Jai Pal vs Narain Singh

S.C. Malte, J.

This revision is against the order dated 7.6.1996 by which the Additional Sessions Judge, Kapurthala, while allowing the revision, ordered to face the prosecution for the offence punishable under Sections 420, 465, 467, 471 and 120B I.P.C. The prosecution is an outcome of the allegations that two sale deeds were got executed by forging a power of attorney which purported to have authorised the holder of it to execute such sale deeds. The power of attorney was executed in the name of one Piara Ram son of Ditta Ram. The counsel for the complainant submits that such a person show that as power of attorney holder was an imaginary figure and at the time of execution of the sale deeds on the basis of that power of attorney, somebody personated as Piara Ram and executed the sale deeds. Presently, I need not to go into the details of the allegations. Suffice it to mention that sale in question have given rise to filing of a suit for setting aside those sale deeds. In the trial Court, a decree was passed holding these sale deeds as null and void. Against that decision, a civil appeal in the District Court, Kapurthala was filed; and it came to be decided on 7.6.1996. Pertinent to note that the same judge in his capacity as Additional District Judge, while passing the judgment on 7.6.1996 allowed the civil appeal and remanded the case to the trial Court for fresh evidence. The reasons given by him indicate that the defendantappellant in that case (who are also the present revision petitioners 1 to 3), did not have opportunity to lead the evidence in order to establish that the sale deeds were genuine transactions. In the context of that it is pertinent to note that the same judge while functioning in a capacity as Additional sessions Judge, on the same day (7.6.1996) passed the order, which is subject matter of the present revision. The reasons assigned by him in para 15 of the judgment indicate that he relied on judgment of the civil court to arrive at a conclusion that the documents were held to be illegal and void as the other side had failed to prove the genuineness of those documents. On this premises, he directed to proceed against the revision petitioners. It, therefore, appears that on one side he based his reasoning on the decision of the civil Court to arrive at the conclusion that the petitioners should be proceeded against in criminal case. On the same day, on the other hand, he has set aside the decree passed in that civil suit and remanded the mater back. Under these circumstances, the matter has not come up before me.

The counsel for the petitioners placed reliance on a case of Sardool Singh v. Smt. Nasib Kaur, 1987 Punjab Legal Reports and Statutes 633. In that case, the parties were litigating on the issue as to the genuineness of a will. Two civil proceedings were already pending in which the question of genuineness of the will was already sub judice. In the set of these facts, Their Lordships of the Supreme Court observed as follows :

"The Civil Court is, therefore, seized of the question as regards the validity of the will. The matter is subjudice in the aforesaid two cases in Civil Courts. At this junction the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the will is a forged one. That question will have to be decided by the Civil Court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the will is being tested before a civil Court."

Their Lordships at the conclusion of the decision quashed the proceedings by observing that that decision will not come in the way of instituting appropriate proceedings in future in case the civil Court comes to the conclusion that the will is a forged one.

On the basis of the aforesaid ruling, the counsel for the petitioners argued that the criminal proceedings cannot be instituted simultaneously with the civil proceeding. In the context of this, it may be noted that the civil suit in this case was filed on 16.2.1991. The criminal complaint was filed on 24.12.1991. Thus, on the day on which the criminal case was filed, the matter was already subjudice before the civil Court.

The counsel for the respondents placed before me one ruling, namely, the case of State of Rajasthan v. Kalyan Sundram Cement, 1996(1) Recent Criminal Reports 776 : 1996(3) SCC 87. In that case Their Lordships observed that the pendency of a criminal matter would not be an impediment to proceed in the civil suit. That case was under Section 138 of the Negotiable Instruments Act. Obviously, therefore, for recovery of the amount covered by a cheque in question, the civil suit could have been filed. In that civil suit matter was taken to the Apex Court on the issue whether the civil suit should be stayed in view of the pendency of the criminal case. Their Lordships were of the view that the progress of the civil suit need not be held up because of the pendency of the criminal case. No other authority was placed before me though the counsel wanted to say that he has quoted some of his authorities in his reply. To my dismay, he has not cared to bring the reports before me.

It, therefore, clearly appears that in the Apex Court in a given set of circumstances expressed the view that criminal proceedings cannot be instituted when the same subjectmatter is subjudice before the civil Court. In a different context, their Lordships also indicated that these are two different remedies involving different ingredients and the pendency of criminal case would not be an obstacle in a progress of civil suit. In the set of legal position thus emerging, I now proceed to consider the present case.

In this case, the criminal case had been already instituted and progressed upto the stage of framing the charge after adopting warrant procedure under Chapter XIX Part B Cr.P.C. At the time when the Additional Sessions Judge proposed to deal with the revision against the order of framing the charge, the trial Court decree of civil suit was in existence, till it came to be set aside by the same judge on the same day while disposing of the civil appeal, as mentioned above. In this case, some of the accused are already being proceeded against. Under these circumstances, the question would be whether the petitioners before me, who are the vendees in the sale deeds in question, can also be roped in. In the set of circumstances, in my opinion, the ends of justice would be better achieved by staying the progress of the criminal matter during the pendency of the civil suit. I, therefore, pass the order accordingly.