Amal Kumar Chatterjee, J. - (1.) This revisional application is directed against an order passed by a Metropolitan Magistrate rejecting the prayer of the petitioners, who are accused in a case before him under section 409, I.P.C., to stay the proceeding till disposal of a civil action brought by the de facto complainant who is present opposite party no. 2, against one of the petitioners and a bank in the circumstances as under.
(2.) The case of the prosecution was that the petitioners had entered into a conspiracy and induced the said opposite party to deliver 32 diesel engines for sale on a commission basis, but since this was not done even for about two years the said opposite party insisted on return of the engines. Accordingly, 19 engines were returned but the said opposite party came to know that 12 engines were hypothecated with Hindustan Commercial Bank Limited against which the petitioners had borrowed a substantial amount. In this way it was alleged that the petitioners had committed breach of trust in respect of the balance engines.
(3.) The contention of the petitioners was that they are partners of a firm which placed orders on the said opposite party for 32 engines which were delivered but it was found that the engines were not according to specification and were also old and used for a considerable period. Out of these 32 engines, 12 were sold to the firm of the petitioners, price for which was duly paid to the opposite party no. 2. He was also asked by the petitioners to take back the remaining engines and 19 were returned to the said opposite party who duly granted a receipt for the same. Now the said opposite party had brought a civil action in the City Civil Court against the present petitioner no. 3 and the Bank referred to above inter alia, for declaration of title of the said opposite party to 13 engines alleging inter alia that the petitioner no. 3 denied to have received 13 engines and converted the same to his ulterior gain. The petitioners made a prayer before the learned Magistrate for staying the criminal case till disposal of the civil suit stated above on the ground that if the criminal case is allowed to proceed there will be miscarriage of justice and the interest of the petitioners will be jeopardised. The learned Magistrate in rejecting the prayer has mainly relied upon certain observations of the Supreme Court in M.S. Sheriff's case v. State of Madras, AIR 1954 SC 397 , to the effect that as between civil and criminal proceedings the criminal matters should be given precedence. The learned Magistrate had also pointed out that the criminal case was instituted before the civil suit was filed and further the parties in the two proceedings were not identical.;