Judgment:
ORDER
Asish Baran Mukherjee, J.
1. The instant application referred under Sections 401 and 482, Cr.P.C. is with a view to quash a proceeding being C-2136 of 1990 under Section 138 read with Section 141 of the Negotiable Instruments Act hereinafter referred to as the N.I. Act pending in the Court of Metropolitan Magistrate, 5th Court, Calcutta.
2. The case of the petitioner is that he is one of the Directors of the Company M/s. Guru Ispat Ltd., having its office at Park Street, Calcutta. It carries on business of manufacturing steel products and for the said purpose they are required to import steel materials from abroad. In March 1990, the company imported 193.080 M.T. of sheet and in order to avoid congestion in the port due to customs clearance, the port authorities allowed the company to discharge the goods through boats. The company accordingly, entered into an agreement with M/s. Golden River Transport Corporation, of which the complainant O.P. No. 1 is the Managing Partner. The agreement was that the transport company would obtain release of the cargo from the vessel and store the same in two barges. It was also agreed that they would take all precautionary measures to keep the goods in safe condition until customs clearance is over. The amount, rental charges for this intermediate storage was settled at Rs. 6.35 per Metric Ton per day. On 9-3-90 the transport company accordingly took; discharge of the goods in good condition and kept in custody in two barges belonging to them. As there was some delay by the custom authorities in effecting clearance, the company requested the transport company from time to time through letters to take proper care of the goods since they are of high value.
3. At the request of the transport company the petitioner paid a sum of Rs. 1,00,000 (Rupees One Lakh) in cash on account of payment towards storage charge. After the customs clearance was given a cheque for Rs. 1,00,000 (Rupees One Lakh) was issued by the petitioner's company through their banker in favour of the transport company. In the process of unloading the cargo for further storing in the warehouse, it transpired that due to leakage in one of the barges, salt water entered into the same causing considerable damage to the metal sheets. This damage has been ascribed by the petitioner to the negligence of the transport company. Accordingly, they brought the fact to the knowledge of O.P. No. 1 and requested to come to an amicable settlement. Simultaneously the company also asked its banker not to honour the Cheque earlier issued by them in favour of the transport company till a survey is effected by a Government approved Charter Engineer. It revealed that 30% of total materials were damaged and the loss was to the tune of Rs. 2.85 lakhs. A debit note for the said amount dated 10-8-90 was raised by the petitioner's company against the complainant's firm. As all efforts to make amicable settlement failed the petitioner's company filed a suit being 21 of 1991 in this Court for a decree of the said amount.
4. Meanwhile, the O.P. No. 1 filed a petition of complaint before the Chief Metropolitan Magistrate, Calcutta under Section 138 read with Section 141 against the company and also the petitioner. On 15-3-91, an application for stay was filed by the company regarding the warrant of arrest issued by the trial Magistrate. Subsequently, an application under Section 205, Cr.P.C. was also made and simultaneously an application under Section 305, Cr.P.C. was made, so that the petitioner could represent the company. On 6-4-91 the prayer contained in the application under Section 305, Cr.P.C. was allowed while application under Section 205, Cr.P.C. was rejected by order dated 10-4-91. Ultimately, the petitioner surrendered and obtained bail. Thereafter, an application was made on 3-9-91 for staying of the criminal proceeding but the said prayer was rejected by order dated 31-12-91.
5. In the meantime the transport company initiated a proceeding for winding up of the petitioner's company before this Court over the self-same cause of action. The proceeding was contested by the petitioner's company and by order dated 30-7-92 the application for winding up was dismissed. Thereafter on 16-11-92 an application was filed before the Metropolitan Magistrate, 5th Court by the petitioner's company praying for dismissal of the criminal case. By order dated 5-2-93 the said prayer was rejected.
6. It is alleged that the initiation of complaint under Section 138, N.I. Act giving rise to Case No. C-2136 of 1990 is not maintainable in law in the absence of necessary notice of demand as required under Section 138 of the said Act. It is also alleged that other ingredients of Section 138, N.I. Act is also not there, hence the revisional application.
7. In spite of the prayer contained in the revisional petition for quashing the criminal case started under S, 138 read with Section 141, N.I. Act against the petitioners and this company in course of argument the learned Advocate appearing for the petitioner argued for stay of the criminal case till the decision of the civil suit instituted by them. It is argued that the civil suit was filed on 11-1-91 whereas the summons in connection with the criminal proceeding was received by them on 15-3-91. It is contended that the dispute between the parties is of a civil nature and the said dispute should be settled in course of the civil suit alone. It is contended that the civil suit should have got precedent over the criminal case having regard to the facts and circumstances as also the starting of the civil proceeding prior to the receipt of summons in the ; criminal case. It is contended by the learned Advocate that in the petition of complaint it has not been pleaded that the cheque was issued in the discharge or any debt or liability which is one of the ingredients of Section 138, N.I. Act. He also made a reference to the order passed by this Court on the petition for winding up the company started at the instance of the transport company.
8. On the other hand it is submitted for the O.P. No. 1 who alone is contensting the revisional application that the offence under Section 138, N.I. Act is a distinct and separate matter and has got no connection with the civil suit which is for recovery of money. It is argued that there is no bar in both the civil suit as well as the criminal proceeding running side by side. It is also contended that whether the cheque was issued in the matter of discharge of debt or liability is a question of fact to be decided in course of evidence. The learned Advocate has also relied on a decision reported in : [1996]2SCR463 . It is a case in which there. were two proceedings, one under Section 138, N.I. Act and another a civil suit over dishonour of cheque when the civil suit was stayed pending disposal of the criminal case by the High Court on the ground that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the civil suit. The Supreme Court held that the approach of the High Court is not correct. The other observation is that pendency of a criminal proceeding relating to the same matter, simultaneously with civil suit is no bar and criminal matters are rarely stayed and only under compelling circumstances. Unfortunately, the facts are not there in the reported decision and as such in the absence of facts, it cannot be stated as to the circumstance under which the observations were made. But this is clear from the said observation that staying of a criminal case though not the rule, may be resorted to under compelling circumstances. On the other hand, the learned Advocate representing the petitioner has relied on a decision reported in (1995) 1 Cal HN 370, in support of his contention that in the facts and circumstances the criminal proceeding should be stayed pending decision of the civil suit.
9. Giving anxious consideration to the facts and circumstances of the case, I am of opinion that although there is nothing to quash the criminal proceeding at this stage, it is all the more essential that the criminal proceeding should be stayed till the decision of the civil suit. It is not a question of playing dishonour of cheque on the ground of insufficiency of fund or that the amount exceeds the arrangement but it is a case in which the liability of the parties is to be determined first and it is to be ascertained whether the transport company made any neglect in the matter of storage of the materials alleged to have been entrusted by the petitioner's company to them and in the event of such a finding whether there was any loss sustained by the petitioner's company and if so. the extent of the said less. Obviously, this is a question to be decided within the purview of the civil proceeding since the scope of a criminal proceeding under Section 138, N.I. Act is very much limited and these questions cannot be disposed of within its purview. It is true, that the criminal proceeding was instituted a couple of months before the institution of the civil suit but as per submission of the learned Advocate for the petitioner which is not disputed by the learned Advocate for O.P. No. 1. summons. were received by the petitioner and his company, at. least after the institution of the civil suit. The matter in dispute can be settled only by a Civil Court and as such the criminal proceeding, which would from the very nature of the offence in question docs not touch the actual dispute should remain stay. This Court is not unmindful to the fact that the criminal proceedings are seldom stayed till; the decision of a civil suit over the self-same matter but having regard to the facts and circumstances which in my opinion is a compelling circumstance when for ends of justice there is no way out but to stay the criminal proceeding till disposal of the civil suit.
10. Accordingly, the revisional application stands. allowed on contest, the criminal proceeding being C-2136 of 1990 pending before the learned Metropolitan Magistrate, 5th Court, Calcutta shall remain stayed till the disposal of the civil suit being 21 of 1991 pending before the appropriate Bench of this Court.