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1992 Supreme(Guj) 51
Gujarat High Court
Judgename :J.N.Bhatt
BABUBHAI - Appellant
Versus
MUKTA SAGAR MANDAL - Respondent
CRIMINAL REVISION APPLICATION 506 of 1984
Decided On : 02/26/1992
Headnote:
Code of the Criminal Procedure, 1973 –Section 401, 397 – Gujarat Ownership Flats Act, 1973 – Section 42 – Petitioners has challenged the order passed by Metropolitan magistrate on a Criminal Case invoking the aids of the provisions of Secs. 397 read with Sec. 401 of the Code of the Criminal Procedure, 1973 against the order passed by the Metropolitan MagistrateCourt, Ahmedabad in Criminal case facts giving rise to the present revision, may be stated, at this stage petitioner filed Criminal Case in the Metropolitan Magistrate court, Ahmedabad against the respondent for the offences punishable under Sec. 42 of the Gujarat Ownership Flats Act, 1973 trial Magistrate after taking cognizance issued notice to the respondents evidence of the complainant was also recorded by the trial Magistrate. During the course of the recording of the evidence of the complainant, respondents who arc original accused persons in that criminal case submitted an application requesting the Criminal Court to stay the proceedings of the Criminal Case inter alia contended that the Civil Suit pending before the Civil Court, involves identical questions and on that ground the respondents requested the trial Court to stay the criminal proceedings –Held, Finding of fact needs no interference at this juncture. No doubt ordinarily when parallel, civil and criminal proceedings are pending, criminal proceedings should proceed which proceeding should be preferred in a given case will depend upon the facts of the each case Court has already given guidelines and principle in case of two parallel proceedings, so that trial Court could determine as to what approach the Court should adopt. Following guidelines enunciated by this Court earlier may be reiterated;" (I) As between a civil suit and a criminal proceeding, criminal matters require to be accorded precedence possibility of conflicting decisions in the Civil Suits on the one hand and the criminal proceedings on the other, is not a relevant consideration, inasmuch as the decision of one Court is not binding on the other or even relevant except for certain limited purposes, such as sentence or damages only relevant consideration is the likelihood of embarrassment to the accused person. (iv) The Court faced with the question of stay of criminal case till the disposal of a civil suit must take into account the circumstances that a civil suit would drag on for a number of years and that it would be undesirable to stay a criminal case from two stand-points. Firstly, public policy and public interests demand that criminal justice should be swift and sure and that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as possible is consistent with a fair and impartial trial – Petition is required to be dismissed.
( 1 ) THE petitioners has challenged the order passed by Metropolitan magistrate (Court No. 15), Ahmedabad, on 30-6-1984 in a Criminal Case No. 3198 of 1982, by invoking the aids of the provisions of Secs. 397 read with Sec. 401 of the Code of the Criminal Procedure, 1973 (code for short hereinafter ). * against the order passed by the Metropolitan Magistrate, 15th Court, Ahmedabad in Criminal case No. 3198 of 1983. The facts giving rise to the present revision, may be stated, at this stage. The petitioner filed Criminal Case No. 3198 of 1983 in the Metropolitan Magistrate court, Ahmedabad against the respondent Nos. 1 to 5 for the offences punishable under Sec. 42 of the Gujarat Ownership Flats Act, 1973. The trial Magistrate after taking cognizance issued notice to the respondents. The evidence of the complainant was also recorded by the trial Magistrate. During the course of the recording of the evidence of the complainant, respondents Nos. 1 to 5, who arc original accused persons in that criminal case submitted an application, dated 17-4-1984, requesting the Criminal Court to stay the proceedings of the Criminal Case. They, inter alia, contended that the Civil Suit No. 2048 of. 1983, pending before the Civil Court, involves identical questions and on that ground the respondents Nos. 1 to 5 requested the trial Court to stay the criminal proceedings.
( 2 ) AFTER hearing the parties learned trial Magistrate passed an order staying the further proceedings of the said Criminal Case No. 3198 of 1983, till the disposal of Regular Civil Suit No. 2048 of 1983, pending before the City Civil Court, ahmedabad. This impugned order came to be passed on 30-4-1984.
( 3 ) BEING aggreived by the said order the original complainant has come up, now, before this Court challenging its legality and validity. In the criminal complain by the petitioner-original complainant, it is alleged that the accused persons, who are respondents Nos. 1 to 5, have committed offences under Sees. 4 and 5 of the gujarat Ownership Flats Act, 1973, (act for short ). Section 4 of the Act reads as under :"notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken on ownership basis shall, before he accept any sum of money as advance payment or deposit, which shall not be more than 20 pre cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or who have taken such flats, and the agreement shall be registered under the Registration act, 1908 and such agreement shall contain the prescribed particulars, and to such agreement there shall be attached such documents or copies thereof, in respect of such matters, as may be prescribed. "section 5 of the Act reads as under :"the promoter shall maintain a separate account in any Bank of sums taken by him, from persons intending to take or who have taken flats, as advance or deposit including any sums so taken towards the share capital for the formation of a Co-operative Society or a Company, or towards the outgoings (including ground rent, if any Municipal or other local Taxes, taxes on Income, Water charges, Electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), and he shall hold the said moneys for the purposes for which they - were given and shall disburse the moneys for those purposes, and shall on demand in writing by an officer appointed by general or special order by the State Government for the purpose, make full and true disclosure of all transactions in respect of that account. "the provision of Sec, 42 of the Act provides penalty for the breach of the provisions of Sees. 4 and 5 of the Act. The Civil Suit No. 2048 of 1983 pending in the City Civil Court, Ahmedabad, is filed by the original complainant-petitioner herein for injunction, specific performance of the contract for obt
