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Patna High Court · body

2000 DIGILAW 1260 (PAT)

Pranab Barua v. State

2000-11-24

S.N.PATHAK

body2000
Judgment 1. This misc. case has been filed seeking quashing of the order of the cognizance dated 2.8.99 passed in Complaint case no. 114/99. 2. Petitioners lawyer submitted that the petitioner is the Managing Director of Rackitt & Colman of India Limited, Chowringaee Road, Calcutta. As alleged by the complainant, opposite party no. 2 Mr. Binay Kumar Singhania, complainant had purchased share certificates from petitioners company. The share certificates were despatched to the complainant but the envelope containing certificates were tampered with during the course of transit and the letter which accompanied the share certificates was received by the complainant. Later the complainant came to know that share certificates were attempted to be transferred to accused no. 4, C.B. Mathumam under the forged signature of the complainant and his brother in whose names shares were purchased. 300 shares were purchased and 200 shares were attempted to be transferred to C.B. Mathuman. The complaint addressed letter to the concerned company denying his signature on the alleged letter indicating purported transfer regarding share certificate. The complainant then prosecuted the petitioner and opposite parties no. 3, 4 and 5 of this misc. case in complaint case no. 114/99. 3. It was further submitted that the earlier complaint in this connection was dismissed by the court and hence second complaint was barred. It was further submitted that nowhere in the complaint petition, it was alleged that the petitioner being the Managing Director of the Company was in any way connected with day to day working of the company and so he was not concerned with the actual issuing and despatch of the concerned share certificates. Hence the petitioner was not liable for any offence of loss of share certificates and its misappropriation or forgery committed in seeking the transfer of the certificates. 4. Before I refer to the merit of this misc. case, I would like to refer to certain decisions which the petitioners lawyer submitted for his relief sought for in this misc. case. In this connection, a decision reported in AIR 1992 (SC) 1815 was cited. 4. Before I refer to the merit of this misc. case, I would like to refer to certain decisions which the petitioners lawyer submitted for his relief sought for in this misc. case. In this connection, a decision reported in AIR 1992 (SC) 1815 was cited. The facts of this case, were that the complainant of this case was a guarantor for loan by the concerned company and he had deposited certain fixed deposits as guarantee to the concerned bank and it was stipulated in the guarantee paper that in case of failure of repayment of the loan from the loanee, the Bank shall be at liberty to realise the amount from the fixed deposits which were secured by the complainant at its maturity. The realization of the loan from the loanee became time barred and so when the bank realised the amount from the fixed deposits of the complainant and credited the remaining amount into the account of the complainant, it was alleged that the bank had committed criminal breach of trust; because when the loan had become time-barred its realization by the bank was also time barred. It was held by the Hon ble Supreme Court that although realization of the loan amount from the loanee was time barred, the Bank committed no offence, if it realised the loan amount from the fix deposits of the complainant which was secured as a security. The facts of the aforesaid case are entirely different from the facts of this case. It is so because when the loan becomes time barred, filing of a suit becomes time barred. Realization of the loan amount does not become time barred by any other means and since the fixed deposit schemes of the complainant were secured as guarantee, the bank committed no offence in realizing the amount from the fixed deposit of the complainant. 5. Another case was cited which was reported in Supreme Court Cases 113 corresponding to AIR 1977 SC 1489 . This case also is slightly different from the present case. In this case, Sessions court had discharged some of the accused persons and directed framing of charge against others. Then the accused, who were not discharged, approached the High Court which allowed the prayer and quashed the impugned order. This case also is slightly different from the present case. In this case, Sessions court had discharged some of the accused persons and directed framing of charge against others. Then the accused, who were not discharged, approached the High Court which allowed the prayer and quashed the impugned order. There was appeal before the Supreme Court which dismissed the appeal and held that the High Court was justified in quashing the order of the Sessions Judge. Among other findings, it was held by the Supreme Court that when no case or material at all is produced to satisfy the court that it will warrant conviction of the accused, the court would not be justified in framing the charge against a particular accused person. The case before this court can be distinguished on the ground that the concerned order of the Sessions Judge in reported case was passed at the time of framing of the charge and this case is at the stage of cognizance. Charge is framed on the basis of the material produced and collected by the prosecution, whereas cognizance is taken on the basis of the prima facie materials. So there is clear distinction between the order passed at the time of framing of the charge and the order passed at the time of taking cognizance of the case. So the aforesaid reported cases are not applicable to the facts and circumstances of the case. Another case was referred to which was disposed of by this court in Cr. Misc. no. 1986/92 where the petitioners were the Directors and members of the Board of Directors of a Public Limited company. Case was for non-issuing of share certificates although money was paid for purchase of the shares. It was held in the decision that since the papers regarding processing of the share certificates were not produced before the Board of Directors or that they were not in any manner concerned with day-to-day business of the company, the order of cognizance against them was quashed. Again this case may be distinguished on the ground that in the complaint case no. 114/99 (Annexure-1), it was specifically mentioned at para-6 of the complaint petition that accused no. 3 (K. K. Agrawal) in connivance with accused no. 1 (petitioner before this court) intentionally in order to defraud the complainant prepared the alleged forged transfer papers regarding alleged 200 share certificates. 114/99 (Annexure-1), it was specifically mentioned at para-6 of the complaint petition that accused no. 3 (K. K. Agrawal) in connivance with accused no. 1 (petitioner before this court) intentionally in order to defraud the complainant prepared the alleged forged transfer papers regarding alleged 200 share certificates. So question of non-statement in the complaint petition regarding complicity of the petitioner in the alleged crime is not supported by statement in the complaint petition. Moreover, when an aggrieved person is defrauded by a company, the lay man is not supposed to know what official of the company committed the fraud and what officials are, in fact, liable for the alleged offence. So aggrieved person is bound to prosecute the company through its official, whether they are the Managing Director or Registrar etc. Petitioner is admittedly Managing Director. So it cannot be accepted at this stage that he was not concerned with the issuance of share certificates purchased by the petitioner. In this case, cognizance was taken on the basis of evidence of the witnesses examined in course of enquiry. So also the order of cognizance cannot be assailed simply on the submission of the learned counsel that the petitioner is not liable for the alleged offence. 6. The order of cognizance was next challenged on the ground that similar complaint by complainant was dismissed and so the second complaint was barred. In this connection, I am of the opinion that unless the earlier complaint was dismissed on merit second complaint was not legally barred. It was not disclosed in this court that the first complaint was dismissed on merit and not in default of appearance of the complainant. 7. As a result of the aforesaid discussions and the legal and factual aspects of the case, I do not think that the order of cognizance is suffering from any illegality or irregularity. Hence this misc. case is dismissed.