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Saturday, March 3, 2018

Legality of drawing proceeding when suits are pending in civil court

(From previous issue) :
Thus, proceedings in Criminal Court should be stayed or adjourned where identical issues based on same facts as in criminal cases are involved in suits pending in Civil Court (Vasu Vydier vs State of Kerala, 1975 CrLJ 494, 497 (Ker). If the object of the criminal proceedings, instituted while a civil suit in respect of the same matter is pending, is in reality to prejudice the trial of the civil suit by a preliminary enquiry into the subject matter of the suit or to coerce the accused to authorise a compromise, it will only be just and fair to stay the criminal proceedings (Shaikh Davud vs Yusuff (l954) Travan 1326).
39. It is often found that laws enacted for the general advantage do result in individual hardship and inconvenience; for example laws of Limitation, Registration, Attestation although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases.
40. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. According to BRETT, M.R., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an "absurd inconvenience" (R vs The Overseers of the Parish of Tonbridge (1884) 13 QBD 339).
41. In the case in hand, a sentence of fine under Section 138 of the Act, 1881 may result in a proceeding of execution of decree (Section 386(3) of the CrPC). Again, the same person may face an execution of decree proceeding under the Artha Rin Adalat Ain, 2003 for the same loan transactions which may together exceed the actual claimed amount.
If the accused decides to file appeal against the sentence of fine as well as the decree passed in Artha Rin Suit, he has to deposit 50% of the amount of the dishonoured cheque and 50% of the decretal amount which in aggregate would almost cover the claimed amount. This may lead to unjust enrichment and thus, the inconvenience through legal process may lead to absurdity. The ends of justice and fairness demand that the process of law must not be allowed to calise or result in 'absurd inconvenience.
42. The accused-petitioner did not make any application before the trial Court for adjournment of the criminal proceedings.
In the instant applications, he has invoked the inherent power of the High Court Division under Section 561A of the CrPC to quash the criminal proceedings. We have already held that the criminal proceedings under the Act, 1881 cannot be throttled on the ground of pendency of the Artha Rin Suit. In the instant applications, the petitioner has not made any prayer for adjournment of the criminal proceedings till disposal of the Artha Rin Suit.
43. The inherent power of the High Court Division can be exercised: (a) to make such orders as may be necessary to give effect to any order under the Code, or (b) to prevent abuse of the process of any Court, or (c) to otherwise to secure the ends of justice. It is now settled principle of law established through judicial pronouncements that the inherent power has to be exercised sparingly with circumspection and in the rarest of rare cases. For the reasons discussed above, the case in hand, in our view, falls within the category of rarest of rare cases where an order of stay of the criminal proceedings under the Act, 1881 during pendency of the Artha Rin Suit which are between the same parties and over the same loan transactions, should be passed to give effect to section 344 of the CrPC in order to prevent abuse of the process of the Court and to secure the ends of justice.
44. Hence, it is ordered that the proceedings of the respective CR cases shall remain stayed till disposal of the Artha Rin Suit No. 90 of 2012 now pending in the Court of Artha Rin Adalat, (Chittagong.
Adjournment sine die is not in accordance with law. Therefore, if the Artha Rin Suit is stayed or adjourned at the instance of the accused-petitioner, the order of stay shall stand vacated and the proceedings of the respective C.R. cases shall continue.
45. With the above observations and directions, the Rules are disposed of.
46. There is no order as to costs.