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Gopal Chandra Chakravarti and anr. Vs. Suresh Chandra Sanyal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Porperty
CourtKolkata
Decided On
Reported inAIR1929Cal563
AppellantGopal Chandra Chakravarti and anr.
RespondentSuresh Chandra Sanyal and ors.
Cases ReferredRaj Kumar v. Emperor A.I.R.
Excerpt:
- .....of the rule, before the court of the deputy magistrate at alipore, pending the disposal of a civil suit no. 40 of 1929 before the court of the additional subordinate judge, alipore.2. accused 1 was an officer employed by one sm. sailasuta davi, mother and certificated guardian of her two minor sons. the civil suit was filed by her on 25th september 1928 on behalf of the minors against the present petitioners defendants 2 and 3 and accused 1, defendant 1. it was alleged that in february 1928, defendant 1, the manager of sailasuta, was instructed to purchase a touzi no. 151 notified for sale under the revenue laws, and was entrusted with rs. 1,00,000 for the purpose but purchased in his own name though informing sailasuta that it had been purchased on behalf of the estate for rs......
Judgment:

Pearson, J.

1. This is an application on behalf of two accused persons for stay of certain criminal proceedings against them and three others, one of whom joined in support of the rule, before the Court of the Deputy Magistrate at Alipore, pending the disposal of a civil suit No. 40 of 1929 before the Court of the Additional Subordinate Judge, Alipore.

2. Accused 1 was an officer employed by one Sm. Sailasuta Davi, mother and certificated guardian of her two minor sons. The civil suit was filed by her on 25th September 1928 on behalf of the minors against the present petitioners defendants 2 and 3 and accused 1, defendant 1. It was alleged that in February 1928, defendant 1, the manager of Sailasuta, was instructed to purchase a touzi No. 151 notified for sale under the revenue laws, and was entrusted with Rs. 1,00,000 for the purpose but purchased in his own name though informing Sailasuta that it had been purchased on behalf of the estate for Rs. 85,000. Then it is said she was further informed by the manager that there would be delay in getting the matter completed, as the defaulting proprietors had instituted proceedings to have the sale set aside, and for injunction meanwhile. Upon the injunction application, it is said, it came to light that defendant 1 had fraudulently declared himself as the purchaser. This led to further enquiries and it is alleged that defendant 1 had collusively made certain further entries in the books and utilized the Rs. 1,00,000 to purchase the touzi in his own name, and for alleged payment upon a hand note for Rs. 36,000 to Gopal Ch. Chakrabarty (accused 4)-none of which transactions were authorized by the plaintiff's mother. It is then alleged that defendant 1 is attempting to get the sale certificate in his name and deal with the property, while defendants 2 and 3 (the present petitioners) claim certain interests therein. Consequently the relief claimed is a declaration of the plaintiffs' title and injunction restraining defendants from dealing with the property.

3. It appears further that in October 1928, plaintiffs applied for amendment of plaint and appointment of receiver. The petitioners replied to that application on 3rd December 1928, alleging that the original purchase was made to the knowledge of the plaintiffs' mother and with her knowledge and that she knew of the handnote and had accepted it, and the subsequent transfer to him of a portion of the touzi was with her consent and knowledge.

4. On 29th January 1929, the petitioners filed their written statement to the same effect. On 12th March 1929, issues were settled in the suit and the next date fixed is 1st June. The issues are as follows:

1. Have the plaintiffs any cause of action ?

2. Is the suit maintainable if the plaintiffs are not in possession of the property ?

3. Is the Court-fee paid sufficient ?

4. Is the suit barred by the provisions of Sections 36 and 8, Revenue Sale Law under the facts of the present case ?

5. Is the suit barred by estoppel, waiver and acquiescence ?

6. Have the plaintiffs their alleged title to the property in suit ?

7. Did defendant 1 advance a loan of Rs. 36,000 to defendant 2 out of the money of the estate on a pro-note in the name of the plaintiffs' mother in order to enable him to purchase the Chhota Hudda and one-third share of the Burra Hudda in the revenue sale under instructions from the plaintiffs' mother and guardian Sailasuta Devi ?

8. Did defendant 1 make over the pro-note to the said Sailusuta Devi ?

9. Did the plaintiff purchase the whole of the touzi No. 151 in the name of defendant 1 or two-third of share of Barra Hudda only as stated in the written statement under: arrangement made by their mother ?

10. Did defendant 1 inform the mother of the plaintiffs on 23rd February 1928 that the touzi No. 151 had been purchased on behalf of the estate ?

11. Did defendant 1 commit any act of fraud in the matter of the said purchase or make any fraudulent entries in the account book as alleged in the plaint ?

12. Was the touzi No. 151 purchased by defendant 1 on behalf of the plaintiffs alone as. alleged in the plaint or was it purchased by defendant 1 as trustee and agent of the plaintiffs and defendant 2 in pursuance of the arrangement as stated in paras. 12 and 13 of the written statement of defendant 2 If so, what are the respective interests of the plaintiff and defendant 2 in the said touz ?

13. Are the plaintiffs entitled to the declaration and injunction as prayed for ?

14. What reliefs, if any, are the plaintiffs entitled to ?

5. On 7th December 1928 information was given to police regarding the transaction, and accused 1 was arrested on 12th December 1928, accused 2 and 3 on 14th December and the present petitioners on 24th March 1929. The police on 9th April 1929, after four months' investigation submitted a charge sheet against accused 1 under Section 409 for criminal breach of trust as an agent in respect of the sum of Rs. 1,00,000 and misappropriation by purchasing the property property in his own name and fraudulently transferring portion to accused 4. The further charge against all the accused is under Sections 120-Band 409, with having entered into a criminal conspiracy to commit the said offence under Section 409. There is also a charge of falsification under Section 477-A against accused 1 and 2 as to the entries in the account book.

6. The petitioners then allege that the object of the criminal prosecution is to put pressure upon them in the civil suit. They add that the issues involved are the same and they will be prejudiced in the civil 'suit if the criminal matter is first decided. They point to the fact that the civil proceedings were first instituted and say that the matter can best be disposed of by a civil Court.

7. An affidavit has been filed on behalf of the Crown by the investigating officer to the following effect. It is there stated that on 25th February 1928 accused 1 executed a conveyance in favour of accused 4 in respect of the ' Choto Hudda' part of the property for Rs. 4,269 paid by accused 4 out of the Rs. 36,0C0 and it is also recited that accused 1 had received Rs. 29,911 for 1/3rd of the '' Bara Hudda' part. A conveyance for the 1/3rd was executed on 23rd August 1928 but not registered. On 12th March 1928 accused 4, it is said, transferred to his father accused 5, half of the Chota Hudda thus restoring to him the interest which the latter originally had in the property. According to the prosecution case the whole story of the handnote and the loan is a figment. Then it is said the plaintiffs mother only became aware of the nature of the transactions in the course of an application in the suits filed by the owner for setting aside the revenue sale, namely on 10th September, and it therefore became necessary to file the civil suit forthwith to prevent further dealing with the property.

8. Certain authorities have been placed before us by the learned Advocate General on behalf of the Crown and by the learned advocate for the petitioners to indicate the considerations by which a Court ought to be guided in such matters. The result is only to show that no hard and fast rule can be laid down, and that each case must be determined upon its own facts. Even if some or all of the matter materially in issue are the same that in itself cannot be a reason for staying the criminal proceedings; Brojobashi v. Emperor [1909] 13 C.W.N. 398. There proceedings had been taken under Section 476, Criminal P.C. and accused tried to stifle them by filing a civil suit, and no stay was allowed. So no stay was granted in Rajkumari v. Bamasundari [1896] 23 Cal. 610 a case where the proceedings related to an injury 'of an essentially personal nature under Section 499 of the nature of a private prosecution, and even there the subsequent filing of a civil suit by the accused relating to the same subject matter was not allowed as good cause for a stay. It was there pointed out that if the stay were granted the civil proceedings would be dragged out, and the decision would not affect the action of the Magistrate who must decide on the accused's criminality for himself. It was also said that the discretion to stay or not should ordinarily be left to the Magistrate. Ghose, J., says at p. 620;

I am not myself prepared to say that as a general rule a proceeding in a criminal Court should be stayed pending the decision of a civil suit in regard to the same subject matter; but what I think I might properly say is that ordinarily it is not desirable if the parties to the two proceedings are substantially the same, and the prosecution before the Magistrate is but a private prosecution, and the issues in the two Courts are substantially identical, that both cases should go on at one and the same time. So in Jahangir v. Framji [1927] 30 Bom. L.R. 962 another case of defamation, it was said that the test seems to be whether the prosecution is public or private. Where it is public the Court as a rule in the exercise of its inherent jurisdiction, would not stay criminal proceedings. Where it was private (as in that case) there would not be the same reluctance of the Court to interfere.

9. The petitioners have relied on Lucas v. Official Assignee [1920] 24 C.W.N. 418, where Jenkins, C.J. said:

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. It is too well-known to need elaboration that criminal proceedings lend themselves to the unscrupulous application of improper pressure with a view to influencing the course of the civil proceedings, and beyond that there is the mischief illustrated by this case of criminal proceedings being instituted with an imperfect appreciation of the facts where they have not been ascertained in the moresearching investigation of a civil Court.

10. While agreeing generally with the views there expressed, we must not forget that that case was one where the penal sections of the insolvency law had been invoked against the insolvent much more in the nature of a private prosecution, and much more open to the suggestion of improper pressure for behoof of the creditors. So if the object of the criminal proceedings be in reality to prejudice the trial of the civil suit or coerce accused to a compromise the Magistrate should as a general rule postpone the enquiry Subramanyan Chett'y, In re 2 Weir 415. Then of other cases referred to, they are mostly of a particular class to which particular considerations would apply, relating to documents forming the basis of attack or defence in civil suits, where the other party says they are forgeries or fraudulently obtained or the like and the criminal proceedings on that count have been stayed ; See Sasi Bhusan v. Emperor [1911] 38 Cal. 106, Janaki Das v. Emperor A.I.R. 1922 Lah. 424, Gobordhone v. Iswar Chunder [1901] 5 C.W.N. 44, Anna Ayyar v. Emperor [1907] 30 Mad. 226Ram Charan v. Emperor [1907] 5 C.L.J. 233, where however there was no appearance to show cause. InDebi Mahto v. Emperor, a stay was ordered for proceedings under Sections 193 and 209, I.P.O., pending an appeal against an order of the civil Court revoking a succession certificate on the ground that appellant was not related to deceased. In this case also no cause was shown. Then there may be cases where the proper course may be to expedite civil proceedings where a question of fact involved therein is also raised in criminal proceedings Raj Kumar v. Emperor A.I.R. 1921 All. 365.

11. An examination of these cases shows that no hard and fast rule can be laid down, and that each case must stand upon its own facts. Here one may agree that in some of the issues in the civil suit especially 7, 11 and 12, the matters to be agitated will be in substance the same as in the criminal proceedings and the parties are substantially the same. It may be of course that the suit will fail upon one of the technical issues such as No. 4 when the merits would never be gone into. Again, it-is all very well to say that the plaintiffs have the conduct of the civil suit and that it rests in their own hands to bring it to an early conclusion, while the case is fixed for the 1st June. At the very best it would take a considerable time before the trial would be completed and judgment could be given, and then the matter would not in the ordinary course be disposed of, up to the highest tribunal of appeal, for another 4 years at a moderate estimate. I do not consider that it disposes of the matter to say that the criminal proceedings 'should be stayed because in the criminal case the accuseds' mouths are shut, whereas in the civil case they will be able and ready to give their own evidence. If that argument were to prevail, it would apply in every case of this nature, and there would be no need to go further. Assuming the facts disclosed by the prosecution to be true, it was essential for Sailasuta with all speed, after what she discovered in the interlocutory proceedings in the other suit, to file her civil suit to protect the title to and prevent dealings with the property. If her information to the police is at a somewhat later date it was not unreasonably so. It is now a fact that it is a Crown prosecution with the Crown a party, whose interests and rights are not those of a private prosecutor, but of public justice. I agree that indirect motive or coercion by way of pressure on the defendants in the civil suit might lead a Court to stay criminal proceedings but in the present case there is no room for that. It is a public prosecution and none the less so because the police have in the first instance no choice but to enquire into the offences charged. Lastly, as pointed out by the learned Advocate General, an offence under Section 120-B is non-compoundable.

12. In the facts and circumstances of this case as presented to us, I am of opinion that the decision arrived at by the learned Magistrate was right and should not be interfered with by this Court. The rule is accordingly discharged.

Mallick, J.

13. I agree.


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