JEHANGIR PESTONJI WADIA Vs. FRAMJI RUSTOMJI WADIA

JUDGEMENT

(1.) This is an application made on behalf of the accused in certain criminal proceedings now pending against him in the Court of the Presidency Magistrate, Third Court, for stay of those proceedings pending the disposal of 0.0.C.J. Suit No. 2527 of 1927 in which the complainant is the plaintiff and the accused is the defendant in respect of the subject-matter of the alleged offence.

(2.) Two grounds have been urged on behalf of the applicant. The first ground is that the present proceeding before the Magistrate is not maintainable by reason of a compromise arrived at between the parties in respect of it. On March 4, 1927, the complainant had filed a complaint in the Presidency Magistrate's Court against the accused under Section 500, Indian Indian Penal Code, in respect of two letters which were alleged to be defamatory. While those proceedings were pending, the complainant filed the present complaint against the accused in respect of other similar letters. After the filing of the present complaint, it is alleged by the accused that a compromise was arrived at between him and the complainant to the effect that the accused should plead guilty to the subject-matter of the first complaint and in consideration of his so doing, the complainant would not press for a deterrent sentence in the first complaint and would not prosecute the second complaint. The complainant, by his affidavit, has denied that there was any such arrangement between him and the accused. From the materials before us, we are unable to say whether there was or there was not such an arrangement between the parties. If the accused relies upon any such arrangement, it may be open to him to urge it before the Presidency Magistrate and obtain his ruling on the point. The contention under this head, in our opinion, fails.

(3.) The second contention on behalf of the applicant is that pending the present complaint, the complainant, on December 14, 1927, filed a suit against him on the Original Side of this Court being Suit No. 2557 of 1927, claiming inter alia Rs. 25,000 by way of damages in respect of the publication of the alleged libel. It is urged on behalf of the applicant that if the Police Court prosecution is allowed to proceed, any conviction the complainant may obtain against him would prejudice him in his defence to the civil suit. The complaint before the Magistrate was first heard on February 25, 1928, when the accused appeared in person but did not raise this contention, There were two further hearings in March 1928 on the first of which the accused appeared in person and at the second through a pleader. The fourth hearing was on April 4 when the pleader learnt from the accused that a civil suit in respect of the subject-matter of the complaint was pending against him in the High Court. On that, the pleader applied to the Magistrate to stay the criminal proceedings pending disposal of the civil suit. The Magistrate suggested to the pleader that the application in that behalf may be made to this Court, if the accused was so advised. From the affidavit of the applicant it appears that the complainant is now in the witness-box under cross-examination.