D.K.Seth, J. - (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. "2.1. He relies on the decision in M.S. Sheriff v. State of Madras, AIR 1954 SC 397. Relying on this decision, he contended that the parallel proceedings of the civil and criminal case would embarrass the applicant. This decision was supported on the ground that there is a possibility of conflict of decisions and that the criminal proceedings should be given precedence over the civil proceedings. He then relies on the decision in Tata Oil Mills v. Workmen, AIR 1965 SC 155 to contend that the accused cannot be compelled to disclose his defence in the criminal proceeding by compelling him to participate in the domestic enquiry. He then relies on the decision in M/s. Karamchand v. Union of India, AIR 1971 SC 1244 to contend that the decision of the Civil Court is binding on the Criminal Court. He next relies on the decision in Shanti Kumar Panda v. Shakuntala Devi, (2004)1 SCC 438 for the same proposition that the decision of a Civil Court is binding on a Criminal Court. He next relies on the passage from Sarkar on Evidence, Fifteenth Edition 1999 at page 845 with regard to the proposition of judgment of Criminal Court when relevant and irrelevant in civil cases and vice versa. Lastly, he relies on a decision in Bhaskar Mondal v. UCO Bank, (2002)2 Cal LT 574 (HC) to point out the yardstick where the civil cases should be stayed. On this ground he submits that the hearing of this appeal should remain stayed. He assures that in case the hearing of the appeal remains stayed, his client will not pray for interest for the period during which the hearing would remain stayed. He also contends that the Court may bind his client for expeditious disposal of the criminal cases against him." Submission on behalf of the appellant/opposite party:
(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. "3.1. He points out that this matter was heard before the other Court for days together when no such ground was taken. These were being heard before the other Division Bench for quite a long time exceeding fifty days and, ultimately, on account of certain situation the other Division Bench was pleased to release the matter after which this has since been assigned to this Court and the hearing had continued for quite some time. That apart, there is no scope of investigating whether the applicant is guilty of fraud or not so far as this appeal is concerned. Here the scope is limited to the fraud of civil nature, if there be any. 3.2. He also distinguishes the decisions cited by Mr. Roy. He also points out that there is no hard and fast rule. Relying on the decision in Sheriff's case (supra), he points out that the Court is not supposed to stay when it is inexpedient to stay a civil case at the fag end of its conclusion of trial or at the stage of conclusion. On the other hand, he relies on the decision in State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. & Ors., (1996)3 SCC 87 to contend that the approach of the Court has since changed from 1954 till date. Now the view is that the civil case is not supposed to stay on account of pendency of criminal trial as was held in the said decision. He then relies on Kamaladevi Agarwal v. State of W.B. & Ors., (2002)1 SCC 555 and points out that moreover Shieriff's case (supra) was distinguished in the said decision to the extent it has laid down the law. He relies on paragraphs 12, 15 and 17 of the said decision to support his contention. 3.3. On these grounds he prays that the application be dismissed and the hearing be continued." Reply by applicant:;