Sudhamay Basu, J.@mdashThis rule was obtained in respect of an order dated 7th of July, 1976 passed by the Metropolitan Magistrate, 16th Court, Calcutta in case No. C/602 of 1975 u/s 408 I.P.C. rejecting the prayer of the petitioner for staying the proceedings till the disposal of suit no. 458 of 1975 pending in the original side of this High Court.
2. It appears that on 30.10.1975 the opposite party no. 1 on behalf of Sahujain Services Limited filed a complaint against the petitioner for having committed an offence punishable u/s 408 I.P.C. before the Additional Chief Metropolitan Magistrate. After summons was issued the petitioner entered appearance. The case was transferred to the Metropolitan Magistrate, 16th Court, for disposal. It further appears that M/s. Sahujain Services Limited had filed a civil suit against the petitioner on 12.8.1795 in the original side of the High Court praying for a decree for Rs. 64380.63 with interest, inter alia, on the grounds that the petitioner as an employee of the company filed to account for and/or adjust a sum of Rs. 49085.18 belonging to the company. The petitioner filed an application before the Metropolitan Magistrate for stay of criminal case till the disposal of the civil suit as the subject matter of the both was the same. By an order dated the 7.7.1976 the leaned Magistrate rejected the prayer and the same is challenged in this proceeding.
3. Both. Mr. Roy who appeared in support of the rule and Mr. Sengupta who opposed the same, referred to some legal principles as laid down by the courts from time to time. The leading case on this point seems to be M.S. Sheriff Vs. The State of Madras and Others, . The learned Metropolitan Magistrate relied on an observation of Bose, J. in that case at paragraph 15 where it was said that "as between a civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence". The Supreme Court recognized however that there was some difference of opinion in the High Courts on this point and no hard and first rule could be laid down. It was held that possibility of conflicting decisions in the civil and criminal court was not a relevant consideration. The law envisages such eventuality when it expressly refrains from making a decision of one court binding on the other or even relevant except for certain limited purpose such as sentence or damage. Only relevant consideration is the likelihood of embarrassment. The other consideration, which weighed with the Supreme Court, was that a civil suit often dragged on for years and it was undesirable that the criminal prosecution should wait as long in the interest of public justice. It was emphasized that special consideration obtaining in any particular case might make some other course more expedient and just.
4. Another case of importance is a Division Bench judgment of our High Court in the case of Jay Narayan Misra Vs. The State and Others, . In that case twelve criminal proceedings were started against several persons under several charges of criminal breach of trust, forgery, conspiracy and such other cognate offences. Before the prosecutions a civil suit for realization of the sum in respect of which this proceedings were stated, was filed on allegations, the pith and substance of which was the same. The criminal proceedings were stayed till the decision of the civil suit. The Supreme Court decision was considered in that case and the court took note of the fact that the Supreme Court was of the view that no hard and first rule could be laid down. Reliance was placed in the case of Thames Launches limited v. The Corporation of Triniti House reported in 1961 (1) A.E.R. 26. It was held inter alia, in that case "where matters which involved substantially the same issues were raised both in civil proceedings in an inferior court between parties who looking at the substance of the matter, were in reality the same the court could restrain the prosecutor in the criminal proceedings from continuing them until civil proceedings had been decided". In an earlier Division bench case J. M. Loocus v. Officially Assignee of Bengal reported in 24 C.W.N. 418 the trial court of the special court case was stayed pending decision of civil suit. Jenkins, C.J., inter alia, held in that case "Though no universal 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 influencing the course of the Civil proceedings;...........It is, therefore, proper in the facts of the present case that the Civil suits instituted earlier should be given precedence over the trial of the Criminal cases in respect of the came subject-matter. We are of the view that the trials of the Criminal Cases before the Special Judge should be stayed pending decision of the Civil Suits". Another case cited at the bar was Yelchuri Ranganayakalu Chetty and Another Vs. K. Gopala Chetty, . That case reviewed forty-five decisions of various courts. It was held that staying criminal proceedings pending the issue of a civil suit is entirely one of discretion. One of the earlier cases C. Nadar v. V. Nadar reported in 52 MLJ 30 was considered in that case and an observation of Jackson, J. which was quoted and to which Mr. Sengupta, learned counsel, laid emphasize was "for instance to take the argument most usually advanced in these cases, can it be said that where there is a common issues, it must first be finally decided in the Civil Court before it is examined in the Criminal Court. A Criminal Court is an every way as competent as a Civil Court to examine questions of possession or questions involving the genuineness of documents and there is no particular reason for giving priority to the Civil Court". It was further observed that there was nothing especially wrong with simultaneous proceedings in two courts. It was specifically stated that a criminal court couldn''t decline to examine the question of forgery against the forged document, which has been admitted as genuine in a civil court. Moreover in the interest of everybody concerned, the criminal charge should be disposed of as quickly as possible.
5. Mr. Ray while not forgetting the observation of the Supreme Court laid emphasize on the two Division Bench decisions of this court and emphasized that in this case there were as many as 92 items in the civil suit filed in the High Court in which amounts have been claimed on the basis of mis-appropriation. Of these 92 items four items have been later on chosen for the purpose of criminal prosecution. There is hardly any doubt that the pith and substance of the two proceedings are the same. He also said that he entire prosecution was malafide inasmuch as the prosecution was launched years after the company first come to correspond with the petitioner on his subject. It was after provident fund and other dues of he petitioner were claimed that the proceedings were started. Again if they were serious the company would not have left out several items. Although the suit was filed again in 1974for three years no step has been taken for its hearing. Again even the fact that the suit has been filed was kept back from the learned Magistrate when the complaint was lodged. Apart from malafide nature Mr. Roy argued that he simultaneous proceedings would embarrass his client.
6. Mr. Sengupta submitted that the question of malafide should not be gone into at this stage without scrutinizing prima facie the submissions made by the petitioner. Although initially at one stage he stated that both the proceedings involved the same matter in substance later on Mr. Sengupta submitted that the substance in the two proceedings could not be held to be the same. Moreover, according to him, the embarrassment has to be real. Since the written statement has already been filed the accused has already exposed his defence. There is no question of embarrassment after that. Moreover in criminal trial the guilt had to be established by dint of evidence beyond reasonable doubt but in a civil suit it is the principle of preponderance of evidence and probability, which mattered.
7. There is so doubt that stay is a matter of discretion but in exercising this discretion the court has to keep in view the legal principles laid down by the different courts some of which have been stated briefly earlier. While simultaneous trials may cause difficulties there is nothing wrong in them essentially when the laws permit them. Moreover conflict of decisions inherent in the very permissiveness of law allowing a civil action and a criminal proceedings over the same matter. Both Supreme Court and some of the Madras decisions such as Yelchuri Ranganayakalu Chetty and Another Vs. K. Gopala Chetty, ; 52 MLJ 80 (G. Nadar vs. V. Nadar which have been noted above) seem to emphasize the necessity of expeditious disposal of criminal trials in public interest. At the same time some of the Division Bench decisions of our High Court have not hesitated to stay criminal trials in appropriate cases. The Supreme Court while emphasizing the necessity of speedy termination of criminal proceedings also pointed out that there was no hard and first rule governing the question and the matter was discretion of the court. Our High Courts have attached some significance to a civil proceedings being instituted previously specially if the forum is a superior court. The English decisions were taken note of in this connection. As Bucklay, J. pointed out in the case of T. Lounches vs. Triniti House the court has to be satisfied that to allow a criminal proceedings to be proceeded with pending the decision of the Civil proceedings would really be vexatious. Besides it will be putting too narrow a construction of the term "embarrassment to confine or equated to disclosing the nature of defence, as Mr. Sengupta''s argument suggested. Our courts have noted that in this country unfortunately sometimes-improper pressure is sought to be put through unscrupulous application of criminal proceedings. All these discussions are however in the abstract. What is more difficult is the application of these principles to particular facts. In this case which is a border line are the considerable delay in filing complaint and the fact that only four out of ninety two items have been chosen to form the subject matter of the criminal proceedings have been argued to denote that the complainant was not serious about the criminal nature of the acts. Again, the substance of both the proceedings is misappropriation. The civil suit is also earlier in point of time. The same has also been filed in this High Court while the criminal proceedings is pending in the Metropolitan Magistrate courts. Another point to note is that in spite of elapses of three years the company has not taken any step to proceed with the civil matter. This is liable to be interpreted, as Mr. Roy indeed contended, putting the petitioner in peril of punishment than to seek justice.
8. This Court is not in a position to definite conclusion at this state of all the contentions of Mr. Roy But the circumstances which have been noted earlier seem to constitute more than mere inconvenience to the petitioner. By neglecting to proceed with the civil suit which would dispose of as many as 92 items of alleged misappropriation and by threatening to proceed only with four out of ninety-two items in a criminal court and that too after a great length of time seem to be unfair although permissible under the law. Since the court has discretion in the matter for the ends of justice it appears it should be exercised in favour of the accused. The two Division Bench decisions of this support such a course especially in view of the earlier civil suit in a superior court. The advantages of a prompt criminal trial are already gone after elapse of years from the point of time when the company first came to know about the incident.
In the circumstances the petition is allowed and the rule is made absolute.
