KIRITKUMAR MOHANLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Two parallel proceedings one in a civil Court and another in a criminal Court often give rise to the problem (which has raised its head in the present case): Should both continue or only one ? Should the civil proceeding bar the way of the criminal one ? Would it be the right (and when ?) to gag the mouth of the criminal proceeding till the civil action comes to rest in peace ?

(2.) The trial Court has taken the view. that a criminal complaint instituted by the petitioner against respondents Nos. 2 3 and 4 in the Court of Judicial Magistrate First Class 2 Court at Baroda should be stayed till the disposal of a civil suit in the City Civil Court and the learned Extra Additional Sessions Judge has confirmed the order passed by the learned trial Magistrate for staying the criminal prosecution till the disposal of the aforesaid suit. The complainant has thereupon invoked the revisional powers of this High Court and has contended that the lower Courts were wrong in ordering the stay of the criminal case during the pendency of the civil suit.

(3.) The nature of the criminal case as also the nature of the civil suit must be taken into account before examining the question whether or not the order for stay is justified The criminal case which has been stayed has been instituted by the petitioner on June 18 1973 It is alleged that respondents Nos. 2 3 and 4 who are the officers of a limited Company doing business under the name and style of Shri Kesariya Investment Limited (hereafter referred to as the Kesariya Company ad committed certain offences some time in the first week of June 1973. The allegation inter alia is to the effect that respondents Nos. 2 3 and 4 had given an assurance to the petitioner that the entire records of Sayaji Mills Ltd Unit No 1 would be hand- ed over to one Amratlal Hargovandas and that it was only on account of the aforesaid assurance given by the said persons that the complainant had execu- ted a deed of conveyance in favour of Kesariya Company (See paragraph 11 of the complaint dated June 18 1973 It was also alleged by the petitioner in the said complaint that respondents Nos. 2 3 and 4 had never enter- tained the intention to carry out the said assurance and that but for such assurance the petitioner would not have executed a sale deed in favour of the Kesariya Company thereby according to the petitioner respondents Nos. 2 3 and 4 had committed an offence punishable under sec. 420 of the Indian Penal Code. An accusation was levelled in paragraph 20 of the said complaint that respondents Nos. 2 3 and 4 had broken open the locks of the trunks and boxes in which account-books were kept and had played mischief with the said account-books. It was alleged that this constituted an offence of mischief within the meaning of sec. 425 of the Indian Penal Code. A charge for an offence under sec. 379 of the Indian Penal Code was also levelled against them. It is the prosecution arising out of the aforesaid complaint which has been stayed by the lower Courts pursuant to the impugned order. The order of stay is to the effect that the aforesaid criminal case shall be stayed during the pendency of Civil Suit No. 1355 of 1973 instituted by Sayaji Mills Ltd. against Kesariya Company (defendant No. 1) and one Alok Prakash Jain (defendant No. 2) in the City Civil Court at Ahmedabad. The said suit has been instituted in order to claim a decree for possession in respect of books of accounts and records specified in a document dated May 26 1973 executed between the parties to the Civil Suit. In the alternative there is a prayer for appointment of a Receiver to take custody of the said record (See para- graph 21 of the plaint).