1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.1308 OF 2008 Mr. Kamlakar Shenoy ...Applicant. v. Dr. Ashok Gandhi & Ors. ...Respondents. Mr. Prakash Naik, adv. For the Applicant. Mr. I.A.Bagaria, adv. For the Respondents. Ms. A.T.Javeri, APP for the respondent no.23/State. CORAM : J.H. BHATIA, J. DATED : JUNE 18, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 The applicant before this Court initially filed Long Cause Suit No.3746/94 in the original side of this High Court claiming 1/3rd share in the property which was allegedly purchased by himself, one Mr. N.D.Patil and Dr. Ashok Gandhi. It is his contention that they had equally contributed towards the price of the said land. Initially, only the applicant and N.D.Patil had entered into the agreement to purchase the property. Later on, Dr. Ashok Gandhi was also added as party. Conveyance deed was executed on 16.11.1992 by the owner in favour of these three persons, who were to be chief promoters and were to make construction of the building for the proposed society. In view of the 2 equal shares in the society, each of them could enroll five members in the proposed society as per understanding between them. According to the applicant, contribution of five members enrolled by him was in the bank account in the name of the applicant and N.D.Patil. Consideration amount for purchase of the land was paid from that account. N.D.Patil and Dr. Ashok Gandhi could not have enrolled more than five members each as per the understanding and as per their share in the property. However, N.D.Patil and Dr. Ashok Gandhi enrolled 9 and 10 members respectively. They also showed names of the present applicant and four others, who were enrolled as members by him as the members in the society. All this was done with the malafide intention. It is contended that they had prepared false documents, false minutes, false accounts and false certificates with intention to cheat genuine members and the applicant. They had also submitted false documents and accounts before the Registrar of co-operative societies to get the society registered. Initially, the registration of the society was rejected on the ground that minutes were not signed, consent of all the conveyance holders were not obtained, details of the promoters, contributions and details of all the books of accounts were not furnished. However, later on, they got society registered without proper compliance and without submitting 3 bonafide documents. The suit is based on these facts. 3 On the basis of same facts, applicant filed private complaint on 12th July, 2001, which was registered as Criminal Case No. 606/Misc/2001. The learned Magistrate directed investigation under Section 156(3) and after investigation, charge-sheet was filed. It may be noted that due to death of N.D.Patil, his widow Smt. Urmila Patil was made as accused no.1; Dr.Ashok Gandhi was made accused no.2 and other 18 persons, who were enrolled as members of the society by N.D.Patil and Dr.Ashok Gandhi, were also made accused in the complaint. Thus, on the complaint filed in 2001, in all 20 persons are facing criminal trial. Accused persons made an application before the trial Court to stay the proceeding on the ground that on the basis of same facts, earlier suit filed by the complainant was pending before the High Court and there could be conflicting decisions. The learned Magistrate was pleased to accept the contention and he directed to stay proceeding of criminal case till decision of the suit. That order was challenged by the complainant in the Revision Application No.1106/06. That Revision Application was rejected by the Sessions Court, and, therefore, complainant has filed this application under Section 482 of the Cr.P.C. to quash the said orders and to vacate the stay. 4 4 Mr. Naik the learned counsel for the applicant vehemently contended that merely because there could be conflicting findings on facts by the civil and criminal Courts, proceeding before the Criminal Court could not be stayed waiting the decision of the civil suit. The learned counsel contended that it is in the public interest that the trial of the criminal cases should be given precedence over the civil matter because due to the lapse of long time, witnesses may be lost and even memory of the witnesses may fail and it would adversely affect the criminal trial. The learned counsel placed reliance upon M.S.Sheriff v. State of Madras AIR 1954 SC 397. In M.S.Sheriff (Supra), Their Lordships observed as follows: “14. We were informed at the hearing that two further sets of proceedings arising out of the same facts are now pending against the appellants . One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions under S.344, I.P.C. for wrongful confinement, one against each Sub- Inspector. It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused. As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the 5 present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed. 15.As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. 16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demands that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special consideration obtaining in 6 any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished. In that case, the complainants had alleged that there was illegal detention by two police officers. They had filed criminal case as well as civil suit apparently for damages. Taking into consideration the facts of that case, it is clear that it was basically criminal case and the civil suit was only consequence of that for damages. In paragraph 15, the Supreme Court also observed that no hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal Courts is not relevant consideration. From this it is clear that whether the proceeding of criminal case be or be not stayed pending the civil matter depends on the facts and circumstances of the particular case. Court has to consider whether it will be in the public interest to stay criminal case or it will be other way round. The learned counsel also placed reliance upon Iqbal Singh Marwah and Anr. v. Meenakshi Marwah & Anr. 2005 ALL MR Criminal 1326 (S.C.) wherein the Supreme Court had reiterated 7 observations of in M.S.Sheriff (Supra). In that case, a probate proceeding was filed before the District Court and it was the contention of the complainant that the will was a forged document and on the basis of that allegation, criminal case was filed in the Court of Chief Metropolitan Magistrate, New Delhi. After examination of six witnesses on behalf of the complainant, the learned Metropolitan Magistrate held that question whether the will was genuine document or forged one was an issue before the District Judge in the probate proceeding. It was held that Section 195(1)(b)(i) and (ii) of the Cr.P.C. operate as bar for taking cognizance of the offence under Section 192,193, 463, 464, 471, 475 and 476 of the I.P.C. The main question before the Supreme Court in Iqbal Singh Marwah and Anr. (Supra) was whether Section 195(1)(b)(i) and (ii) operate as bar for taking cognizance pertaining to said offences in the given circumstances or not. 5 The learned counsel also placed reliance on Athena Financial Service Limited & Ors. v. State of Maharashtra & Ors. 2008 All MR Criminal 148. In that case, complaint was filed by the bank alleging that the accused persons had cheated the bank by making false representations and played fraud on the bank in advancing loan for particular purpose while they wanted to utilize that money only for the 8 purpose of re-financing. That loan was recalled by the bank and the criminal case was filed. Bank also approached Debts Recovery Tribunal and initiated proceeding for the recovery of the money. On behalf of the accused, application was made to stay the proceedings of the criminal case. This Court refused to stay proceedings holding that civil remedy for the recovery of the loan advanced by itself cannot be termed as bar in continuing with complaints on allegations of cheating, fraud and dishonesty, etc. It is material to note that the basic contention of the complainant/bank in that case was that accused persons had committed offence of cheating and thereby had induced the bank to advance the loan, which would not have been otherwise advanced. Contention was that the offences were committed by the accused persons and Civil proceedings for the recovery of the money were only consequential. 6 The learned counsel also placed reliance upon Nandkishor Laxminarayan Mundhada & Ors. v. Dwarkadas Murlidhar Mundhada & Anr. 2008 All M.R. Criminal 224. In that case, a will was in question before the civil as well as criminal Court. Civil suit was pending at the appellate stage. In the criminal proceeding investigation was directed under Section 156(3) of the Cr.P.C. Complaint prima-facie disclosed that the will was forged. Accused wanted complaint to be 9 quashed. This High Court refused to quash the complaint. Question was not whether Criminal case should be tried or not before the civil matter. 7 The learned counsel for the respondent/accused relied upon Thakorlal Vadilal v. Ambalal Bhikabhi Patel AIR (29) 1942 Bombay 330. Chief Justice Beaumont speaking for the Division Bench of this Court observed as follows: “This is an application to stay a criminal complaint pending the hearing of a civil suit. It is an application of a very common type; my experience shows that the Magistrate to whom the application is made, almost always refuses the stay; his decision is almost always upheld by the Sessions Judge; the Sessions Judge’s decision is nearly always supported by the government Pleader; and this Court almost always reverses that decision. This Court will consider in cases of this sort where the public interest lies, and not merely where the supposed interest of the particular complainant lies.” Of-course this authority was rendered in 1942 long before the judgment in M.S.Sheriff, which were rendered in 1954. Judgment in M.S.Sheriff was also considered by this Court in several later cases. In Dhanrajmal Govindram & Co. Pvt. Ltd. v. State of Maharashtra 1970 Mh.L.J. 873, the learned Single Judge of this Court had considered observations of the Supreme Court in M.S.Sheriff and observed as follows: “9 As far as general principles, if principles they can be called, which emerge from the 10 authorities discussed above regarding the question of stay are concerned, they are only two, and both of them are of a negative character viz., (1) that there is no hard and fast rule as to whether a criminal proceeding should be stayed or a civil proceeding should be stayed, the question being one which has to be decided on the facts and circumstances of each particular case a principle which emerges from all the authorities discussed above; and (2) that the possibility of conflicting decisions in civil and and criminal Courts is not a relevant consideration since the law itself envisages such an eventuality, a principle which forms ratio of the decision of the Supreme Court in M.S.Sheriff’s case also discussed above. Apart from these two negative “principles’ laid down by authorities, the others are not principles at all, but are merely in the nature of guide lines chalked out by judicial decisions indicating how the Court’s power to grant stay should be exercised. Some of them have only an illustrative value. Turning to these statements of law, the authorities do lay down that the primary consideration is the interests of justice which are opposed to multiplicity of proceedings on the same facts. This would imply that the Court must consider whether one of the proceedings was instituted with a view to prejudice the other, or what is the same thing, whether one of those proceedings would tend to embarrass the other, and in that connection, the question whether the criminal proceeding or the civil suit was instituted first, as well as the question as to whether the former was a public or a private prosecution are important, though not conclusive. These, however, are not the only considerations. There are other considerations which the 11 Court must also bear in mind. One such consideration is whether the object of instituting the criminal proceeding was to use the same as a lever to coerce a compromise of the civil suit, as laid down by Broomfield J. in the case of Dias v. Mahadev. According to the judgment of the Supreme Court in M.S.Sheriff’s case cited above, as interpreted by Chagla C.J. and Shah J. in their unreported judgment also cited above, some other facts and circumstances which have to be taken into consideration by the Court are, the nature of the proceeding, the conduct of the parties, the likelihood of delay in the decision of the civil suit, the possible loss of evidence and the suitability of a particular dispute being more effectively and more satisfactorily decided by the civil or the criminal Court.” 8 In Bhanu M. Vakil v. Chandra Oshiram Keswani and Another 1991 CRI.L.J.2819 , the learned Single Judge of this Court had also occasion to consider similar question. The learned Judge observed as follows in paragraph 15: “15 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 are taken up for hearing and final disposal. This, however, cannot be a universal rule. It would all depend upon the facts of each 12 case and there could be cases where the stay of criminal cases would be justified, and, in my view, this is one such case.” 9 I respectfully agree with the said observations. Thus, it is consistently held that there cannot be hard and fast rule as to whether criminal trial should take precedence over the civil matters. It would depend on the facts of each case. After perusal of the complaint in the present case, it appears that basically it is a civil dispute between the parties and according to the complainant, certain minutes of the meetings and other documents are not genuine and that Mr. N.D.Patil and Dr. Ashok Gandhi had illegally and wrongfully enrolled 18 other members well beyond their right in the property. On the basis of these allegations, he had filed civil suit in the year 1994. On the basis of same facts, he filed complaint in the Court of Metropolitan Magistrate in the year 2001 i.e., after seven years. He was keeping silent for about seven years before filing the complaint for the alleged offence committed by the accused persons. It is also material to note that out of 20 accused persons allegations of making false entries or preparing false minutes are basically against Mr. N.D.Patil and Dr. Ashok Gandhi. The learned counsel for the respondent at this stage points out that the accused no.2 Dr. Ashok Gandhi has also expired by this time. Thus, Mr. N.D.Patil and 13 Dr. Ashok Gandhi, who had allegedly committed all the crimes, have already died and now the complaint is pending against the widow of Mr. N.D.Patil as accused no.1 and 18 other accused persons, who were simply enrolled as members of the co-operative society by these two persons. Complaint has not been filed in public interest and prima-facie it appears that private complaint was filed possibly to pressurize the parties to come to terms in the civil suit, which was pending for 7 years before the complaint was filed. In fact, reading the complaint appears like reading plaint in the civil suit and not otherwise. Therefore, taking into consideration all the facts and circumstances , I find that it is in the interest of justice that the trial of the criminal case should wait till decision of the civil suit and not otherwise. 10 For the aforesaid reasons, application stands dismissed. (J.H. BHATIA,J.)