Ram Mohan Agarwal v. State — 1998 DIGILAW 212 (CAL)

JUDGMENT A.B. Mukherjee, J. In C.R.R. 3343 of 1997 the petitioner has prayed for quashing the complaint case No. 6/92 of 1997 (G.R. No. 287 of 1997) pending before the ld. Additional Chief Metropolitan Magistrate, Calcutta and also the impugned order dated 4.10.97. 2. The case of the petitioner in short is that opposite party No. 2 filed a complaint before the Ld. Additional Chief Metropolitan Magistrate, Calcutta making certain allegations against the petitioner and others and the latter sent the complaint to the officer in charge of Burrobazar P.S. for investigation by a competent officer treating the petition of complaint as an F.I.R, under section 156(3) of the Criminal Procedure Code. The facts contained in the said complaint which was numbered as C/82 of 1997 in brief is as follows:-One Shyam Mohan Agarwal agreed to sell to the company of opposite party No. 2, 1650 M.T. of wheat at Rs. 550 per M.T. and in pursuance of the agreement 90.5 lacs was sent to Shyam Mohan Agarwal by the said company. Shyam Mohan Agarwal procured wheat from various sources in Uttar Pradesh and kept the same in the business premises of the petitioner. Said Shyam Mohan Agarwal failed to send the wheat to Calcutta even after several representations by the Company. Ultimately, he sent only 643-831 M.T. of wheat to Calcutta which was received by the company. It is alleged that S.M. Agarwal in conspiracy with the present petitioner sold the remaining stock of wheat in poen market. It is further alleged that the accused persons including the petitioner agreed to refund to the company Rs. 54,30,695/- and in pursuance to the agreement the company sent two representatives but on 24.1.97 the representatives who were forcibly taken away from their place where they were staying to an un-known destination and there they were forced to sign some papers written in Hindi and a sum of Rs. 35 lacs by way of demand draft and Rs. 2 lakhs in cash were handed over to the representatives. The accused persons also refused to pay the balance. One of the representatives, namely, Shri Nemai Bar lodged a complaint with Burrobazar Police Station by a G.D. Entry No. 2496 dated 29.1.97. Another written complaint was submitted by Office Manager of the company with Burrobazar Police Station being G.D. Entry No. 2680 dated 31.1.97. The accused persons also refused to pay the balance. One of the representatives, namely, Shri Nemai Bar lodged a complaint with Burrobazar Police Station by a G.D. Entry No. 2496 dated 29.1.97. Another written complaint was submitted by Office Manager of the company with Burrobazar Police Station being G.D. Entry No. 2680 dated 31.1.97. Subsequently, the opposite party No. 2 filed another petition of complaint before the Ld. Additional Chief Metropolitan Magistrate. The Ld. Magistrate by order dated 14.2.97 directed the Burrobazar Police Station to treat the complaint as F.I.R. if no specific case was earlier started in consequence of the earlier G.D. entries. On receipt of the complaint section D, case No. 88 under sections 120B/420/409/442 and 382 of the Indian Penal Code was registered against the petitioner and three others. 3. One of the accused persons filed a revisional application challenging the continuance of the said proceeding being section D, case No. 88 as well as the order of the Ld. Additional Chief Metropolitan Magistrate dated 14.2.97. The said revisional application being 1217 of 1997 was disposed of by Justice N.K. Batabyal (as he then was) who set aside the order of the Magistrate dated 14.2.97. 4. The opposite party No. 2 filed an application before the Additional Chief Metropolitan Magistrate, Calcutta praying for sending the previous complaint to the police authority under section 156(3) of the Criminal Procedure Code and the Ld. Magistrate by order dated 19.9.97 called for a report from O.C., Burrobazar Police Station about the action taken by the earlier G.D. entries. On receipt of the said report stating that no criminal case was registered on the basis of the said G.D.s the Ld. Magistrate passed the order dated 4th of October 1997 directing the O.C. to get the matter investigated after treating the said complaint as F.I.R. 5. It is the contention of the petitioner that the agreement was entered into between Shri Shyam Mohan Agarwal and opposite party No. 2 and the money was alleged to have been sent by the company to Shyam Mohan Agarwal. The petitioner is not an agent for the said company but he was simply requested by Shyam Mohan to keep certain quantity of wheat at his business place which he did. The entire stock of wheat was never kept in his business place. The petitioner is not an agent for the said company but he was simply requested by Shyam Mohan to keep certain quantity of wheat at his business place which he did. The entire stock of wheat was never kept in his business place. It is alleged that the placing up railway truck on 26.10.96 by the opposite party No. 2 before getting the entire stock of wheat was premature since that last instalment of price was paid by demand draft on 28.10.96. It is also alleged that in view of the Dewali Festival and also a notification of the Uttar Pradesh Government to sell the stock of wheat in excess of 15 quintals the requisite quantity of wheat had to be sold as per direction of Shyam Mohan Agarwal. Shyam Mohan also informed the opposite party No. 2 about his predicament and agreed to return the remaining sum. The story of extortion committed on the representatives of opposite party No. 2 has been denied. Accordingly, the present revisional application with a view to the reliefs stated earlier. 6. In C.R.R. No. 3366 of 1997 the petitioner is opposite party No. 2 of the earlier revisional application. By means of this revisional application the petitioner has prayed for an order directing rectification of the impugned order dated 4th of October 1997 passed by the Ld. Additional Chief Metropolitan Magistrate. His case in short is that he is a Sales Executive and representative of M/s. P.K.S. Limited which is a concern for export of goods having its office in Calcutta. The company in pursuance of an agreement with respondent No. 1 and 2, namely, Harpal and Shyam Agarwal paid Rs. 90.5 lacs by demand draft. The respondent No. 3, Ram Mohan is a close associate of the other respondents. A representative was sent by the petitioner and rakes were also placed at Shahjahanpur. But inspite of the repeated request only 643.831 M.T. of wheat worth of Rs. 36,10,305/- were despatched. It is alleged that the respondent has no intimation to deliver the rest of the wheat. He also came to know that they have sold the remaining quantity of wheat to the open market since the price was running high at that time and they earned more than 30 lacs out of the transaction. Thereafter two representatives were sent by the petitioner in Uttar Pradesh for realisation of outstanding amount of Rs. He also came to know that they have sold the remaining quantity of wheat to the open market since the price was running high at that time and they earned more than 30 lacs out of the transaction. Thereafter two representatives were sent by the petitioner in Uttar Pradesh for realisation of outstanding amount of Rs. 54 lacs and odd. Those representatives were taken to an un-known place and on false pretext and after putting them in wrongful confinement they made the representatives sign on papers written in Hindi. Respondent also gave them Rs. 35 lacs by way of demand draft and Rs. 2 lacs in cash and refused to pay anything more. The representatives came back to Calcutta and made a complaint to the O.C., Burrobazar Police Station on 28.1.97. On 31.1.97 the Office Manager, Asit Bhattacharyya also lodged a complaint with the O.C. These information were kept on and the parties were asked to go to home. Thereafter, a petition of complaint was filed before the Ld. Additional Chief Metropolitan Magistrate who passed an order on 14.2.97 which was a conditional order as stated earlier. Burrobazar P.S. Case No. 88 dated 18.2.97 was accordingly registered. In course of investigation warrant of arrest as also search warrant was issued against the respondents and some police officers proceeded to Shahjahanpur in Uttar Pradesh to execute the warrants. One representative of the petitioner company also accompanied them for identification purpose. Two of the respondents were arrested but a large crowd snatched away the arrested persons after assaulting police and an F.I.R was lodged by them at the concerned P.S. Thereafter some of the respondents filed a revisional application in this Court which was disposed of by Justice N.K. Batabyal-J (as he then was) and the conditional order was set aside with certain directions. Thereafter, there is a move before the Ld. Magistrate who after obtaining a report from Burrobazar P.S. that no investigation was done following the earlier G.D. entries sent the petition of complaint for treating it as a F.I.R. and to investigate. It is alleged that the said decision of the earlier revisional application categorically mentioned that investigation cannot be nipped in the bud. It is alleged that materials collected during earlier investigation cannot be rendered useless and be ignored simply because the order under which such investigation was done was a conditional one. It is alleged that the said decision of the earlier revisional application categorically mentioned that investigation cannot be nipped in the bud. It is alleged that materials collected during earlier investigation cannot be rendered useless and be ignored simply because the order under which such investigation was done was a conditional one. It is stated that the Ld. Additional Chief Metropolitan Magistrate should have indicated in the order that materials collected with earlier investigation need be followed up. Accordingly the order of the Ld. Magistrate dated 4th of October 1997 is erroneous and it is required to be corrected by this Court. Accordingly, they filed the revisional application for such correction. 7. C.R.R. 3367 of 1997 was also filed by the Opposite party No. 2 in the first revisional application. After narrating the facts of the case he submitted that in the earlier revisional application the Ld. Judge was pleased to hold that the order issuing warrant of arrest against the opposite party No. 1 was not proper. According to the petitioner the initial order passed in the earlier application dated 1.7.87 is not in accordance with law. Accordingly, they prayed for vacating the order. The opposite party No. 2 in C.R.R. 3343 of 1997 also filed an application for vacating ex parte order dated 12.11.97 passed by this Court. After narrating the brief history of the facts and also the earlier decision in the revisional application the opposite party No. 2 has prayed for vacating the interim order of stay supported by a document alleging the prima facie nature of the allegations made in the petition of complaint which are so glaring that there should not be any order of stay of further proceeding. 8. All the three revisional applications, as well as the vacating application have been heard together. I have heard the Ld. Advocate on behalf of the petitioner, opposite party State and also the private opposite parties. It is the contention of the Ld. Advocate appearing for the petitioner in C.R.R. 3343 of 1997 that G.D.s dated 28.1.97 and 30.1.97 by some officers of the opposite party respondent disclosed commission of cognizable offence and as such the entertainment of a petition of complaint by the Ld. Additional Chief Metropolitan Magistrate and the direction to treat the same as an F.I.R. is not in accordance with law. Additional Chief Metropolitan Magistrate and the direction to treat the same as an F.I.R. is not in accordance with law. It is also argued after referring to various documents annexed to the vacating application that the dispute is at best of a civil nature. It is also argued that some of the goods had to be sold by virtue of the mandatory provision of the order promulgated by Uttar Pradesh Government and as such in the event of any dissatisfaction on the part of the private opposite party, they can demand the price of the said quantity of goods in appropriate forum but criminal proceeding does not lie since the dispute is of a civil nature. It is also argued that some of the alleged occurrence took place beyond the territorial jurisdiction of the Ld. Additional Chief Metropolitan Magistrate and as such they cannot be enquired into or investigated by Calcutta Police. 9. The Ld. Advocate appearing for opposite party No. 2 however after relying on the annexures to the vacating application submits that the petition of complaint was rightly filed and direction was rightly given by the Ld. Additional Chief Metropolitan Magistrate since no action was taken on the basis of the earlier G.D.s which were simply kept in the G.D. Book. He also argued on the strength of some decisions the second revisional application is not maintainable. The Ld. Advocate has also relied on some decisions to support this point. He relied on a decision reported in 1995, S.C. cases Criminal 1059. The relevant portion relied on by the Ld. Advocate deals with duty of the Magistrate in dealing with a police report submitted under section 173(1) of the Criminal Procedure Code. It was a case when the Investigating Officer recommended discharge of the accused and the complainant raised objection stating that case for taking cognizance was made out. In that case, the Magistrate after hearing the parties rejected the objection, which was held that in the absence of a reasoned order the order of the Magistrate need be set aside. The next case relied on by him is reported in 1997 CWN 500. It deals with the power of the High Court in the matter of quashing F.I.R. and investigation. It also deals with the power of the Police Officer to investigate the cognizable offence. The next case relied on by him is reported in 1997 CWN 500. It deals with the power of the High Court in the matter of quashing F.I.R. and investigation. It also deals with the power of the Police Officer to investigate the cognizable offence. It is stated that when F.I.R. discloses commission of a cognizable offence requiring a full-fledged investigation the Court should not quash the proceeding at that stage pending investigation. Reliance has also been placed on a decision reported in (1996) 2 S.C. Cases 37. It says that the High Court shall quash the F.I.R. or charge sheet or a complaint in exercise of its inherent power in rarest of rare cases. It further says that it should not weigh the pros and cons of the prosecution case or consider effect of non-compliance of mandatory provision of law. It also says that in case of economic offences, or offences involving moral turpitude or crimes of grave nature greater circumspection, care and caution must be borne in mind. Reliance has also been placed on a decision reported in (1990) 2 Supreme Court Cases 437 where it is said that the High Court shall not exercise the inherent power in order to review its own decision in view of the provision of Section 362 of the Criminal Procedure Code. The next case reported in J.T. 1996(2) SC 488 dealing with the power under section 482 of the Criminal Procedure Code, which says that High Court should exercise the power sparingly and cautiously. Reliance has also been placed on a decision reported in J.T. 1995 (7) S.C. 175 which says that second revision in the High Court after dismissal of the first one before a Sessions Court is not maintainable. It also says that power under section 482 of the Criminal Procedure Code cannot be utilised for any such cases where it is expressly barred by provisions of the Code. The decision reported in J.T. 1996 (1) SC 601 also deals with the duty of the High Court in the matter of exercising the inherent power. The decision reported in (1997) 2 S.C. Cases 397 amongst others deals with the provisions of sections 190/173/200 and 202 of the Criminal Procedure Code. It is stated that at the time of taking cognizance of an offence the Court should consider only the averments made in the petition of complaint or charge sheet. The decision reported in (1997) 2 S.C. Cases 397 amongst others deals with the provisions of sections 190/173/200 and 202 of the Criminal Procedure Code. It is stated that at the time of taking cognizance of an offence the Court should consider only the averments made in the petition of complaint or charge sheet. It further says that Court is not required to sift and appreciate evidence at that stage. The decision reported in 1996 Supreme Court cases (Cri) 210 also says that F.I.R., charge sheet or complaint can only be quashed in exercise of inherent power in rarest of rare cases. The decision reported in 1997 Calcutta Criminal Law Reporter (Calcutta) 207 amongst other says that in the event of petition of complaint disclosing commission of a cognizable offence prima facie, it is not proper for the Court to undertake a parallel investigation by way of quashing the proceeding pending below. 10. The factual position in its essence is not disputed. There was an agreement between Shyam Mohan Agarwal and the P.K.S. Company Limited who sent a sum of Rs. 90.5 lacs in order to get 1650 M.T. of wheat. Notwithstanding the payment, the entire quantity of wheat was not sent to Calcutta in favour of the Company when some representatives were sent to Shahjahanpur and at that point there is some dispute, while it is the case of M/s. P.K.S. Co. Ltd., that two representatives who were sent by them to receive the balance amount were wrongfully confined and under duress they were made to sign some papers written in Hindi and sum of Rs. 35 lacs in demand draft and Rs. 2 lacs in cash were given to them, the case of the other side is that there was no extortion or duress or wrongful confinement but settlement was arrived at after talk and the representatives voluntarily accepted the sums and the draft in full satisfaction of the balance sum and signed the papers accordingly. While it is the case of P.K.S. Company Ltd., that deception is there from inception, the case of the other side is that they acted in good faith, sent some quantity of specified goods but could not send the rest due to the Government Notification which compelled them to sell the stock of wheat but they paid back the entire balance amount for such non-delivery. Without leading evidence it cannot be stated whether it is a case of civil nature or there are elements of deception in the entire transaction. So far as the charges of extortion etc., are concerned it is also not the proper time and stage to deal with the same, whether the entire chain of events are considered to be arising out of one and the same transaction intimately connected with one another so as to decide on territorial jurisdiction, the same cannot be decided unless evidence is led. 11. The principle issue before this Court on which the Ld. Advocate mainly focused their attention are on the point of existence of two G.D.s one dated 28.1.97 and other dated 30.1.97 coupled with the petition of complaint subsequently filed before the Ld. Additional Chief Metropolitan Magistrate. The copy of the first G.D. appears at page-33 of the vacating application whereas the copy of the second G.D. appears at page 91 of the said application. I have scrutinised the G.D. dated 28.1.97, deals with one aspect of the matter, namely the plight of the representatives of the company at the hands of the Agarwals at Shahjahanpur, second G.D. dated 30.1.97 contains a graphic account of the entire allegations by the company against the Agarwals and prima facie discloses commission of cognizable offence. The earlier order passed by the Ld. Additional Chief Metropolitan Magistrate on 14.2.97 being a conditional order was set aside by an earlier decision in connection with revisional application being C.R.R. 1217 of 1997 on 1.7.97. While doing so, the Hon'ble Judge stated that the impugned order dated 14.2.97 cannot sustain but observe that if the Magistrate possess an order without taking a report from the concerned P.S. directing investigation afresh then there is bound to be parallel investigation which is not permissible under the Code. Accordingly, the impugned order was set aside but it was specifically mentioned that the criminal case lies and the Ld. Magistrate is to proceed according to law from the point where he has gone amiss. Accordingly, he was directed to proceed from the stage before 14.2.97. 12. The Ld. Magistrate on receipt of the said decision by order dated 11.9.97 called for a report from the concerned O.C. as to whether any action was taken on the basis of the earlier G.Ds. Accordingly, he was directed to proceed from the stage before 14.2.97. 12. The Ld. Magistrate on receipt of the said decision by order dated 11.9.97 called for a report from the concerned O.C. as to whether any action was taken on the basis of the earlier G.Ds. The report stated that both the complaints were diarised at the P.S. no criminal case was registered by the P.S. The Ld. Additional Chief Metropolitan Magistrate by order dated 4.10.97 referred the petition of complaint to the O.C., for drawing as F.I.R. under section 156(3) of the Criminal Procedure Code and to investigate. 13. The earlier decision of the revisional application as I could understand the same simply made the Ld. Magistrate conscious about his duties in the event of allegations made in the petition of complaint itself that there were earlier G.D.s with reference to the same allegations as contained in the petition of complaint and accordingly, he has been asked to proceed in accordance with law from the stage prior to 14.2.97. The step taken by the Ld. Additional Chief Metropolitan Magistrate in calling for the report from the O.C. regarding the fact of the earlier G.D.s is perfectly in accordance with law but without examining the said G.D.s in the face of the reports that no action was taken on the same, it was not proper for him to send the petition of complaint to the concerned P.S. for investigation after treating the said complaint as an F.I.R. He ought to have scrutinised the G.D.s in order to ascertain whether they or any of them disclosed prima facie commission of cognizable offence or offences and in the event of positive finding it would have been proper for him for directing the concerned O.C. to treat the G.D. which disclosed commission of such cognizable offence, first in point of time to be treated as F.I.R. and to investigate. The F.I.R. in the true sense of the term is the information received first in point of time by the police alleging commission of a cognizable offence. The Form of the F.I.R. is immaterial but the test to be applied in such a case is whether the information discloses commission of cognizable offence. If, an earlier information satisfied this description, then subsequent informations cannot be treated as F.I.R. rather they are hit by section 162 of the Criminal Procedure Code as a whole. The Form of the F.I.R. is immaterial but the test to be applied in such a case is whether the information discloses commission of cognizable offence. If, an earlier information satisfied this description, then subsequent informations cannot be treated as F.I.R. rather they are hit by section 162 of the Criminal Procedure Code as a whole. As I have stated earlier, the G.D. entry dated 30.1.97 contains all the elements necessary for being treated as F.I.R. It is exhaustive in nature and contains facts and circumstances which are narrated in the subsequent petition of complaint. Therefore, the action on the part of the Ld. Additional Chief Metropolitan Magistrate again to send the petition of complaint for treating as F.I.R. is in my opinion against the principles of law. On the other hand, direction ought to have been given by him to investigate on the basis of the said G.D. Therefore, the action on the part of the Ld. Additional Chief Metropolitan Magistrate as contained in the order dated 4.10.97 cannot sustain. 14. The next question that comes up is also the subject matter of other revisional applications, namely, the fact of the investigation and finding out of the materials in pursuance of the earlier direction of the Ld. Additional Chief Metropolitan Magistrate dated 14.2.97. It is true, that the said order was set aside by earlier decision of this Court. But it was on technical ground since the order was a conditional one. But the earlier decision categorically says that a criminal case lies and this Court cannot sit in appeal over that decision. But the earlier decision never says that the materials gathered in course of investigation pursuant to the order dated 14.2.97 by the Ld. Additional Chief Metropolitan Magistrate are to be governed. Therefore, for ends of justice the materials so far gathered by the investigating machinery following direction of the Ld. Additional Chief Metropolitan Magistrate dated 14.2.97 are valid materials and the present investigation is to start from the stage in which the investigation was left due to stay orders from this end. 15. To sum up the nature of the dispute existing between the parties whether it is of a civil nature or a criminal nature cannot be entertained at that stage when evidence are led. The distinction between the two is very fine and in the facts and circumstances it is final. 15. To sum up the nature of the dispute existing between the parties whether it is of a civil nature or a criminal nature cannot be entertained at that stage when evidence are led. The distinction between the two is very fine and in the facts and circumstances it is final. The question of territorial jurisdiction with regard to sum up the episodes cannot be considered at that stage and the question is left open. The G.D. entry dated 30.1.97 satisfies the test of a first information report and need be treated as F.I.R., The Investigation so far made pursuant to the order to Ld. Additional Chief Metropolitan Magistrate dated 14.2.97 or any other subsequent order and materials derived by such investigation are perfectly followed and the investigating machinery shall start investigation only from the stage at which the investigation had to be stopped due to stay orders from this end. The impugned order dated 4.10.97 accordingly stands set aside. All stay orders stand vacated. The divisional applications as also the vacating applications are accordingly disposed of on contest. Application disposed.