of and I need not add that the spectacle of a criminal trial pending for years till the civil suit has undergone the weary waiting period of 3 years in the original side of the High Court and then a period of three years in appeal and then another appeal in the Supreme Court, involving another 3 or 4 years, is not calculated to raise public morale in the efficacy and efficiency of the administration of justice.

14. In these circumstances there are no good grounds for granting stay of the criminal proceedings asked for and this petition is dismissed.


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