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1997 DIGILAW 472 (CAL)

Hari Prasad Kedia v. State

1997-12-17

Nure Alam Chowdhury

body1997
JUDGMENT Nure Alam Chowdhury, J. This application under s. 482 of Cr.P.C. on behalf of the accused petitioner Hari Prasad Kedia is directed for quashing the investigation carried on pursuant to an order dated 26.9.95 passed by the Ld. Additional Chief Metropolitan Magistrate, Calcutta, under s. 156(3) of the Cr.P.C. forwarding the petition of complaint filed before him by the complainant Ram Niranjan Kedia who is the opposite party No. 2 before this court, to the Deputy Commissioner of Police (1) Detective Department Calcutta, for causing investigation, treating the complaint as FIR which has been recorded as section 'D'(DD) case No. 444 of 1995 and was under investigation by the Anti-cheating Section, Lalbazar, Calcutta. 2. By order dated 5.1.96 this court on the said application, the matter was directed to be heard as a contested application and the said investigation has remained stayed. 3. Heard the learned counsels for all the parties, perused the records. 4. It appears from the contents of the said petition of complaint that the complainant Ram Niranjan Kedia and the accused petitioner Hari Prasad Kedia belong to a very opulent business family of Calcutta and are governed by the Mitakshara School of Hindu Law and are residents of the same premises at P-3, Kalakar Street, Calcutta-7 although living separate in mess having Joint-ancestral property comprising of immovable properties including house properties in posh business areas of Calcutta and movable including diamond studded ornaments worth lakhs of rupees besides other valuable properties. The complainant Ramniranjan Kedia was the sone of Tansukhari Kedia by his first wife Godabari Devi and after the death of Godabari Devi, Tansukhari Kedia married Sabitri Devi and the accused petitioner Hari Prasad Kedia is the son of Sabitri Devi, 2nd wife of Tansukhrai Kedia but the complainant Ramniranjan Kedia was taken in adoption by Purni Debi Kedia, wife of Mahendra Lal Kedia, elder brother of Tansukhari Kedia as the couple had no male child and accordingly the relationship of step-brother between the accused Hari Prasad Kedia and the complainant turned into cousins after the said adoption. 5. 5. It has been alleged in the petition of complaint that the complainant's adoptive father expired in 1942 and thereafter the complainant's uncle Tansukhrai Kedia acting as the senior member of the Hindu Undivided Family was looking after the interest of the entire family business and in 1952, the said Tansukhrai Kedia, since deceased, opened a Bank-locker in Allahabad Bank at P-14, India Exchange Place, Calcutta-1, Main Branch, after thorough discussion/consultation with the complainant's adoptive Mother Smt. Purni Devi Kedia who expired on 27.1.92 and with the consent and approval of Smt. Purni Devi Kedia the locker was taken as a family locker. 6. It has been further alleged that prior to opening of the said locker in the Bank, Tansukhrai Kedia convinced the complainant and Smt. Purni Devi Kedia to deposit their gold ornaments in the said locker, and accordingly, as Tansukhrai Kedia was the 'Karta' and head of the Joint family and the adoptive father of the complainant was already dead, the complainant and his adoptive mother Smt. Purni Devi Kedia deposited the total gold and other valuable ornaments valued at about Rs. 10,000,00/- (Rupees ten lakhs) belonging to them in the said locker being No. C 342 and after the complainant attained majority the said Tansukhrai Kedia empowered the complainant to operate the said locker and the complainant was operating the said locker being No. C 342 prior to the death of Tansukhrai Kedia who died on 7th June, 1958 without settling about the fate of the said locker. Thereafter Sabitri Devi Kedia gave a letter dated 23.12.1988 to the complainant and his adoptive mother Purni Devi Kedia informing that the locker would be opened in presence of the complainant and Purni Devi Kedia and not otherwise and thereafter a registered agreement was made regarding the distribution in respect of the total assets and liabilities of the family containing specific clauses that the said vault shall be opened in presence of the arbitrator Sri Ramkaran Deora and the representatives of both groups but inspite of the said registered agreement the accused petitioner Hari Prasad Kedia, dishonestly suppressing all the material facts and with false averments filed an application before the learned Chief Judge, City Civil Court at Calcutta himself and on behalf of the other successors of Tansukhrai Kedia for having a letter of Administration of the estate of Tansukhrai Kedia in respect of the said locker to misappropriate all the valuable and other gold ornaments belonging to the complainant and his mother Purni Devi Kedia and obtained an ex parte order in his favour by way of letter of Administration in respect of the said Locker and removed all the gold ornaments of the complainant and his adoptive mother Purni Devi Kedia, since deceased, deposited therein as above and misappropriated or dishonestly retained or converted the same for his own use violating the trust reposed with them and/or violating the terms of the registered agreement and accordingly alleged the commission of offences by the accused-petitioner Hari Prasad Kedia and his maternal uncle Paramatma Ram Kedia punishable under Ss. 120B/406/420 IPC. 7. On the petition of complaint containing the aforesaid allegations filed before the learned Additional Chief Metropolitan Magistrate, Calcutta the complainant prayed for an order in terms of s. 156(3) of Cr.P.C. of sending the petition of complaint to D.C. (D.D.) (1) Lalbazar, for investigation by treating the petition of complaint as FIR and in terms of the prayer the Learned Additional Chief Metropolitan Magistrate, Calcutta sent the petition of complaint to the D.C. (D.D.) (1) Lalbazar, Calcutta for investigation treating the said petition of complaint as F.I.R. and accordingly section 'D' (DD) case No. 441 of 1995 has been registered and the case has been investigated by the Anti-Cheating Section, Lalbazar, Calcutta which has now been stayed by the order of this Hon'ble Court as stated above. 8. Mr. 8. Mr. Sekhar Basu, Learned Counsel appearing on behalf of the accused-petitioner submitted that the petition of complaint is signally devoid of the required materials constituting the commission of alleged offence and as such the investigation is tainted with incurable infirmity and total lack of factual foundation and as such the investigation is liable to be quashed. 9. He further submitted that the learned A.C.M.M. Calcutta passed the order for investigation mechanically without applying his mind to the allegations made in the petition of complaint as to whether a case for investigation has been made out therein resulting in harassment of the accused-petitioner in the name of investigation. 10. He further submitted that at best and at its highest the petition of complaint discloses an offence under section 193 IPC for which under s. 195(b)(i), the complaint in writing is to be made by the court of the Chief Judge or some other court to which the court is subordinate and as such no court can take cognizance on the aforesaid petition of complaint of the complainant as the complainant has no locus-standi to file such complaint and in any event the complainant cannot circumvent the order of the learned Chief Judge City Civil Court, Calcutta granting letter of Administration to the aforesaid Locker in favour of the accused petitioner Hari Prasad Kedia as has been done by the complainant because if the complainant is in any way aggrieved by the order of the Learned Chief Judge, City Civil Court at Calcutta, he could have taken steps under the provisions of the Indian Succession Act. In support of his submissions Mr. Bose drew the attention of this court to the provisions of Ss. 280, 282, 284 and 229 to the Indian Succession Act and the decisions reported in (1) 1989 Vol. 2 Crimes para 7 P. 639, (2) AIR 1953 SC 293 , (3) AIR 1966 SC 523 and (4) AIR 1969 SC 355 . 11. Mr. Bose drew the attention of this court to the provisions of Ss. 280, 282, 284 and 229 to the Indian Succession Act and the decisions reported in (1) 1989 Vol. 2 Crimes para 7 P. 639, (2) AIR 1953 SC 293 , (3) AIR 1966 SC 523 and (4) AIR 1969 SC 355 . 11. Mr. S. Ghosh, learned counsel appearing on behalf of the complainant opposite party drew the attention of this court to paragraph 19 of the affidavit-in-opposition filed on behalf of the complainant opposite party in which it has been stated that the Learned Advocate Commissioner (appointed by the City Civil Court for making inventory of the assests of the deceased Tansukhrai Kedia which are lying in the locker with the Allahabad Bank, India Exchange Place Branch Calcutta-1) but his signature in the locker register locker No. C 342 of Allahabad Bank on three occasions i.e. on 19.8.91, 23.8.91 and 11.9.91 in the page of the locker register in which it was recorded, Nominee : Ram Niranjan Kedia, and as such it was the vital duty of the Learned Advocate Commissioner to give notice to the complainant also about the date and time of the opening of the locker on 1.3.94 and the basis for such opening. It has also been stated that the ornaments in the locker contained valuable diamond of the family who were the owners of the building at P-3, Kalakar Street and 129/7, Mahatma Gandhi Road and as such the stone-covered ornaments instead of dismond as purportedly found from the report of the valuer cannot be relied upon specially in the context that the present valuation of the Jewellery and ornaments in the locker as known to the complainant as also from the close relatives is worth about Rs. 70,000,00/- (Rupees Seventy Lakhs). 12. Mr. 70,000,00/- (Rupees Seventy Lakhs). 12. Mr. Ghosh also drew the attention of this court to paragraph No. 23 of the affidavit-in-opposition in which it has been stated that the averments made in paragraph No. 22 of the application before this court that the petitioner had no knowledge of the alleged agreement and was a minor and had no education on the date of the agreement is incorrect and false from the very fact that he put his signature in English on the said agreement and from his medical reports produced before the court there cannot be any doubt that he was a major and nineteen years old at that time. 13. Mr. Ghosh also submitted that the investigation, pursuant to an order of a competent court under s. 156(3) of the Code of Criminal Procedure, should not be quashed by exercising the inherent power of this Hon'ble Court as the petition of complaint does disclose the ingredients of the offence by the petitioner and in support of his submission he cited the decision reported in AIR 1992 SC 604 (State of Haryana and others vs. Ch. Bhajanlal and others) and AIR 1992 SC 1930 (M/s. Jayant Vitamins Ltd. vs. Chaitanya Kumar and another). 14. Considering the submissions of the parties and the materials on record that court does not find any compelling and justifiable reason to interfere with the investigation which is on its way. This court is also of the view that the impugned investigation does not fall under any of the guidelines enumerated in the case reported in AIR 1992 SC 604 where this court can exercise its inherent power for quashing the investigation. This court is also of the view that any observation made by this court may effect either of the parties at any stage and as such refrains from making any further observation in the matter. 15. The application heard as a contested application is, therefore, disposed of on contest and the interim order passed by this court is vacated. There will be no order as to costs. 16. Department is directed to give xerox certified copy of this order to the learned Advocates, it the some is applied for, on an urgent basis. Application dismissed.