LOUIS PHILIP DIAS Vs. MAHADEV BARIK RAUT

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Thana recommending that the trial of a criminal complaint of cheating filed by one Louis Phillip Dias against six accused persons and pending in the Court of the First Class Magistrate of Bandra should be stayed pending the disposal of a civil suit filed by two of these accused persons against the complainant. The date of the criminal complaint was March 7, 1983. The plaint in the civil suit was presented on March 8, 1933, but appears to have been signed on the previous day.

(2.) The short facts of the case are these. The complainant, who, according to his own description of himself, is a person much addicted to strong liquor, executed a sale-deed on November 2, 1932, by which he purported to sell to accused Nos. 1 and 2 two acres and a half of land near Santa Cruz for Rs. 3,000. His allegation is that the six accused persons conspired together and took advantage of the unfortunate propensity which I have mentioned, made him intoxicated and induced him to sign this sale-deed and admit execution of it before the Sub-Registrar in Bombay. According to him the value of the land, which he purported to sell, was really Rs. 13,000 and not Rs. 3,000. His explanation of the delay in tiling the criminal complaint seems to be that he was so completely intoxicated that he had no recollection whatever of where he had been or what he had done on the occasion in question and neither he nor his relations, in spite of making inquiries, were able to discover the facts about this sale-deed until sometime in February 1933.

(3.) Before the litigation began the parties exchanged notices. On February 10 the complainant sent a notice to the accused in which he set out substantially the allegations on which his criminal complaint is based and demanded the return of the sale-deed, threatening criminal or civil proceedings in case it was not returned. On February 17, the accused replied to this denying all the allegations and in their turn threatening litigation in default of possession of the land being handed over within a week. The reliefs claimed in the civil suit are a declaration of ownership of the land and possession thereof on the basis of the sale-deed. On April 10, 1933, the accused made an application to the trial Magistrate for stay of the proceedings. That was rejected by the Magistrate. On April 24 they made an application to the Sessions Court which was disposed of by the Additional Sessions Judge. He took a different view and referred the matter to this Court. I may mention that although the Magistrate refused to stay proceedings and the Additional Sessions Judge had no power to do so and this Court has made no order staying proceedings, the proceedings before the Magistrate have nevertheless been automatically stayed by reason of the fact that the record has remained in the Sessions Court.