Bhagwat Prasad and Another vs Ramkisun Ram Sonar

Macpherson, J.—In this application for revision the petitioner pray that criminal proceedings pending against them in the Court of the Sub-Divisional Magistrate of Siwan be quashed or in the alternative be stayed pending the disposal of a civil suit. The first petitioner is a mahajan and the second petitioner is his munib.

On 23rd Setember last Ramkishun Sonar preferred a complaint against them alleging that on the preceding day petitioner 2 went to him and asked him to fetch his hathchitha (a sort of bank pass book) to petitioner, 1 petitioner 1 asked for the hathchitha and made entries on the debit and the credit side in spite of the protest of the complainant who is illiterate; the hathchitha originally showed Rs. 224 as due by the complainant but by the entries an additional Rs. 594 was fraudulently shown as due by him. The complainant''s case was that on the tij day, seventeen days previously, he had refused to clean the ornaments of petitioner 1 who tried to get even with him in the manner described.

The Sub-Divisional Magistrate directed the Sub-Deputy Magistrate to enquire and on reading the report of the enquiry at which the petitioners were represented, he on 6th November summoned the petitioners u/s 467, I.P.C. for 28th November. On 26th November petitioner 1 filed a civil suit for the sums mentioned plus interest and without asking the Court below for a postponement u/s 344, Criminal P.C, moved this Court on 13th December and obtained the present; Rule.

In support of the Rule Mr. Jyotirmay Chatterji first urges that no offence is disclosed. The original complaint appears to have been of cheating though summons was issued for a more serious offence. The complainant alleges that only Rs. 244 was due and that the entries were made in the hathehitha fraudulently.

The Magistrate was of opinion that the action of petitioner 1 amounted to the making of a false document and that petitioner 2 who had made the previous entries abetted petitioner 1. It is manifestly not possible to say at this stage that the proceedings should be quashed because they disclose no offence.

The learned advocate has, however, most strenuously contended that the criminal case should be postponed until the civil suit has been decided. In this connexion the decisions of single Judges of this Court and the remark obiter of Sulaiman, J. in Kanhaiya Lal Vs. Bhagwan Das, have been cited. On behalf of the opposite party reliance has been placed on the decisions in Ram Saran Singh v. Nikhad Narain Singh AIR 1925 Pat. 619 Raghubir Singh v. Emperor [1920] 1 P.L.T. 489 Gnanaisigamani Nadar v. Vedamuthu AIR 1927 Mad. 308 and C. Ramiah v. N.K. Ramiah AIR 1927 Mad. 778 decided by Jackson, J., the last mentioned of which has been cited with approval by Wort, J. in Hirday Narian Singh v. Emperor AIR 1929 Pat. 500 as well as the recent decision in Gopal Chandra Chakravarti and Another Vs. Suresh Chandra Sanyal and Others, .

It is not without significance that the petitioners failed to make any application to the Magistrate u/s 344. Again it is obvious that the civil suit was filed on 26th November with the object of stifling the pending prosecution. It is not a case of the civil suit being first instituted and thereafter a complaint being filed with the object of prejudicing the trial of the civil suit, in which circumstances the trial of the criminal case might well be postponed : A.R.S.P. Subramanian Chetti v. Emperor [1902] 2 wei. 415. In my opinion the true Rule is laid down by Jackson, J. There is no reason to prefer consecutive to simultaneous trials. A stay order is in essence only justifiable on special grounds.

The general rule is that the High Court should avoid staying proceedings in the lower] Courts.

The only question which can arise is whether the circumstances of the present case afford reason for treating it as an exception to these rules. In my opinion the answer must be in the negative. The civil proceedings will in all probability be protracted for several years-before they are concluded. They have obviously been instituted as a counter blast and particularly with an eye to the present prayer, the grant of which would postpone the criminal proceedings until they are stale. One would also expect the petitioners themselves to resent a serious criminal charge being kept hanging over their heads-for years.

If, as they allege, it is without substance, the Magistrate may be expected to release them from the shadow of it at a very early date.

Upon this view the application is without merit and the Rule must be discharged.