NANDU BABU Vs. RAJENDRA KUMAR SINGH

JUDGEMENT

(1.) This petition in revision is directed against an order of Shri G.S. Choubey, Munsif-Magistrate, First Class, Siwan, dated the 19th February, 1969 passed in Case No. C. 459/1968/Tr. 391/69 refusing to stay the criminal case pending in his Court.

(2.) The short facts of this case are as follows:-- The petitioner is one of the partners of a firm of financiers known as "Ganesh Narain Brij Lal Private Limited" of Calcutta. A 1964 Model Layland truck, bearing registered No. BRP 3962 (subsequently changed to BRD 2962) was taken on hire-parchase agreement by the opposite party, along with some sureties, and the price of the truck was to be paid by instalments. Only some instalments were paid, and the financier company wanted to realise the balance of the instalments, but could not succeed. So, the company brought a suit, being Commercial Cause Suit No. 1277 of 1968, on the original side of the Calcutta High Court. This suit was filed on the 21st May, 1968, after service of a notice dated the 16th May, 1968 on the opposite party, terminating the agreement. A copy of the said notico is annexure "A" to the revision application. In that suit a prayer was made for appointment of a receiver and the Court appointed a receiver on the 4th June, 1968 directing him to take charge of the truck in question. About a little more than two months after, a complaint was filed by the opposite party before the Sub-divisional Magistrate, Siwan, With an allegation that Rs. 800 had been paid to a representative of the company, but no receipt was granted to the opposite party rather representing to him that a proper receipt would be sent from the Head Office at Calcutta. Subsequently, this petitioner also approached the opposite party at Siwan, and, on his demand, the opposite party paid him Rs. 1,000, but without any receipt. This time also an assurance was given that both the receipts, that is, one for Rs. 800 and the other for Rs. 1,000 would be sent to the opposite party by the Head office at Calcutta. When these receipts did not reach the opposite party, he went to Calcutta, and made enquiries. There he came to know that the sum of Rs. 1,000 had been appropriated by this petitioner in his own account and was not deposited in the account of the, company showing payment of the instalment money by the opposite party. When the opposite party returned from Calcutta, he filed the complaint with these allegations. There was an inquiry into the matter. The learned Sub-divisional Magistrate looked into the inquiry report, and, as there was no protest, he took cognisance and transferred the case to the Munsif-Magistrate where the case is proceeding. When the petitioner was made aware of this case, he appeared in the Court of the Munsif-Magistrate and filed a petition for stay of the criminal proceeding, on the ground that the commercial suit concerning the same subject-matter was pending in the Calcutta High Court and this criminal case had been filed only with a view to harass him and to drag him to Siwan. It was also pointed out to the learned Munsif-Magistrate that the original receiver had been discharged and some official receiver had been appointed in his place by the Calcutta High Court. The learned Munsif-Magistrate rejected the prayer for stay, and hence this revision application has been filed.

(3.) Mrs. D. Lall, learned Counsel appearing for the petitioner, has argued that the entire subject-matter of dispute has to be thrashed out in the commercial suit, and hence this criminal case should be stayed for the time being. She has drawn my attention to paragraph 13 of the petition filed by the opposite party in the Calcutta High Court against the appointment of receiver. In that paragraph it has been clearly mentioned as follows:--