JUDGMENT - KARNIK D.G., J.:-This motion is taken out by the plaintiff under Order XII, Rule 6 of the Code of Civil Procedure for a decree on admission against the defendant No. 1.

2.The plaintiffs are the trustees of Pransukhlal Mafatlal Swimming Bath a public charitable trust registered under the Bombay Public Trust Act (for short the trust). The defendant No. 1 was employed by the trust as an Assistant Accountant. It is alleged that the defendant No. 1 misappropriated an amount of Rs. 35,36,748/- by committing serious criminal offences of theft, forgery, fabrication, cheating and breach for trust during the course of his employment as an Assistant Accountant of the trust. The plaintiff has therefore filed this suit for the recovery of the said amount of Rs. 35,36,748/- misappropriated by the defendant No. 1. The defendant No. 1 was prosecuted for the criminal breach of trust, and forgery and other offences under the Indian Penal Code. On a plea of guilty, the defendant No. 1 was convicted for the offence under sections 408, 465, 467, 468, 471 and 420 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of two years and two months on each count and pay a fine of Rs. 100/- on each count and pay fine. A copy of the order of conviction is annexed as Exhibit C to the Notice of Motion.

3.By this motion, the plaintiff prays for a decree against the defendant No. 1 under Order XII, Rule 6 of the Code of Civil Procedure, on the basis of the criminal conviction based on the plea of guilt. A finding recorded by a Criminal Court that the defendant No. 1 is guilty for the offence of cheating, criminal breach of trust, forgery etc. may not per se be binding on a Civil Court and cannot per se form the basis of a decree. An order of conviction passed by a Criminal Court cannot be treated as an admission and no decree can be passed under Order XII, Rule 6 of the Code of Civil Procedure solely on the basis of such a conviction.

4.The next question to be considered is whether an admission contained in a plea of guilty recorded by a Criminal Court be admissible as an evidence and can form a basis of a decree in a civil suit. Learned Counsel for the plaintiff however, invited my attention to the written application filed by the defendant No. 1 before the Criminal Court on 6th October, 2001 in Criminal Case No. 35/P/2000 for recording his plea of guilt. The defendant No. 1 who was an accused therein had initially pleaded not guilty. However, after hearing the evidence of the prosecution witness recorded, and perhaps after knowing the futility of his defence, made a written application before the learned Additional Chief Metropolitan Magistrate on 6th October, 2001 in which he stated:

"After recording the evidence of the prosecution witness, the accused want to plead guilty before the Court. The accused has heard and understood the recording of evidence."

On this written application by the accused (defendant No. 1) the learned Additional Chief Metropolitan Magistrate recorded the plea of guilt and convicted him for the offences under sections 408,4654, 467, 468, 471 and 420 of the Indian Penal Code as mentioned earlier. Learned Counsel for the plaintiff invited my attention to the charges to which the defendant No. 1 pleaded guilty.

"That you the accused at Greater Mumbai between 4-4-1997 to 13-7-1997 at Pransukhlal Mafatlal Hindu Swimming Bath Boat Club Trust's Office, Netaji Subhash Road, Marine Drive, Mumbai being a servant in the employment of the said trust and in such capacity entrusted with a property to wit cash of Rs. 33,96,500/- committed criminal Breach of trust with respect to the cash and thereby committed an offence punishable under section 408 of the I.P.C."

SECONDLY: That you accused at Greater Mumbai at aforesaid place, date and time, did forge the signature on TDS challans and did thereby commit an offence punishable under section 465 of the I.P.C."

6.Thus, there was a specific charge that the defendant N

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