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Srikisson Beriwalla and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1935Cal182,159Ind.Cas.964
AppellantSrikisson Beriwalla and anr.
RespondentEmperor
Cases ReferredJ.M. Lucas v. Official Assignee of Bengal
Excerpt:
- .....of calcutta should not be quashed or in the alternative stayed until the disposal of the two civil suits pending in the original side of this court. a brief history of the circumstances which gave rise to the present proceedings may be relevant. it appears that there were two brothers, bissessurlal and matilal of whom the latter predeceased the former. subsequently bissessurlal died leaving a will in which he appointed certain persons including the present two petitioners as executors and made various legacies. in 1927 madan mohini, the widow of matilal, filed a suit no. 2336 of 1927 in the high court against the executors alleging that the two brothers matilal and bissessurlal had separate estates. in 1928 shamsundar, the adopted son of bissessurlal filed a suit, being suit no......
Judgment:

S.K. Ghose, J.

1. In this Rule the question is whether the criminal proceedings under Ss 409 and 114, I.P.C., pending against the petitioners in the Court of the Chief Presidency Magistrate of Calcutta should not be quashed or in the alternative stayed until the disposal of the two civil suits pending in the Original Side of this Court. A brief history of the circumstances which gave rise to the present proceedings may be relevant. It appears that there were two brothers, Bissessurlal and Matilal of whom the latter predeceased the former. Subsequently Bissessurlal died leaving a Will in which he appointed certain persons including the present two petitioners as executors and made various legacies. In 1927 Madan Mohini, the widow of Matilal, filed a suit No. 2336 of 1927 in the High Court against the executors alleging that the two brothers Matilal and Bissessurlal had separate estates. In 1928 Shamsundar, the adopted son of Bissessurlal filed a suit, being Suit No. 236 of 1928, against the petitioner No. 1 and Madan Mohini claiming a declaration that the Will was void. Subsequently on 23rd April 1929 there was a consent decree passed in both the suits. As a result of this decree a portion of the estate was allotted to charities through the petitioner No. 1 as trustees with power to appoint other trustee. It next appears that one K.A. Desai who was manager of one of the trust properties in the Punjab was dismissed by the petitioner No. 1. Thereupon Desai started various proceedings which were at first unsuccessful. In September 1933 he filed a complaint in the Court of a Magistrate in the Punjab making certain allegations against the petitioners. This complaint was eventually referred by the Punjab police to the Calcutta Police where the head office of the trust is situate. As a result of the investigation held by the Calcutta police on 23rd August 1934 a challan was submitted against the petitioners under Sections 409 and 114, I.P. C, in respect of various monies belonging to the estate of Bissessurlal deceased. Meanwhile in 1933 Desai filed a suit against the petitioners and others under Section 3, Charitable Trust Act, and this suit is still pending. In August of the same year Desai filed another suit against the petitioners and others for accounts and other reliefs. Then in 1934 certain persons with the sanction of the Advocate General of Bengal filed a suit being suit No. 47 of 1934 against the petitioners and others for accounts, removal of trustees, and other reliefs. In the same year Desai filed an application to be added as a party to suit No. 47 of 1934. On 19tb April 1934 another suit being suit No. 737 of 1934 was instituted by Shamsundar against the petitioners and Madan Mohini for setting aside the consent decree referred to above. These suits are now pending.

2. The question in this Rule, as I have stated above, is whether in the circumstances it is expedient that the criminal prosecution of the petitioners should be proceeded with. The Magistrate in his explanation simply states that:

It is not known by me whether any connected civil suits are pending in the Original Side of the High Court.

3. The Rule however is opposed on behalf of the Crown. Mr. Khundkar has pointed out to us that the plaint in suit No. 47 of 1934 is vague in its allegations and it does not specifically mention the various sums which are stated in the challan of the criminal case and that only general allegations of misappropriation are made in the plaint. It is also contended that since this prosecution is launched by the police at d not by a private party it ought to have precedence over the civil litigations. In support of this argument reliance is placed on Gopal Chandra v. Suresh Chandra 1929 Cal 563, Jehangir Pestonji Wadia v. Framji Rustomji Wadia (1928) 112 IC 477 and Chitrala Ramiah v. Natu Kula Ramiah 1927 Mad 778. Undoubtedly the fact that it is a public prosecution and not a private one is a matter which has to be considered. But that only goes to show that the prosecution may be conducted in good faith and it does not carry us much further than that. On the other hand the important question is whether the issues in the criminal case are likely to be included in the issues in the civil suit and whether in that case there is risk of a conflict of jurisdiction, as was remarked by Sir Lawrence Jenkins in J.M. Lucas v. Official Assignee of Bengal 1920 Cal 624. It is ordinarily undesirable to institute criminal proceedings until determination of civil proceedings in which the same issues are involved. Apart from the question of improper pressure in a case of this sort, there is the risk that in the criminal proceedings there may be an imperfect appreciation of the facts which would be subjected to a more searching investigation in the civil suit. No doubt as Mr. Khundkar has pointed out the allegations in the plaint are vague and it is also alleged that the plaintiffs are unable to furnish full particulars before obtaining discovery and inspection of the documents. But it is quite clear that the items, on which criminal charges are sought to be based, appertain to the estate of the deceased, Bissessurlal which is also the subject matter of the suit. Indeed the allegations in the challan sufficiently indicate that there will have to be an accounting. The suit claims many other reliefs; such as accounting and removal of the trustee which also involve an inquiry into the charges of misappropriation. It is said that the suits are ripe for hearing and we do not appreciate that the ends of justice will suffer by postponement of the prosecution in the criminal Court. On the other hand I have mentioned already, in view of the nature of the case there is some risk of a conflict of jurisdiction. In these circumstances we think the best course will be to direct that the criminal proceedings pending against the petitioners should be stayed until the disposal of suit No. 47 of 1934 and Suit No. 737 of 1934 pending in the Original Side of this Court.

4. The rule is made absolute accordingly.

Henderson, J.

5. I agree.


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