Saral Enterprises vs Ashok Thaper

D.K. Trivedi, J.—The petitioners-original accused Nos. 1 to 3 have filed this application challenging the order passed by the learned Metropolitan Magistrate, 23rd Court, Bombay dated 27th June. 1995 passed below the application filed by the petitioners dated 4th May, 1995 and prayed that the said order of the learned Metropolitan Magistrate be quashed and set aside and further proceedings of Criminal Case No.270/ W/198.9 pending before the Metropolitan Magistrate 23rd Court, Bombay be stayed pending hearing and final disposal of Civil Summary Suit no. 1708 or 1992 pending before the High Court. By way of interim relief the petitioners also prayed that further proceedings of the said criminal case be stayed during the pendency of the above application. The petitioners while filing this application have produced all the documents as well as the complaint filed by the complainant against the petitioners for the offence under Sections 420 read with S.34 of the IPC and u/s 138 of Negotiable Instruments Act, 1881. The petitioners have also produced documents pertaining to the civil suit filed between the parties and pending before the High Court and the order passed in the said summary suit in summons for judgment being No.527 of 1992 taken out by the complainant in Summary Suit No. 1708 of 1992. At this juncture, I am not required to discuss the documents annexed to this application filed by the petitioners. However, while dealing with the application. 1 am not required to consider the order passed by the learned Metropolitan Magistrate dated 27th June, 1995 below application filed by the petitioners for stay dated 4th May, 1995 in the said Criminal Case No.270/ W/l 989. The original complainant had filed complaint against the petitioners-original accused in the Court or learned Metropolitan Magistrate 23rd Court, Bombay against the accused on 14th March, 1995 for the offence u/s 420 read with Section 34 or the I.P.C. and also for the offence u/s 138 or the Negotiable Instruments Act, 1881. The complainant is a sole proprietor of M/s Maharashtra Savings, doing business or finance and investment and the original accused No. 1 is a partnership firm engaged in the business of construction and development or estate. The original accused Nos.2.3 and 4 are the partners or the said firm and the said accused are looking after the day to day business and activities of the said firm. Original accused No.5 is a private limited Company joined as a partner of accused No. 1 and as reflected in the complaint the accused are carrying on their business activities at Bombay. According to the complainant, he has entered loan business activities at Bombay, according to the complainant, he has entered loan transaction with the accused to the extent of Rs. 14.50 lakhs and he advanced amount on 10th June. 1986 by issuing cheques for an amount of Rs.8 lakhs being cheque No.421052 and on the very day another amount of Rs.7.50 lakhs being cheque No.421053. On 31st October. 1986 by issuing four different cheques of Co-operative Bank for an amount of Rs.4.50 lakhs and Rs.8 lakhs each the amounts were received by the accused. It is also in the complaint that for the repayment of the said amount four different cheques wee issued. The details of which are as under:

(i) Cheque No.388052 dated 15.6.1989 for Rs 15.50,000/-

(ii) Cheque No.597796 dated 15.6 1989 for Rs. 25.00.000/-

(iii) Cheque No.597797d;itcd ! 5.6.1989 for Rs. 3.05.000/-

(iv) Cheque No 642410 doled 31.7.1989 for Rs. 2.00.000/-.

It is also lite case of the complainant that upon presentation of first three cheques for payments, the said cheques have been returned dishonored with the remarks that "exceeds the arrangements". ll is also further reflected in the complaint that through Advocate a notice was given to the accused on 3rd August. 1989. In short, complainant had prayed that process be issued against the respondent-accused It is also seen from the order dated 14th March. 1995 that process were issued against the accused u/s 420 of the I.P.C. and u/s 138 of the Negotiable Instruments Act and the said order was based considering the evidence led by the complainant by examining four witnesses. Even the complainant has given up his case regarding the charge for the offence u/s 420 of the I.P''C. and while reading the order of the learned Magistrate, it indicates that learned Magistrate has framed charge against the original accused Nos. 1 to 3 u/s 138 r/w 141 of the Negotiable Instruments Act and the learned Magistrate has in the said order observed that no case is made out to frame the charge against the accused Nos.4 and 5 and least the charge u/s 420 of the I.P.C. Accordingly, the learned Magistrate has framed the charge against the accused Nos. 1 to 3 on 6th April. 1995 for the offence u/s 138 r/w 141 of the Negotiable Instruments Act.

During the pendency of the said criminal case an application on behalf of the accused submitted before the learned Magistrate in the said case on 4th May, 1995 through the advocate wherein the accused had prayed that during the pendency of the Suit No. 1708 of 1992 pending in the High Court, the proceedings of the Criminal Case No. 270AV/1989 be stayed.

In reply to the said application filed by the accused on behalf of the complainant, a reply dated 8th June, 1995 was filed in detail and it is submitted that the application filed by the accused is not maintainable and further that trial of the case has begun and further that as directed earlier for early disposal of the case, the trial of the criminal case cannot be adjourned sine die as prayed for in the application. Even the complainant has filed reply indicating that the filing of the suit was as back as in 1992 and the present application is filed as late as in 1995 knowing the fact that the High Court has expedited the matter of directing the Magistrate the present complaint alongwith other three cases be disposed of before the December, 1995. In short, the complainant has prayed that the application be dismissed.

While dealing with the said application filed by the accused dated 4th May, 1995, the learned Metropolitan Magistrate as per his order dated 27th June, 1995 dismissed the application by speaking order and reading the said order, the learned Magistrate as even considering the various authorities cited before him has observed in his order while dismissing the application to the effect that in the present case four witnesses have been examined and the trial is already begun and further as directed by the High Court to dispose of the matter on or before the end of December 1995 and accordingly the application for stay was dismissed It is this order which is challenged by the accused by preferring this application u/s 397 as well as u/s 482 of the Code of Criminal procedure and prayed that the Court may call for the record and proceedings from trial Magistrate and on perusing the same, the Hon''ble Court may be pleased to set aside the said order and grant relief of stay-of the said criminal case till the final disposal of the suit being Civil Suit No. 1708 of 1992 pending in the High Court. As stated earlier, which Tiling this application, the accused have annexed all the documents and accordingly, during the hearing of the above application, the documents annexed to this application including the application submitted by the accused praying for stay and the order passed below the said application by the learned Magistrate.

It is the contention of the learned counsel for the applicants that regarding the subject matter of the complaint filed by the respondent-complainant for the offence u/s 138 of the Negotiable Instruments Act, 1881. the Court is required to appreciate the evidence and as can be seen, even by filing the suit by the plaintiff-original complainant a point raised in the sit is also pertaining to the subject matter of the dispute, and it will in the fitness of things that the learned Magistrate ought to have granted the relief sought for by the complainant and ought to have stayed the further proceedings of criminal case pending against the applicants and in support of his contention, learned Counsel too!'' me through the complaint filed by the respondents as well as the suit filed by the respondent-complainant pending before the High Court. The learned Counsel also took me through the documents and the order passed by the learned Single Judge dated 5th April, 1995 in summons for judgment No.527 of 1992 in Summary Suit No 1708 of 1992. From reading the said order the learned Judge as per his order dated 5th April. 1995 after hearing the Counsel for the parties dismissed the summons for judgment and unconditional leave was granted in favour of the defendant to defend the suit and the suit was transferred to the list of commercial causes. The suit was also ordered to be placed for the learned Counsel for the applicants that in the said suit unconditional leave was granted in favour of the defendant viz. the present applicants-accused and summons for judgment taken out by the plaintiff was dismissed and it is only thereafter the application was submitted in the Court of learned Metropolitan Magistrate on 27th June, 1995 and submitted that in view of the order passed in summons for judgment taken out by the plaintiff, the learned Magistrate was required to grant the application for stay.

On the other hand, learned Counsel appearing on behalf of the complainant supported the order passed by the learned Metropolitan Magistrate and even the learned Counsel took me through the reply filed by the complainant in reply to the application for stay filed by the accused. According to the learned Counsel, it will be clear that the suit for recovery of the money was instituted by the plaintiff as back as in 1992 and even as per the further proceedings in the criminal case the matter is proceeded further by recording the evidence by the learned Magistrate to dispose of the criminal case within the stipulated Period i.e. by the end of December, 1995. He submitted that in pursuance to the order, the learned Magistrate has proceeded with the recording of the evidence and the matter is in progress. The learned Counsel accordingly prays that this Court may not entertain the application filed by the accused in exercise of power u/s 482 of the Code of Criminal Procedure, 1973 and application be dismissed.

Reading the order of the learned Magistrate, the learned Magistrate while considering the various authorities, hits discussed in his order and reached to the conclusion that in view of the facts of the present case, the application'' for stay filed by the accused is required to be dismissed and accordingly, he rejected the application for stay dated 4th May. 1995.

9 While considering the decision in the matter of Santosh De & Another v. Archna Guha & Ors. reported in Judgment Today 1994( 1) SC 413. the Supreme Court has considered regarding challenge of interlocutory order passed at the instance of the accused and has observed in judgment at para 15 which reads as under:

The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and even'' single interlocutory order if challenged in the superior Courts and the Superior Courts, we arc pained to say. are falling prey to their stratagems We expect the superior Courts to resist all such attempts. Unless a grave illegality is committed, the superior Courts, should not interfere. They should allow the Court which is seized of the matter to go with it. There is always an Appellate Court to correct the errors. One should keep in mind the principle behind Section 465 Cr. P.C. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such order requires to be corrected at that stage itself. Such frequent interference by superior Courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system....

Even in the case of Pratibha Rani Vs. Suraj Kumar and Another, , the Supreme Court while considering the provisions of Section 482 of the Cr. P.C. has observed that complainant must be given an opportunity to prove the case and the same cannot be denied and accordingly the Supreme Court has held that quashing the complaint by the High Com. u/s 482 was not justified and accordingly the judgment of the Punjab High Court in quashing the complaint u/s 482 was quashed by the Apex Court. Even in the said judgment at para 21. the Supreme Court has observed which reads as under:

There are a large number of cases where criminal law and civil law can ran side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at ail for suit the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the Stridhan property of his wife, though kept in his custody,! hat would bar prosecution u/s 406 of I.P.C. or render the ingredients of Section 405 of I.P.C nugatory or abortive. To say that because the Stridhan of a married woman is kept in the custody of her husband no action against can be taken as no offence is committed is to override and distort the real intent of the law.

Considering the other case in the matter of Kishindas Tekchand Vs. The State, , while considering the provisions of Section 344 of Cr. P.C. (1898), the Supreme Court has held that:

The Court is not justified in directing the criminal proceedings to be stayed on the bare theoretical ground that question of tenancy can be more appropriately dealt with by the Civil Court, specially when it is clear from the applicant''s conduct that he is not serious about prosecuting his suit and is obviously playing for time.

Even in that case the Supreme Court has also considered the case of M.S. Sheriff and Another v. State of Madras reported in AIR 1954 SC .197.

Even in the case of Bhanu M. Vakil Vs. Chandra Oshiram Keswani and another, . considering the provisions of Sections 307 and 482 of the Code of Criminal Procedure, it is observed in para 15, which reads as under:

It is true that ordinarily the criminal prosecution ought to be given precedence. Once instituted, the criminal trial should progress expeditiously so that the guilty are brought to book and the innocent are exonerated. This should be done before the facts fade from the minds of the witnesses or the public. Such prosecutions cannot ordinarily be stayed pending the civil suits which are known to take years before they arc taken up for hearing and final disposal. This, however, cannot be universal rule. It would all depend upon the facts of each case and there could be cases where the stay of criminal cases would be justified, and. in my view this is one such case....

Considering the above view, and considering the facts of the present case, I am not inclined to accept the case of the applicant that the criminal case is required to be stayed till the disposal of the suit on the ground that unconditional leave to defend the suit is granted in favour of the applicants-accused.

In view of the above and considering the contentions of the respective Counsel and perusing the order passed by the learned Magistrate, I am not inclined to interfere with the said order, and accordingly, the present application is rejected. Accordingly, learned Magistrate is required to proceed with the criminal case and dispose of the same within the stipulated period. Certified copy is expedited.