UNION OF INDIA Vs. MONORANJAN MONDAL

JUDGEMENT

(1.) This is an application for stay of hearing of this appeal, since commenced and being continued, on the ground that a criminal trial arising out of the same set of facts or transaction is pending out of the charge sheet, which the applicant came to learn about only in February 2004. This is being opposed by the appellant through Mr. Kapor while supported by Mr. Roy for the respondent. Submission of the respondent/applicant:

(2.) Mr. Balai Chandra Roy, the learned Advocate General contends that the appeal being a civil proceeding, if continued, would embarrass the criminal trial leading to a compulsion for the applicant to disclose his defence. According to him, the charges to be tried in the criminal proceedings as against the applicant are identical with those, which are at issue in this appeal. A finding on that score in this appeal being a decision of the Civil Court would be binding on the Criminal Court though the converse is not true. On account of pendency of the trial before the Criminal Court the applicant would not be able to disclose material documents to defend his case in this appeal as trained by Mr. Kapoor on behalf of the appellant. He also contends that in fitness of things it is appropriate and desirable that the civil proceedings should await the result of the criminal proceedings. He also relies on the ground of property as well as the question of conflicting decision including the question of binding nature of the decision of the Civil Court on the Criminal Court. He also contends that while deciding the appeal the Civil Court will decide the question of fraud, forgery and conspiracy though in the civil nature and though there is a thin line of distinction in the matter of proof in a criminal trial and those in a civil trial, yet under sections 42 and 43 of the Evidence Act the decision of the Civil Court would be relevant fact and would bind the Criminal Court and, as such hearing of this appeal should be stayed.

(3.) Mr. Kapoor, the learned counsel for the appellant opposing this application points out that the applicant had made all endeavours to forestall the proceedings of the criminal case and conclusion of the civil case and had initiated writ petition No.12086(W) of 1999 for quashing of the First Information Report out of which the present charge sheet been submitted. In the said proceedings the applicant had filed written notes of submissions, a copy whereof has been produced before us, the authenticity whereof has not been disputed by Mr. Roy. It appears from pages 34 and 41 of the said written notes that the applicant in the said proceedings had intended and prayed that the civil proceedings should be decided first and the criminal proceeding should await the decision of the civil proceeding. Mr. Kapoor further points out that the scope of investigation in this appeal would be completely different from those involved in the criminal trial. At the same time, there might be identical facts and some overlapping but that does not preclude the Court from proceeding with the civil case. The standard of proof in the criminal trial and that in the civil trial are completely different. The scope of investigation with regard to the fraud is relevant for the purpose of determining the civil liability which is of a civil nature and completely different from the offence of fraud as defined in the Indian Penal Code. He also points out that there is no scope of disclosing any defence or embarrassment of the applicant in the criminal trial. In the facts and circumstances of the case, where the defence has since been disclosed and all materials are before the Court and the matter was being heard finally and that the counsel for the appellant has concluded his submission and no application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) is pending and there is no further scope of disclosure of any further materials or filing any further affidavits.