The pendency of criminal proceedings under Section 138 of the Negotiable Instruments Act should not automatically result in a stay of the civil suit under Section 10 of the Code of Civil Procedure.

Dipak Misra, J. - The petitioners as plaintiff civil suit for recovery of Rs. 1,09,309/- against the defendant/non applicant in the Court VIIth Additional District Judge, Bhopal. It was pleased in the plaint that the plaintiff had a number of share certificates which he wished to dispose of and for this `purpose contacted the defendant who dealt with the purchase of shares. After due discussion the petitioner handed over the share certificates to the defendant and the defendant agreed for buying the shares for a total of Rs. 1,23,143/- and the defendant handed over a bill signed by him to the petitioner. Since the share certificates pertained to different Companies, the defendant handed over different cheques drawn on different Banks. However, when the petitioners deposited the cheques in his account in the State Bank of India only one cheque amounting to Rs. 36,562.50 was debited and the rest were dishonoured.

2. In this obtaining factual matrix the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act before the competent Court for prosecuting the defendant/ non-applicant. In spite of such proceedings having been initiated the petitioner did not get-payment of outstanding amount in question. As on attempts were made by the non-applicant to liquidate the amount under compelling circumstances the petitioner was obligated to file the suit for recovery of the amount of Rs. 1,09,309/- which included the principal sum of Rs. 70,980/- and interest at the rate of 18% per annum.

3. After notice of the suit was received by the defendant he moved an application under Section 10 of the Code of Civil Procedure for stay of the suit. It was setforth in the said application that a complaint case under Section 138 of the Negotiable Instruments Act has also been filed against him and as the cause of action is the same the suit should be stayed. The petitioner file reply to the said application resisting the prayer of the non-applicant. The learned trial Judge upon hearing the learned Counsel for the parties allowed the application and directed for stay of the suit.

4. I have heard Ms. Jai Laxmi Aiyar, learned Counsel for the petitioners and Mr. Umesh Shrivastave, learned Counsel for the respondent.

5. It is contended by the learned Counsel for the petitioners that the learned trial Judge has fallen into error by granting stay of the suit as the same runs counter to the language used under Section 10 of the Code of Civil Procedure. Her submission is that Section 10 of the code contemplates stay of a suit when the matter is directly and substantially in issue in a previously instituted suit between the parties, or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court and that being not the case, no order of stay should have been passed. It is her further submission the criminal proceeding is not a suit, the concept of stay is not attracted. She has placed reliance on the decision rendered in the case of Sai Udyog (Pvt. Ltd.), Raipur and others v. Central Bank of India, Raipur, AIR 1998 MP 191 wherein the learned Single Judge has held as under :

" If the exigencies demand, cause of action of defence for both-civil and criminal proceedings is the same and the defence of the defendant/ accused is likely to suffer serious prejudice because of particular/peculiar facts of the case, the Court can stay the civil proceedings. As a principle of law, it cannot be laid down that whenever a criminal case instituted, then the civil suit on the same cause of action must be stayed. The Court may be guided by the attending circumstances. Where a criminal action provides a cause of action for the civil action, then the Court may