NEW BANK OF INDIA Vs. M/S. RADHAKISHAN

JUDGEMENT

(1.) THIS is a revision against the order dated 2 -8 -1986, passed in Civil Suit No. 11 -A/83. by the Xth Additional Judge, to the Court of District Judge, Indore, whereby the trial Court stayed the proceedings of the Civil Suit till pendency of the Criminal Proceedings pending against the defendant Nos. 1, 2, 3 and 6 under S. 407 and 420, IPC. The plaintiff filed a suit for recovery of Rs. 2,65,754.70 on the ground that the bill of exchange issued by the defendant No. 1. were dishonoured. It was, however, urged by the Bank that the defendants are jointly and sevcrally liable for payment to the Bank on various grounds made in the plaint. Prior to the filing of the suit, admittedly, criminal complaint was filed by the plaintiff Bank against defendants Nos. 1, 2, 3 and 6 under Ss. 407 and 420, I.P.C. After filing of the written -statement, the defendants moved an application under S. 151 of the Code of Civil Procedure on 1st March, 1986, wherein it was stated that the Criminal Case No. 953/82, is pending in the Court of First Judicial Magist -rate, Indore on the same allegations, which are in the suit and in case, the suit is allowed to proceed, their defence will be prejudiced. The reply was filed by the plaintiff on 5 -4 -1986. After hearing the parties, the trial Court found that allegations are common in the criminal complaint as well as in the suit. The Court relying upon the case of the Apex Court in Sheriff v. State of Madras AIR 1954 SC 397., and on another case of this Court reported in Mohanlal v. Sheo -ram C. R. No. 27/86., after considering the pleadings of the parties and the submissions made in the suit held that if the civil Suit is allowed to proceed the defendants, who are accused in the criminal proceedings will be prejudiced by disclosure of their defence.

(2.) AGGRIEVED by this order, the plaintiff Bank has come up before this Court in revision. The main contention of the learned counsel for the Bank is that as the written statement was filed, the defence has already been disclo -sed. Therefore, no question of prejudice or embarrassment in facing the criminal trial arises. Shri Dave, learned counsel for the Bank relied upon an unreported judgment of this Court delivered in M/s. Economic Packing v. M/s. Mount Metur Pharmaceuticals 1981 JLJ SN 24., decided on 9 -3 -1987.

(3.) 1983 JLJ 342. Besides, cause of action in both the cases, depends upon the Bills of exchange and delivery of goods fraudulently without payment. The remedies adopted are different. One remedy is for relisation of money and the other is for punish -ment. It cannot be said by any stretch of imagination that the defendants will not face embarrassment or prejudice, during the trial particularly at the time of recording of evidence and defence. The case of M/s. Economic Packing Corp. (supra) is of no help to the applicant Bank because the facts enumerated in the case are entirely different. There in a suit for recovery of the amount, under 0. 37, R. 3 of the Code of Civil Procedure, leave to de -fend was sought by the detendant and thereafter, the defendant moved the application under S. 151 of the Code of Civil Procedure for staying the pro -ceeding of the suit in view of the criminal proceedings pending against the defendants. After considering all the pleadings, this Court held that causes of action in suit and in criminal case are different, and as such no prejudice or embarrassement is likely to be caused to the respondents in view of the admitted position of receipt of the goods.