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Criminal Appeal No. 28 of 1968, decided on 28th November 1968.

(On appeal from the order of the High Court of West Pakis tan, Lahore, dated the 3rd May 1967, in Criminal Miscellaneous No. 95 of 1967).

S. 561‑A‑Stay of criminal proceedings pending civil suit‑High Court competent to order under S. 561‑A‑Exercise of jurisdiction will depend, however, on facts of each case‑Criminal case under Ss. 379 & 420, P. P. C. in respect of a cheque alleged to have been stolen‑ Civil suit by opposite party claiming that cheque was properly drawn in his favour for valuable consideration‑Sole question thus requiring determination in Civil and Criminal Courts : Whether cheque in favour of one party was drawn by the other for valuable consideration‑Criminal proceedings, held, rightly stayed by High Court particularly where plea that civil suit was merely a counterblast had little force.

State v. Ilahi Bakhsh P L D 1965 Kar. 231; Mansharam Madhavadas v. Chetanram Rupchard and others A I R 1945 Sind 32 ; Panna Lal v. Emperor A I R 1943 All. 14; Shatrunjaya Singh v. D. S. Saxena A I R 1943 Oudh 184 ; Faiz Muhammad v. Abbas Jaffar A I R 1935 Sind 87 and Muhammad Akbar v. State P L D 1968 S C 281 ref.

Muhammad Ashraf Chaudhri, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Attorney for Appellant.

Khalilur Rahman Khan, Advocate Supreme Court instructed by Salim Ahmad Malik, Attorney for Respondent No. 1.

Abdus Samad Hashmi, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Dates of hearing : 27th and 28th November 1968.

The question raised in this appeal from the order of a learned Judge of the High Court of West Pakistan at Lahore is whether the High Court may under section 561‑A of the Code of Criminal Procedure stay proceedings in a criminal matter merely because a civil suit involving the same question of fact and law in dispute has also been instituted.

The facts are these : On the 5th April 1966, the respondent presented through his Bankers cheque No. 81516 in the sum of Rs. 1,60,000 drawn in his favour by the appellant on the Pak Bank Limited, Rawalpindi. Payment was, however, refused as the appellant had earlier reported the loss of the cheque and stopped its payment. On the 11th April 1966, the respondent issued a notice to the appellant threatening legal action for stopping payment of the cheque. It was claimed that the cheque was issued for valuable consideration viz., price of the shares of the value of Rs. 60,000 in Pak Bank Limited transferred to the appellant by the respondent and the commission earned by him for arranging purchase of other shares from third parties. On the same date a written complaint bearing the date 9th April was received by the Superintendent of Police, Rawalpindi, from the appellant, to the effect that he entrusted twenty‑five signed cheques with Mr. Noorul Haq, Manager of the Pak Bank Limited, Rawalpindi, for purchase of shares of the said Bank for him and that while fourteen cheques were utilized by Mr. Noorul Haq for the purchase of shares from various persons, one of the cheques bearing No. 81516 was found to have been stolen. He accordingly gave instructions to the Bank to stop payment of the cheque. The cheque was eventually presented for payment by the respondent through United Bank Limited, Rawalpindi, on the 5th April 1966, for payment and thereby an attempt was made by him to defraud him of the sum of Rs. 1,60,000. The complaint was forwarded to the Police Station concerned for registration of a case under sections 379 and 420 read with section 511, P. P. C. On the 23rd April 1966, the respondent filed a civil suit for recovery of Rs. 1,60,000 against the appellant raising therein the issues which were common to the criminal case, namely, whether the cheque was drawn by the appellant in favour of the respondent for valuable consideration or that it was stolen from the custody of Mr. Noorul Haq and false entries made therein to enable the respondent to draw the sum of Rs. 1,60,000 from the account of the appellant and thereby defraud him of the said sum.

After the investigation was completed report under sec tion 173, Cr. P. C., was submitted by the Police on 2‑10‑1966 in the Court of a local Magistrate. For some time both the civil and criminal cases proceeded side by side, but practical difficulties soon appeared which hampered the progress of both the action at law. The trial Magistrate directed the respondent to produce the cheque which he had filed along with the plaint in the civil suit. Withdrawal of the cheque from the file of the suit was, accordingly, not feasible. The respondent thereupon requested the Court to summon the file of the civil suit which in turn was required for examining certain witnesses on commission at Karachi. Purposeless adjournments were in the result occasioned in both the cases.

It was in these circumstances that the respondent moved the High Court for stay of the criminal case till the decision of the civil suit. The application vas opposed by the Stat counsel on the grounds that the civil suit was only a counterblast to the criminal case instituted by the appellant earlier and that the institution of the civil suit was per se not sufficient reason for the stay of the criminal case. Reliance was placed on State v. ILahi Bakhsh (P L D 1965 Kar. 231.).

In support of the application for stay the counsel for the respondent contended that the sole question arising in the civil suit was whether Mr. Manakji had drawn the cheque in favour of the respondent for valuable consideration and if that issue way proved it would have a material bearing on the determination of the criminal case. It was conceded that the judgment in the civil suit would not be binding on the criminal Court, but it was contended that nevertheless it would be a relevant fact within section 11 of the Evidence Avt end were the civil Court to hold that Mr. Manakji had drawn the cheque in favour of the respondent for valuable consideration it would to a large extent militate against the accusation of theft and attempt to cheat This in the submission of the counsel was a sufficient ground for stay of proceedings in the criminal case. reliance was placed on Mansharam Madhavadas v. Chetanram Rupchand and others (A I R 1945 Sind 32), Panna Lal v. Emperor (A I R 1943 All. 14), Shatrunjaya Singh v. D. S. Saxena (A I R 1943 Oudh 184) and Faiz Muhammad v. Abbas Jaffar (A I R 1935 Sind 87).

Keeping in view the guidelines laid down in, the afore mentioned judgments and the facts of the case the learned Judge in the High Court formed the opinion that in the circumstances of the case it was only just and proper to stay the proceedings in the criminal case pending the decision of the civil suit instituted by the respondent giving rise to common questions of fact and law.

Leave to appeal was 4ranted to consider the jurisdiction of the High Court in staying criminal matters merely because a civil litigation involving the same questions in dispute has also been instituted.

It was not disputed that the High Court has the jurisdiction under section 561‑A of the Code of Criminal Procedure to stay proceedings in a criminal case pending the decision of the civil suit in which common issues of fact and law arise for adjudication. And also that the exercise of the jurisdiction in this behalf will depend on the facts of each case. It was, however, contended that final determination of the civil suit will take a long time and in principle it was necessary to bring a criminal case to speedy end when the facts leading to it are fresh in the public mind. Reliance was placed on certain judgments from the Indian Jurisdiction which hardly advanced the argument in favour of the appellant.

The law on the subject has since been laid down in Muhammad Akbar v. State (PL41968SC281). it is observed in that case

"Normally it is true, tat criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject‑matter, But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the civil Court and the criminal Court. In such event it is equally clear that the criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed, for, it is not desirable that when the title to the property itself is in dispute, the criminal Courts should give a findtn4 in respect of the same question."

Though we refrain from expressing any opinion on the merits of the case lest it may prejudice either action at law it is relevant to mention for the limited purpose of this order hat while it was admitted that the appellant purchased shares of the value of Rs. 60,000 held by the respondent in the Pak Bank Limited his counsel was unable to point out the mode by which payment of the price of share was made. It is thus apparent that serious questions of fait and law arise in the civil suit for determination of the Court and the plea that it was a mere counterblast to the criminal case has little force. The time factor is also against the appellant's contention. As seen, the respondent presented the cheque for payment on the 5th April 1966. Payment was refused on the 61h whereupon he issued a notice to the appellant through a counsel on the 11th April 1966, threatening legal action. The complaint made by the appellant was received by the S. S. P., Rawalpindi on the some day though it bears the date 9th April 1966. . The more material date 2‑10‑1966 when the report under section 173, Cr. P. C., was submitted by the Police in the Court of a local Magistrate.

By then summons had been issued to the appellant for filing written statement in the civil suit and for settlement of issues.

The stay of proceedings in the criminal case was in the circumstances of the case plainly called for. No other ground to interfere with the impugned order of the High Court is made out.

The appeal is dismissed.

Appeal dismissed.

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