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Bhagbati Devi Goenka and anr. Vs. Sunil Kumar Ganguly - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1971CriLJ1003
AppellantBhagbati Devi Goenka and anr.
RespondentSunil Kumar Ganguly
Cases ReferredJay Narayan Misra v. The State
Excerpt:
- .....companies act, 1956. it is abundantly clear therefore that neither the parties in the criminal and civil proceedings are the same nor the points at issue therein are identical, ruling out any likelihood of conflicting decisions and embarrassment. the scope and ambit of the issues are quite different and the relief prayed for is also entirely distinct. it is expedient also to consider in this connection the time factor, more so, in view of the considerable delay that had already taken place in the carriage of the proceedings. neither suit no. 1871 of 1966 nor suit no. 2304 of 1966 pending before the high court is ready for hearing and a considerable time is likely to elapse before the same may be placed for hearing in the daily list. it appears from the affidavits that in the suit no......
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is at the instance of the two accused-petitioners and is against an order dated the 13th April, 1970 passed by Sri P.C. Chakrabortv. Presidency Magistrate, 4th Court. Calcutta, rejecting the petitioners' prayer for staying the criminal proceedings pending against them Under Section 628 of the Companies Act. 1956 and 628/109. I. P, C, respectively being case no. C/. 3179 of 1966, till the disposal of the civil suits nos. 1871 of 1966 and 2304 of 1966 in the High Court.

2. A short point is involved in the Rule as to whether the criminal proceedings pending in the Presidency Magistrate's court should be stayed till the disposal of the civil suits pending before the High Court. The background of facts leading on to the Rule though chequered can be put in a short com pass. The complainant opposite party. Sunil Kumar Ganguly filed a petition of complaint in the court of the Chief Presidency Magistrate. Calcutta Under Sections 120B, IPC and 628 of the Companies Act, 1956 against the two accused Sm. Bhagabati Devi Goenka and her brother Ram Autar Jalan on the 20th September, 1966 stating inter alia that the complainant is a shareholder and a director of M/s. Coal Products Private Ltd. having its city office at 119B, Chittaranian Avenue, Calcutta; that he was co opted as a director of the said company since the 30th October, 1963; that the accused No. 1, Smt. Bhagabati Devi Goenka is also one of the directors of the said company while the accused No. 2 is her brother; that besides the two directors mentioned above, Sri Kishorilal Goenka and Smt. Parameswari Goenka were the directors while Sri Nawratan Goenka was appointed to be an Additional Director on the 28th December, 1965; that on 12-9-64 the ac cused No. 1 submitted a return of alteration in the particulars of directors of the aforesaid company Under Section 303 of the Companies Act, 1956, with the Registrar of Companies and therein she falsely described the accused No. 2 as one of the directors of the company and further showed falsely that the complainant had ceased to be a director; that the said return was filed before the Registrar on 28-9-64 by the accused No. 2; that a copy of an alleged resolution authorising the accused No. 2 to operate the bank account with the United Commercial Bank, Barrabazar Branch, was submitted by the accused Nos. 1 and 2 and considerable amounts were withdrawn for which a suit was filed by the company in the High Court; that the accused along with others had entered into a conspiracy in pursuance whereof they had prepared a false return Under Section 303 of the Companies Act, 1956 and submitted the same before the Registrar of Companies; that the said return contained false statements to the knowledge of the accused No. 1 and the accused No. 2 abetted the accused No. 1 in fabricating and filing the said false return which was actually filled up in his own hand; that on coming to know about the same in June, 1967. the complainant made enquiries applying for a certified copy of the said return; that the accused persons had committed offences Under Sections 120-B, IPC and 628 of the Companies Act, 1956; and that processes accordingly should be issued against them. On examination of the complainant the case was sent for judicial enquiry and report, On a consideration of the report of the judicial enquiry and the materials elicited therein the learned Chief Presidency Magistrate, Calcutta, by his order dated the 15th October, 1966 issued summons against the accused no. 1 Under Section 628 of the Companies Act, 1956 and the accused No. 2, Ram Autar Jalan Under Section 628 of the Companies Act, 1956/109, I P.C. Thereafter a protracted proceedings followed and on one ground or other the case was delayed. Nine witnesses were examined and cross-examined before charge before the learned Presidency Magistrate to whom the case was transferred and several documents were also proved. On 30-8-69 the learned trying magistrate observed that the case could not be dragged on indefinitely. On 29-11-69 the learned Presidency Magistrate framed charges Under Section 628 of the Companies Act, 1956 against the accused No. 1, Smt. Bhagabati Devi Goenka and Under Section 628 of the Companies Act, 1956 read with Section 109, IPC against the accused No. 2, Ram Autar Jalan and fixed dates for cross-examination. On 16-1-70 an application was filed on behalf of the accused No. 2, Ram Autar Jalan by the learned Counsel for staying the criminal proceedings stating inter alia that the return (ext. 1) which is the sheet-anchor of the criminal proceedings filed on the 20th September, 1966 is directly and substantially in issue in suit no. 1871 of 1966 filed earlier on the 12th September, 1966 and pending in the High Court and that on the 21st November, 1966 the accused No. 2 had filed suit No. 2304 of 1966 in the High Court for rectification of the share register of the company and praying accordingly that the criminal proceedings be staved or in the alternative be adjourned for a fortnight to enable the accused to move the High Court for appropriate directions and/or orders. On 17-1-70 the complainant filed a petition challenging the defence contentions. A spate of applications and affidavits followed and the learned trying magistrate started hearing the arguments on the 7th February, 1970. The arguments continued on the 14th February. 1970, the 21st February, 1970, 28th February, 1970. the 14th March, 1970, the 20th March, 1970. the 21st March, 1970. the 28th March, 1970, the 31st March. 1970, the 1st April, 1970. the 4th April. 1970 and the 11th April, 1970. Ultimately on the 13th April. 1970, Sri P.C. Chakraborty. Presidency Magistrate. 4th Court, Calcutta rejected the defence prayer for stay. This order was impugned and forms the subject-matter of the present Rule.

3. Mr. Sankardas Banerjee, Counsel (with Messrs. Prasun Chandra Ghosh) and Promod Rani an Roy, Advocates), appearing in support of the Rule on behalf of the accused-petitioners made a two-fold submission. The first submission which is on merits is that in the facts and circumstances of the case the issues involved in the criminal proceed ing and the two civil suits are substan- tially the same and as such the criminal proceedings should be staved pending the disposal of the civil suits in order to avoid the risk of embarrassment and a conflict of decisions. The second contention of Mr. Banerjee is one of law relating to the interpretation of Sec 344 of the Code of Criminal Procedure and the scope and ambit of granting a stay of the criminal proceedings pending the disposal of the civil suits. Mr. Banerjee cited some cases in support of his contention and the same would be considered in the proper context. Mr. Ajit Kumar Dutt, Advocate (with Messrs. Dilip Kumar Dutt and Ajay Nath Mukherjee, Advocates) appearing on behalf of the complainant opposite-parties joined issue and submitted that the issues in the civil suits and the criminal proceedings are not the same and the criminal proceedings have already been much too delayed and as such should not be held up any further. Mr. Dutt further submitted that criminal proceedings should have priority and be disposed of expeditiously and the Supreme Court has also disapproved of staying criminal proceedings pending the disposal of the civil suits. Mr. Dutt referred in this connection to some cases which will be duly considered. Mr. Shyamsundar Pal, Advocate, appearing on behalf of the State also opposed the Rule and submitted that this much delayed proceedings before the trying magistrate should not be held up any further prejudicing all and that it is expedient in the interests of -justice that such criminal proceedings should be disposed of as early as possible.

4. In order to determine the first point raised by Mr. Banerjee, it is necessary to find out whether in fact the issues in the criminal proceedings as well as in the two civil suits are the same The risk of embarrassment or of conflicting decisions is only dependant upon the determination of the above point, It is therefore pertinent to refer to the records of the two civil suits and of the criminal proceedings, including the affidavits filed by the parties in this behalf, to find out the nature of the said cases and the issues involved therein. In the Civil Suit No. 1871 of 1966, filed 8 days before the criminal proceedings were instituted, the plaintiff Kishorilal Goenka prayed for a declaration that the defendant therein Ram Autar Jalan was not entitled to act as a director and should be restrained from acting as such till the disposal of the said suit. The appellate Court by its judgment dated 1-3-68 injuncted Ram Autar Jalan from acting as a director allowing him to operate the bank account of the G. L. Group with the United Commercial Bank Burrabazar Branch, Calcutta subject to the control of the Special Officer. The decision of the appellate Court was affirmed by the Supreme Court of India on an appeal filed by Ram Autar Jalan being Civil Appeals Nos. 1412 and 1413 of 1968. In the Civil Suit No. 2304 of 1966 filed by Ram Autar Jalan in the High Court against M/s. Coal Products Private Ltd., a prayer was made for the rectification of the shares registered in the company in respect of 1,000 shares purchased from Sm. Bhagabati Devi Goenka, The allegations contained in the criminal proceedings on the other hand, are inter-alia that the two accused along with others had entered into a conspiracy in pursuance whereof they had prepared a false return Under Section 303 of the Companies Act, 1956 and submitted the same before the Registrar of Companies, that the said return contained false statements to the knowledge of the accused No. 1 and the accused no. 2 abetted the accused no. 1 in fabricating and filing the said false return which was actually filled up in his own hand and that thereby the accused persons had committed an offence Under Section 120B, IPC read with Section 628 of the Companies Act, 1956. It is abundantly clear therefore that neither the parties in the criminal and civil proceedings are the same nor the points at issue therein are identical, ruling out any likelihood of conflicting decisions and embarrassment. The scope and ambit of the issues are quite different and the relief prayed for is also entirely distinct. It is expedient also to consider in this connection the time factor, more so, in view of the considerable delay that had already taken place in the carriage of the proceedings. Neither suit no. 1871 of 1966 nor suit no. 2304 of 1966 pending before the High Court is ready for hearing and a considerable time is likely to elapse before the same may be placed for hearing in the daily list. It appears from the affidavits that in the suit No. 1871 of 1966 only discovery of documents has been made but no inspection uptil now and in suit no. 2304 of 1966 only written statement has been filed. Apart from the point of relevancy therefore the question of time is also very much necessary in order to decide whether the criminal proceeding which was started so far back as on the 20th September, 1966 should be stayed any further. Criminal proceedings cannot be held up indefinitely or be adjourned sine die. I hold therefore that in the facts and circumstances of the case and in view of the considerable lapse of time the present criminal proceedings should not be stayed any further till the disposal of the two civil suits. The first ; contention of Mr. Banerjet' accordingly' fails.

5. The second contention of Mr. Banerjee as observed before, is one of law relating to the interpretation of Section 344 of the Code of Criminal Procedure and the scope and ambit of allowing a stay of the criminal proceedings pending the disposal of the civil suits. A reference to the provisions of Section 344 of the Code of Criminal Procedure as amended by Act 26 of 1955 would pinpoint that the key-note of the said provision is expedition. The provisions of Sub-section (1) to the said section are as follows:

In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

The second proviso to Sub-section (1A) is that

when witnesses are in attendance. no adjournment, or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

Sub-section (1) has been obviously added to emphasise that proceedings shall be held expeditiously and that an enquiry or trial once begun shall ordinarily be continued from day to day until it is finished. The old Sub-section (1) to section 344, Cr.PC has been represented as Sub-section (1A) and the second proviso thereto added by Act 26 of 1955 forbids an adjournment without examining the witnesses in attendance. The object obviously is to speed up criminal trials and put an end to dilatoriness In this connection the provisions of Sub-section (3A) to Section 497, Cr.PC as added by Act 26 of 1955 should not also be overlooked. The said provision lays down that if the trial of a non-bailable offence is not finished within 60 days from the first date fixed for taking evidence, the accused shall, if in custody be released on bail, unless the Magistrate directs otherwise for reasons to be re corded. The language of the aforesaid provisions of Section 344 of the Code of Criminal Procedure clearly discourages an adjournment sine die. It is pertinent therefore that the intention of the legislature is that criminal proceedings should be expedited and not lag behind causing [prejudice to all concerned.

6. A reference now may be made to the case cited by the respective parties in support of their contentions. In the case of J. M. Lucas v. Official As- signee of Bengal, reported in A.I.R. 1920 Cal ,624 (2). Chief Justice Sir Lawrence Jenkins silting with Sir John Woodroffe observed at page 629 that

Though no invariable 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.

Their Lordships further observed that 'Criminal proceedings lend themselves to the unscrupulous application of improper pressure with a view to influencing the course of the civil proceedings'. It would appear therefore that Their Lordships have clearly observed that no invariable rule can be laid down and that criminal proceedings should not be allowed to continue if the same issues are involved. I have already held that in the facts and circumstances of the respective cases, civil and criminal, the issues are not the same. In the case of Gopal Chandra Chakraborti v. The King Emperor, reported in 33 Cal WN 969 : A.I.R. 1929 Cal 563 Mr. Justice Pearson and Mr. Justice Mallik held that one test is whether the prosecution is public or private, and when it is public, the court as a rule would not stay criminal proceedings but where it is private, there would not be the same reluctance to interfere. Their Lordships ultimately held that some or all of the matters materially in issue in one case being the same as those in the other cannot by itself be a reason for staying the criminal proceedings. A Division Bench of this Court held that an adjournment of a criminal case sine die is illegal and improper. Chief Justice Derbyshire sitting with Mr. Justice Henderson held so in the case of Emperor v. Rahamatali, reported in 45 Cal WN 819. In a subsequent case viz., the case of Yelchuri Ranganayakal : AIR1953Mad439 u Chetty v. Gopala Chetty, reported in Mr. Justice Ramaswami reviewed a large number of cases and ultimately observed that there is no invariable rule but the matter is entirely one of discretion to be exercised having regard to the merits and all the circumstances of the case. His Lordship further observed that the only general rule to be adumbrated is that every court should be left as far as possible to dispose of the case on its file with the utmost expedition. Giving my anxious consideration to the facts of the present case, I hold that the matter has already been much too delayed and expedition is called for to dispose of the same. As rightly observed in the above-mentioned case that the matter is one of discretion and in view of the facts and circumstances of the case I hold that the learned Presidency Magistrate has rightly exercised his discretion and I should not interfere with the same in exercise oi1 the revisional jurisdiction of this Court. Mr. Ajit Kumar Dutt referred to the well known case of M. S. Sheriff v. State of Madras, reported in : [1954]1SCR1144 and relied on the observations of Mr. Justice Vivian Bose, delivering the judgment of the Court. at page 399 that 'As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence............ No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration'. It was further observed by the Supreme Court that 'Another factor which weighs with us 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......... Another reason is that it is undesirable to let things slide till memories have grown too dim to trust'. Mr. Banerjee appear ing on behalf of the accused-petitioners pinpointed the further observations made by their Lordships of the Supreme Court at page 399 that 'This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and fust. For example, the civil case or the other criminal proceedings may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered Under Section 476'. Having given my anxious consideration to the observations referred to above, I find that the Supreme Court pinpointed the necessity of expediency in the criminal proceedings and in that context laid down that there is no hard and fast rule. I respectfully agree with the same. Each case must depend on its own fact and in view of the facts and circumstances of the case and in view of the further fact that the civil suits are not at all near their end but on the other hand the criminal proceedings have proceeded considerably to the cross-examination stage, it is not expedient in the interests of justice to hold up the criminal proceedings any further. Mr. Banerjee also relied on the case of Thames Launches, Ltd. v. Corporation of the Trinity House of Deptford Strond reported in (1961) 1 All ER 26 wherein Mr. Justice Buckley held that where matters which involve substantially the same issues were raised both in civil proceedings and at a later stage in criminal proceedings in an inferior court between parties, the court could restrain the prosecutor in the criminal proceedings from continuing them Until the civil proceedings had been decided. It was further held that the principle is wide and the test is whether it 'would really be vexatious'. Mr. Banerjee relied on this observation to contend that the present criminal proceedings should be stayed pending the two civil suits in the High Court. The steps of Mr. Banerjee's reasoning have overlooked the material observation made by Mr. Justice Buckley that the substantial point in the proceedings must be the same. In the facts of the case reported in (1961) 1 All ER 26 it was held that the substantial point in the proceedings was the same. I have already found, however, as mentioned above, that it is not so in the present case and therefore I do not consider that it will be expedient in the interests of .justice to stay the criminal proceedings' any further. A reference may also be made to a Division Bench decision of this Court in the case of Jay Narayan Misra v. The State, reported in 1966 Cri LJ 207 (Cal) wherein Mr. Justice K. C Sen and Mr. Justice A. K. Das held, in the facts of the said case, that considering that the criminal proceedings which were split up into as many as 12 cases were proceeding in a leisurely fashion and were yet at initial stage without charge having been framed in any one of them, it was proper that civil suit should be given precedence over the trial of the criminal cases and ultimately stayed the criminal proceedings. The facts, however in the present case are entirely different. In the criminal proceedings not only the charge had been framed but the cross-examination stage was reached and the prayer on the part of the accused is very much belated, The question is also one of expediency and it is pertinent once again to refer to the well-known observations of Mr. Justice Vivian Bose in the case reported in A.I.R. 1954 SC 397 that '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.' I respectfully agree with the said observations and I hold that it is undesirable in the facts and circumstances of the present case to stay the criminal proceedings any further and 'let things slide till memories have grown too dim to trust'. Mr. Banerjee also made an ancillary submission in this context based on the grounds of justice and prejudice to the accused if the criminal proceedings be not stayed. Justice, however is in accordance with law and not an one-way traffic. The prosecution is as much a limb of the court as the defence is and the two are like the two prongs of a scissor cutting the cloth but not cutting each other. In view of the findings al ready arrived ;it by me above and in view of the undoubted delay caused in the case, I do not find any force behind the ancillary submission of Mr. Banerjee and it does not succeed. The second contention of Mr. Banerjee therefore fails.

7. In the result, I discharge the Rule; and I uphold the order dated the 13th April, 1970 passed by Sri P.C. Chakraborty, Presidency Magistrate, 4th Court, Calcutta, rejecting the petitioners' prayer for staying the criminal proceedings Under Section 628 of the Companies Act, 1956 and 628/109. IPC being case No. C/3179 of 1966 pending against the accused, till the disposal of the civil suits Nos. 1871 of 1966 and 2304 of 1966 in the High Court; and I direct that the case shall proceed in the court below expeditiously and in accordance with law.

8. The records are to go down as early as possible.


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