Biman Kumar Saha Roy And Ors. vs Tapan Mukherjee And Ors.

THE Counsel for both the parties present. Arguments heard on the LA. No. 9117 of 2014 filed by the OP -1 Dr. Tapan Mukharjee for stay of the proceedings in this complaint. The learned Counsel Mr. Partha Sil for OPs -1 and 2 argued that, on 5.3.2013 complainant filed a criminal case under Section 304A, in the Court of Chief Judicial Magistrate, 24 Paraganas. The OPs got bail and attending a criminal case. Further, in the month of August 2013, the OPs were served with supplementary charge sheet under Section 304 read with Section 7(C) of the West Bengal Clinical Establishment Act, 1950. The Counsel further submitted that, at present stage, the OPs herein are directed to file written version with affidavit on 10.2.2015. In view of above notice, if during the pendency of the above criminal case the OPs are required to file their written version, that would amount to disclosure of their defence which will amount to violation of their rights guaranteed under Article 20 of the Constitution of India and would put the Complainant into serious prejudice that too, when the trial of the criminal case has already been started. It is submitted that since in the criminal case the prosecution has to prove the case and/or to disprove the charges, the cross -examination of the prosecution witnesses on behalf of the OPs have to be made. Since, under The Consumer Protection Act, 1986 (CPA) the present complaint is to be decided in summary proceeding, the interrogatories from both the parties will lead to injustice to the OPs. It is further submitted that, the allegation in the present proceeding as well as in the criminal trial, is that the wife of the complainant died due to the criminal acts/negligence on the part of the OPs, for which the compensation have been claimed in these proceedings. Such compensation is possible to be granted by the criminal Court under Section 357 of the Code of Criminal Procedure and therefore, there is a possibility of the OPs being made liable for payment of the compensation both by this Commission as well as the Criminal Court, thereby the OPs could doubly jeopardize. Further the Counsel for the OP Nos. 1 and 2 relied upon various authorities of Hon''ble Supreme Court and of this Commission like: (i) M.S. Sheriff v. State of Madras, : AIR 1954 SC 379.

(ii) Collector of Customs v. Calcutta Motor & Cycle Co., : AIR 1958 Calcutta 682.

(iii) State of Bombay v. Kathi Kalu Oghad, : (1962) 3 SCR 10.

(iv) Ramanlal Bhogilal Shah & Anr. v. D.K. Guha : (1973) 1 SCC 696.

(v) M.P. Sharma v. Satish Chandra, : AIR 1954 Supreme Court 300.

(vi) Nandini Satpathy v. P.L. Dani & Anr., : (1978) 2 SCC 424.

(vii) Dr. V. Pahiva v. Utsab Basu & Ors., Civil Appeal No. 5477 of 2008.

(viii) Rajiv Kumar Ray & Ors. v. Dr. G.S. Dey & Ors., In R.P. No. 2717 of 2009 passed by NCDRC.

(ix) Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash & Ors., : VII (2013) SLT 225 : (2013) 7 SCC 622.

(x) Indrani Chatterjee v. AMRI Hospital, in CC No. 383 of 2013, by NCDRC.

The learned Counsel for the Complainant argued that, there is no bar for OPs to file a written version under Consumer Protection Act during the pendency of the criminal case. The Counsel for the Complainant relied upon the Hon''ble Supreme Court Judgment in Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra in Civil Appeal No. 3238 of 2009 arising out of SLP (C) No. 10997 of 2008, decided on 5.5.2009 regarding subsequent proceedings which, has observed in Para 19 as follows:

Reverse burden or evidentiary burden on an accused, thus, would require strict interpretation and application. However, in a civil suit such strict compliance may not be insisted upon.

If that be so, it may not be correct to contend that a judgment rendered in criminal proceeding would make continuation of a civil proceeding an abuse of the process of Court.

In this judgment, reference to M.S. Sheriff and other cases was made in the para Nos. 25,26,30, 31, which are reproduced as below:

It does not lay down that a judgment of the Criminal Court would be admissible in the Civil Court for its relevance is limited. Seth Ramdayal Jat v. Laxmi Prasad, : 2009 (5) Scale 527.

The judgment of a criminal Court in a civil proceeding will only have limited application, viz., inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings.

Any finding in a criminal proceeding by no such stretch of imagination would be binding in a civil proceeding.

In M.S. Sheriff & Anr. v. State of Madras & Ors., : AIR 1954 SC 397, a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence.

In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the openly relevant consideration was the likelihood of embarrassment

Another Constitution Bench of this Court had the occasion to consider the question in Iqbal Singh Marwah & Anr. v. Meenakshi Marrvah & Anr., : (2005) 4 SCC 370. Relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held:

Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given.

The question yet again came up for consideration in P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, : AIR 2008 SC 1884, wherein it was categorically held:

It is, however, well -settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.

The Counsel for complainant further submitted that, the Medical Council of India dealt with this matter against OP -1 Dr. Mukherjee, which is already on record.

Therefore, the facts are different in the judgments cited by the Counsel for OP. It is well settled that, Standard of Proof in criminal proceeding viz., civil proceedings is entirely different. In civil proceeding, the issues are decided on the basis of preponderance of evidence/probabilities, whereas, in criminal proceeding, the prosecution is required to establish the guilt of accused, beyond a shadow of reasonable doubt. Thus, the judgment in Criminal Court has limited application in civil proceedings, that is to show, who the accused was and what was the result of proceedings. Any finding in the criminal proceeding by no stretch of imagination, would be binding in a civil proceedings. In view of the above stated position in law, I find no reason to stay the proceedings of this complaint because such an order will run counter to the object of Consumer Protection Act, 1986, i.e. expeditious and inexpensive disposal of consumer complaint. It is pertinent to note that Section 13(3) requires a Consumer Forum to make serious endeavour to dispose the complaint within 3 or 5 months as the case may be, after service of notice.

Therefore, the LA No. 9117/2014 is hereby dismissed. The OP -1 is directed to file its reply within one month from today. List for further proceedings, on 1st May, 2015.