A successful prosecution under S.138 of the Negotiable Instruments Act depends on establishing specific elements, and compelling defendants to disclose their defenses in civil suits does not violate their fundamental rights under Art.20(3) of the Constitution.

These revisions arc by the defendants in two suits. According to the plaintiffs, the defendants had issued them cheques which were dishonoured on presentment. The plaintiffs had eartier initiated proceedings under S.138 of the Negotiable Instruments Act on the basis thai the defendants have committed offences within the meaning of that Act. Suits were subsequently filed for recovery of the amounts due under the

cheques. On entering appearance in the suits, respective defendants tiled applications under S.151 of the Code of Civil Procedure praying that the suits be stayed pending the criminal cases filed against them. Their contention was that if they were compelled to disclose their defence in the suits, they will be prejudiced in defending the prosecutions against them and consequently the civil court ought to stay the suits. They relied on Art.20(3) of the Constitution of India. The plaintiffs resisted the prayers for stay. They contended that the fact that prosecutions have been launched against the defendants is no ground to stay the civil suits based on the dishonour of the cheques and that there would be no violation of any of the rights of the defendants either under general law or under Art.20(3) of the Constitution.

2. The court below held that there was no substance in the contention of the defendants that if they are compelled to disclose their defences to the actions based on the cheques, they would he prejudiced in their defence of the criminal cases. The trial court therefore declined the prayer of the defendants to stay the suits pending the criminal cases and dismissed the applications filed by the defendants. The defendants challenge the orders of the court below in these revisions.

3. Learned counsel for the defendants submitted that if the suits were proceeded with and a decision rendered, the same would bind the criminal court and in such a situation the defendants ought not to be compelled to file their written statemnts in the suits. He referred to the decision of the Supreme Court in M.S. Sherifv. State of Madras (AIR 1954 SC 397) in support of the proposition that in appropriate cases civil court can stay the suits pending before it until the criminal case launched is disposed of. He also relied on the observations of the Supreme Court that a criminal trial must have precedence over a civil action. Relying on the decision of the Calcutta High Court in Apeejay Private Ltd. v. Raghava Chari Narasingham (1989 Crl.L.J. 2358) he contended that the defendants being accused in the criminal cases have the constitutional right to maintain silence and not to be compelled to be witnesses against themselves and since there is total identity of subject matter in the eartier criminal proceedings and the subsequent civil suits.further proceedings in the civil suits have to be stopped until the disposal of the criminal cases. Learned counsel for the plaintiffs on the other hand submitted that the facts of the case before the Supreme Court are clearly distinguishable and that if the offence alleged is one under S.138 of the Negotiable Instruments Act, there is no justification for staying the civil suit since the plaintiffs would also be free to sue for recovery of the amounts due to them or dishonour of the cheques. He also contended that there is no merit in the contention that the defendants cannot be forced to disclose their defences since for making out an offence under S.138 of the Negotiable Instruments Act, the existence of the conditions to attract that Section have to be clearly established and for getting a decree on the basis of the dishonoured cheques only the due issuance of the cheque and any plea by the defendants regarding absence of consideration or of discharge alone need be considered. He brought to the notice of this court the decision in Vasu Vydier v. State of Kerala (1974 KLT 24) and in V. C. Madhavan Nambiar & Ors. v. Bharathan & Ors., 1995 (1) KLJ 465 where in similar situations crimi