Keshore Deo Goenka Accused v. State — 1969 DIGILAW 305 (CAL)

JUDGMENT 1. THIS rule is for quashing proceedings pending in the Court of Shri R. P. Roy Choudhury, Presidency Magistrate, 11th Court, Calcutta, under Section 420 of the Indian Penal Code against the accused petitioner, Keshore deo Goenka in Case; No. C/998 of 1969. 2. THE facts leading to the Rule are chequered but can be put in a short compass. The parties are business men. The complainant carries on business in supplying paper cuttings to different Mills, while the accused is the chief executive and partner of Kishore and co, Agent of Orient Paper Mills Co. Ltd. of Brajaraj Nagore, Orissa. The parties are known to each other for sometime past and had several transactions before the incident in question which appears ultimately to be based on an agreement broad based upon some correspondence. On 18.1.68, the complainant filed a petition of complaint under section 420 I.P.C. against the accused in the Court of the learned Chief Presidency Magistrate, calcutta. The allegations inter alia, are that the complainant had supplied four wagons of white paper cuttings to the accused in August, 1967 and on 28. 8. 1967, after sending the last wagon when he went to the accused for the price of the paper cuttings, the latter could not be found. Subsequently when he met the accused and demanded the price from him on several occasions, he was put off on one ground or other and the complainant was thus cheated of the sum of Es. 13,688 for the value of the articles with interest therefore. The learned Chief presidency Magistrate, Calcutta examined the accused and by his order dated 18. 1. 1968 sent the matter to Shri S. N. Ghose, Presidency Magistrate, 15th court, for judicial enquiry and report. The learned Enquiring Magistrate thereupon examined three witnesses and perused numerous documents and papers filed in that context and ultimately recommended process to be issued against the accused under Section 420 I.P.C. On 4.3.68, the said report was perused by the learned Chief presidency Magistrate, Calcutta, and differing from the recommendations contained therein, he was pleased to dismiss the petition of complaint under Section 203 of the Code of Criminal Procedure. Two days thereafter, namely, on 6th March 1968, the complainant filed a fresh petition of complaint against the accused petitioner before the learned Chief Presidency magistrate Calcutta on the self same allegations charging him under Section 420 I.P.C. with only an apparently thin addition in the last paragraph of the said petition of another purported demand for payment on the 5th March 1968, significantly enough only one day before the filing of the second petition of complaint. The learned Chief presidency Magistrate thereupon issued process against the accused petitioner to stand his trial under Section 420 I.P.C. and the second chapter of the present proceedings started. On the 10th June 1968, again when the case was fixed for hearing before Shri S.N. Ghose, Presidency Magistrate, 15th court Calcutta to whom the case was transferred for disposal, the complainant was again found absent and accordingly, the learned trying Magistrate discharged the accused on that day. Later on in course of the same day an application was filed before the learned trying Magistrate on behalf of the complainant praying inter alia, for a revival of the case and thereupon the learned magistrate was pleased by his order of the same date to revive the same and direct issue of summons against the accused persons without any opportunity being given to the said accused to be heard in connection with the matter. The case entered into the third chapter. The matter thereafter was further delayed on one plea or other and ultimately on 4.9.1968 the date fixed for hearing of the said case, the complainant was again absent on a petition annexing a medical certificate that he would not be able to attend the Court within the next six months. No witnesses were present and the learned Presidency magistrate by his order of the same date discharged the accused observing, inter alia, that "it is useless to drag the case any further "There was a curious silence for seven months and curiously enough at the end of the period the complainant filed another petition of complaint in the Court of the learned Chief Presidency magistrate on 11.4.1989 against the accused with the identical allegations merely adding that there was another demand made on the 4th April 1969, about seven days before the said petition of complaint was filed. Thereupon the learned Chief Presidency Magistrate directed that the said petition of complaint was to be put up with the previous record on the 16th April 1969, on which date he examined the complaint and perused the papers including the certificates granted by the Hospital. The learned Chief Presidency Magistrate, Calcutta, ultimately adjourned the matter till 21st April, 1969 and on that date being satisfied about the sufficient cause shown for the absence of the complainant on the date of hearing in the earlier case, issued summons under Section 420 I.P.C. against the accused. The orders referred to above and the proceedings based thereupon have been impugned and formed the subject matter of the present Rule. Mr. Mrityunjoy Palit, Advocate (with Miss Anjali Chatterjee, Advocate) appearing in support of the Rule, on behalf of the accused petitioner has made a three-fold submission. The first contention of Mr. Palit is that the procedure adopted during the trial has been bad in law and also not enjoined by any procedure known to law, resulting a serious prejudice to the accused petitioner. In this context Mr. Palit submitted that the effect of the order of dismissal on the first occasion, namely, on 4th March, 1968 after a fullfledged judicial enquiry wherein several witnesses were examined and numerous documents were put in, is a bar to the entertainment of a second complaint on the same facts and a failure on the part of the learned Chief presidency Magistrate to have considered the same has resulted not only in a nonconformance to the provisions of law but also in a failure of justice. A case on the point reported in (1) AIR 1962 sc 876 (Pramatha Nath Talukdar and anr. v. Saroj Ranjan Sarkar) was cited and the same will be considered in its proper context. 3. THE second contention of Mr. Palit also relates to procedure and centres round the factum of the revival of the case on 10. 6. 1968 on the ground that the same is illegal and without jurisdiction inasmuch as the learned magistrate was functus officio after having passed the previous order discharging the accused. 4. THE third and last submission of Mr. Palit also relates to procedure and centres round the factum of the revival of the case on 10. 6. 1968 on the ground that the same is illegal and without jurisdiction inasmuch as the learned magistrate was functus officio after having passed the previous order discharging the accused. 4. THE third and last submission of Mr. Palit is on merits and is to the effect that even the third petition of complaint, disclosed no offence and in any event the dispute prima facie is one of a civil nature for a determination whereof the criminal court is not the proper forum. Mr. Kumar Krishna dutt, Advocate, appearing on behalf of the complainant opposite party No. 2, satyanarayan Dhanuka, opposed the rule. Mr. Dutt contended in the first instance that the first objection taken by Mr. Palit is more technical than real. There is no bar in law to the filiing of a fresh complaint following' an order of dismissal under Section 203 cr. P. C. The second submission of Mr. Dutt is that there is no bar in law to the order of revival that was passed by the learned Presidency Magistrate on 10. 6. 1968. Mr., Dutt finally submitted that the question of quashing the' proceedings at this stage is premature; inasmuch as uptil now only the petition of complaint has been filed and no evidence could yet be adduced on behalf of the complainant. Mr. Anath. Bandhu Pal, Advocate appearing on behalf of the State, submitted that quashing of the present proceedings at this stage would not be proper because there is no evidence on record to enable the Court to find either way on merits. On the question of revival when the court was functus officio Mr. Pal in his fairness submitted that ordinarily such an order is not maintainable in a warrant trial but having regard to the fact that the case which was thus revived ended in an. order of discharge passed by the Court on 4. 9. 1968 and the present proceedings, which are impugned having been started on 11th april 1969 on a fresh complaint, cannot really be found fault with on the ground of a defect in revival. In short, the stage being long past the objection, taken by Mr. Palit is no longer maintainable in the facts and circumstances of the present case. 9. 1968 and the present proceedings, which are impugned having been started on 11th april 1969 on a fresh complaint, cannot really be found fault with on the ground of a defect in revival. In short, the stage being long past the objection, taken by Mr. Palit is no longer maintainable in the facts and circumstances of the present case. About the other submission about the procedural defect as to whether the previous order of dismissal under Section 203 Cr. P. C, constitute bar to the entertainment of a second complaint on the same facts on the 6th March 1968. Mr. Pal submitted that the principles laid down by the Supreme Court undoubtedly stand in the way of entertaining the second complaint but the point at issue at present is not the maintainability of the second complaint but of the third one and thereby there is a difference which requires to be considered. Having heard the learned Advocates on behalf of the respective parties and on going through the materials on record, I hold that there is a considerable force behind all the three submissions of Mr. Palit. The first contention of Mr. Palit relating to procedure goes to the root of the case and effects and maintainability of the present proceedings a continuance whereof in the circumstances would be an abuse of the process of the law. A reference to the order sheet would make it abundantly clear that after the first petition of complaint was filed on the 18th January, 1968, a judicial enquiry was directed by another Presidency Magistrate who recorded the evidence of three witnesses also let in several documents and papers and ultimately sent his report. On the 4th March, 1968, the learned Chief presidency Magistrate, Calcutta, applied his mind to the facts of the case and on a perusal of the said report he differed from it and ultimately dismissed the petition of complaint under section 203 Cr. P. C. 5. THE second petition of complaint was filed two days after, on the 6th march, 1968 virtually on the self same allegations with the addition of one which is really not a material fact and had taken place after the disposal of the first complaint. Upon the said allegation, process was issued against the accused to stand trial by the learned chief Presidency Magistrate, Calcutta. Upon the said allegation, process was issued against the accused to stand trial by the learned chief Presidency Magistrate, Calcutta. The point at issue therefore is whether the factum of dismissal on the first occasion under Section 203 Cr. P. C. constitutes a bar in law to the entertainment of 'the second complaint on the same facts. A reference in this connection may be made to the case of (1)Pramatha Nath Talukdar and anr. v. Saroj Ranjan Sarkar, AIR, 1962 SC 876. Mr. Justice Kapur and mr. Justice Hidayatullah (as His Lordship then was) delivering the majority judgment in the said case observed at page 899 as follows, "an order of dismissal under Section 203, Criminal procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record on the previous proceedings, have been adduced. It cannot be said to be the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into." 6. I fully agree with the said observations and giving my anxious consideration to the fact of the present case, i find that the previous order of dismissal was neither passed on an incomplete record or on a misunderstanding of the nature of the complaint or was manifestly absurd, unjust or foolish and even no new facts have been disclosed on the subsequent occasion which could not with reasonable diligence be brought on the record. on the second occasion. A reference in the second complaint to the subsequent refusal to pay on the 5th March, 1968, really does not disclose any new material but significantly enough relates to an incident having taken place after the cause of action arose and the petition of complaint was filed thereafter, not touching the main point at issue between the parties concerned. A reference in the second complaint to the subsequent refusal to pay on the 5th March, 1968, really does not disclose any new material but significantly enough relates to an incident having taken place after the cause of action arose and the petition of complaint was filed thereafter, not touching the main point at issue between the parties concerned. I hold, therefore, that in the facts and circumstances of the case, the order of dismissal by the learned Chief Presidency Magistrate calcutta on the 4th March 1968 is a bar to the entertainment of the second complaint on the 6th March 1968 and the subsequent proceedings purporting to continue the same are bad in law and repugnant. The first contention of Mr. Palit accordingly succeeds. In view of my above findings, it might not have been necessary for me to determine the other two issues raised by Mr. Palit but having regard to the nature of the points raised, I would like to determine the same, 7. THE second contention raised by Mr. Palit also relates to procedure, namely, that the order of revival that was passed by the learned Presidency magistrate on the 10th June, 19g8, is bad in view of the earlier order that was passed by him on the self same date discharging the accused, because the complainant was absent" and because none appeared on his behalf and no hazira was filed. No witness was also present. The learned Presidency magistrate having passed the order of discharge is functus officio and the party aggrieved should have set the ball rolling by moving the higher court in revision. Instead of that the order reveals that on the same date the learned presidency Magistrate allowed the case to be revived. This order of revival is bad in law and improper and the proceedings following thereafter are also bad. The contention made in this behalf by the learned Advocate appearing on behalf of the State is that the proceedings which were revived had died a natural death, that the order of dismissal that was passed later on the 4th September, 1968 and a new chapter has started with the filing of the present complaint which cannot be possibly impugned because of the previous defect. It is difficult to agree with the said contention and as I have already observed, the two procedural defects referred to above sticks out for miles in the present proceeding rendering the same to be unwarranted and untenable. The second contention of mr. Palit also succeeds. 8. THE third contention, as I have already observed, relates to merits. Reference to the petition of complaint reveals that both the parties are business men and are known to each other. It is also abundantly clear that; there were earlier transactions between the parties transactions which were honoured. The nature of the present: case is dominantly civil, based upon an agreement which is broad based upon some correspondence. It had never been the intention of the legislature that proceedings like this should come within the ambit of Section 420 I. PC, the sine qua non whereof is the initial mens rea or blameworthy mind on the part of the accused party. At the; highest, the case is one for money and; one of breach of agreement between the parties, for the determination whereof the proper forum is the Civil Court., the third ground also taken by Mr., palit is therefore also upheld. Before I part with the case, I must observe that the history of the present proceeding is the history of unnecessary procrastination adding to law's delays. The Court of fact should have taken into consideration the undue; delay that was made in prosecuting the case on the part of the complainant, and the palpable gap of time in between the second and the third complaint. The purpose of a criminal proceeding is not the realisation of some money but to punish the delinquent for some offence committed. A reference in this connection may be made to the observations of Harries, c. J. in delivering the judgment of the division Bench in the case of (2) Matilal Chakraborly v. The King 1949 Cal. 586. I respectfully agree with the said observations and I hold that the dispute in this case also is not one that comes within the jurisdiction of the criminal court, and that a continuance of the present proceedings would be an abuse of the process of the Court. 9. 586. I respectfully agree with the said observations and I hold that the dispute in this case also is not one that comes within the jurisdiction of the criminal court, and that a continuance of the present proceedings would be an abuse of the process of the Court. 9. IN the result, I make the Rule absolute, and I quash the proceedings under Section 420 I. P. C. pending against the accused petitioner in the court of shri R. P. Roy Chowdhury, Presidency magistrate 11th Court Calcutta in Case no. C1998 of 1969.