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2000 DIGILAW 244 (CAL)

Murari Mohan Kejriwal v. State of West Bengal

2000-05-15

Basudeva Panigrahi

body2000
Judgment Basudeva Panigrahi, J. This application has been filed under section 482 of the Code of Criminal Procedure, 1973 for quashing of the proceedings in Gr. No. 240/99 pending before the learned Judicial Magistrate, Sealdah, South 24-Parganas arising out of Maniktala Police Station Case No. 20/99 dated 2.2.99, under section 420/120B of the Indian Penal Code. 2. The scaletal picture of the prosecution story is as follows: The petitioners are the directors of M/s. Shree Hanuman Foundry and Engineering Company Limited (hereinafter referred to as 'M/s. Hanuman'). The Company has been engaged for manufacturing CI Casting and other products from pig iron and holds considerable good reputation in the market. That M/s. Hanuman was allegedly approached by the de facto complainant herein namely Mr. Rabindra Singh, Managing Director of M/s. ISC Magnetics (P) Ltd. The Managing Director of ISC proposed to M/s. Hanuman that the defacto complainant company was willing to supply the said company with pig iron at long credits spreading over within six to nine months. It had further agreed that the credit limit might be up to 1.5 crores. 3. The M/s. ISC Magnetics Private Limited started supplying pig irons to M/s. Hanuman on and from 22nd October, 1996 and M/s. Hanuman used to pay to M/s. ISC within the said credit limit through cheques and on some occasions by pay orders. The petitioners M/s. Hanuman have, however, claimed that the substantial part of the amount has already been paid leaving only a small amount. 4. The private respondent Rabindra Singh, Managing Director of M/s. ISC filed an application under section 156 (3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Sealdah. Seeking direction from the learned Magistrate to the respective police station for taking appropriate action under section 156(3) Cr. P.C. 5. It has appeared that the learned Magistrate upon receipt of the said application issued a direction to Maniktala P.S. to start investigation on the matter after treating the petition as First Information Report under section 156(3) of Cr. P.C. Pursuant to the said order, the P.S. case No. 20, dated 2.2.99 under section 420/120B was registered for investigation. 6. It has appeared that the learned Magistrate upon receipt of the said application issued a direction to Maniktala P.S. to start investigation on the matter after treating the petition as First Information Report under section 156(3) of Cr. P.C. Pursuant to the said order, the P.S. case No. 20, dated 2.2.99 under section 420/120B was registered for investigation. 6. The private respondent had levelled serious allegations against the petitioners that although a cheque was issued by the petitioners in their 'Vaisya Bank' account but the said cheque was bounced and dishonoured on account of "closure of account" and "not arranged for." The petitioner, therefore, has filed this case for quashing the criminal proceeding on the ground that it being a commercial dispute, the said Court is not the appropriate authority to adjudicate upon the same. 7. In course of investigation it appears that there was a proposal for settling of their differences at the meditation of officer-in-charge, Midnapore Police Station but, however, the matter could not be subsided as the respondent did not come to terms. 8. Mr. Sekhar Basu, the learned senior advocate appearing for the petitioners has argued with great intensity of conviction that the prosecution is unsustainable in law since it is a commercial dispute and it should have been filed before the appropriate court for consideration. It has been further contended that M/s. ISC first approached the police for taking appropriate action against the petitioners but the police did not incline to register a case without specific orders of the learned Magistrate. Therefore, it should be inferred that there was no prima facie case established by M/s. ISC against the petitioners. It has been further submitted that the petitioner even on perusal of the complaint filed before the learned Magistrate, it is seen that no cognizable offence has been made out. Therefore, in the above situation the direction of the learned Magistrate to the police for initiation of the proceeding is an abuse of process of the court. The case has been initiated against these petitioners with mala fide intention only to defame their commercial achievement, which will adversely affect their business. 9. Mr. Sekhar Basu, in course of hearing has invited the attention of the Court to the report lodged before the police by the Managing Director of M/s. ISC vide annexure 'D'. The case has been initiated against these petitioners with mala fide intention only to defame their commercial achievement, which will adversely affect their business. 9. Mr. Sekhar Basu, in course of hearing has invited the attention of the Court to the report lodged before the police by the Managing Director of M/s. ISC vide annexure 'D'. It has been contended that from the police report it has appeared that no misrepresentation was made by the petitioners to the de facto complainant. Therefore, the O.C., Maniktala P.S. had correctly not registered any case upon such report and directed to obtain an order from the learned Magistrate. 10. The petitioner's further case is that there was no allegation of wrongful loss to the de-facto complainant and wrongful gain to the petitioners. The cheque which was deposited for encashment was not bounced on account of closure of transaction on 'Vaisya Bank' but due to insufficiency of fund. Had these facts been brought to the notice of the learned Judicial Magistrate, probably, the learned Magistrate would have been slow to direct the O.C., Maniktala P.S. to investigate the case under section 156(3) of Cr. P.C. The complaint does not disclose even a single cheque No. from which it could have been known about the conduct of the accused. In the aforesaid situation, therefore, the prosecution lodged against the petitioner should be quashed. 11. Mr. Basu in support of his submission cited a judgment which was an incident before the amendment of the Cr. P.C., 1973 in the case of R.P. Kapur vs. State of Punjab, reported in AIR 1960 Supreme Court 866, it appeared that the Criminal Court had inherent jurisdiction to quash a criminal proceeding even at an interlocutory stage. The Hon'ble Supreme Court had, however, deleneated the grounds upon the basis of which a criminal proceeding could be quashed at an initial stage. These grounds are quoted hereunder: "Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are: (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence as alleged; in such cases no question of appreciating evidence arise; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence as alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation mayor may not support the accusation in question. In exercising its jurisdiction under section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under section 561-A in the matter of the effect of the judicial decisions on the point." 12. After the amendment of Cr. P.C. the inherent power which was given to all the criminal courts has been withdrawn and the legislature in its wisdom conferred such power upon this court under section 482 of the Code of Criminal Procedure. 13. But, however, the salient feature of the principle decided in the above case supra remain unaltered. 14. The Supreme Court in Bhajanlal's case, reported in AIR 1992 Supreme Court page 604, has formulated the guidelines as to in which case the FIR could be quashed. 15. 13. But, however, the salient feature of the principle decided in the above case supra remain unaltered. 14. The Supreme Court in Bhajanlal's case, reported in AIR 1992 Supreme Court page 604, has formulated the guidelines as to in which case the FIR could be quashed. 15. It has been discussed in the above judgment that under sections 156, 157 and 159 of the Code if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded by his subordinate. Where the police officer does not find sufficient grounds for investigation, he can even dispensed, with the investigation altogether, but however, the Magistrate having competent jurisdiction can interfere or either direct for an investigation or in the alternative if it thinks fit, the Magistrate can always proceed or depute any other Magistrate subordinate to him to proceed or to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. The Courts have, however, no power or control to limit the sphere of investigation or interfere with the same as long as investigation proceeds in compliance with the provision relating to the same. 16. The police officer who finds reasonable suspection with regard to the commission of a cognizable offence which he is empowered under section 156 to investigate can unearth the involvement of the accused in the crime. Therefore, the expression with reasons to suspect the commission of an offence would mean the inference of the commission of a cognizable offence caused on the specific articulate facts mentioned in the FIR as well as annexures if any enclosed and other attending circumstances. 17. In the above case the broad lines have been indicated which are as follows: "As pointed out in the earlier part of this judgment section 157(1) is qualified by a proviso which is in two parts (a) and (b). Clause (a) of the proviso is only an enabling provision which we are not very much concerned. However, clause (b) of the said proviso imposes a fetter on a police officer directing him not to investigate a case where it appears to him that there is no sufficient ground in entering on an investigation. Clause (a) of the proviso is only an enabling provision which we are not very much concerned. However, clause (b) of the said proviso imposes a fetter on a police officer directing him not to investigate a case where it appears to him that there is no sufficient ground in entering on an investigation. As clause (b) of the proviso permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw his satisfaction only on the materials which were placed before him at that stage; namely, the first information together with the documents, if any, enclosed. In other words the police officer has to satisfy himself only on the allegations mentioned in the first information before he enters on an investigation as to whether those allegations do constitute a cognizable offence warranting an investigation." 18. From the above celebrated judgment of the Supreme Court what has been emerged is that the investigation of an offence is the exclusive domain of the police officers and they shall be given free hands to investigate into the cognizable offence. In strict compliance with the provisions of Chapter XII of the Code, the Courts will not justify in changing the track of investigation. 19. The Hon'ble Supreme Court has set out the broad principles by discussing the scope and ambit of the powers exercisable of this court under section 482 of the Code. They are enumerated here below: "1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." 20. Mr. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." 20. Mr. Bose, the learned advocate appearing for the petitioners has submitted that the FIR lodged against the petitioners is unbelievable, absurd and improbable, therefore, on the basis of which any prudent person cannot reach a just conclusion. It has been further submitted that this criminal proceeding was an outcome of mala fide and it was maliciously instituted with an ulterior motive of bringing disrepute to the petitioner's business. 21. Mr. Bose, the learned advocate has brought to my notice that even in the complaint petition there has been no ground of dishonest intention from which the theory of deception could have been inferred. In support of the said contention he has relied upon a judgment reported in 1999 Supreme Court Cases (Criminal) page 91 in the case of Dr. Sharma's Nurshing Home vs. Delhi Administration. Of course from the complaint filed in the above case the Hon'ble Supreme Court could not form an opinion about the existence of a prima facie case under section 420 I.P.C. Therefore, the Hon'ble Court was inclined to quash the said proceeding. There has been no straight jacket formula nor any inflexible rule of law as to in which category of cases the prosecution lodged against an accused in a cognizable offence should be quashed. But primarily the involvement of the accused in a cognizable offence should flow from the narration of the FIR or from the complaint petition. The details of such examples need not be diluted at length. 22. The learned advocate has further relied upon a judgment reported in Judgment Today 2000 (1) SC page 360 in the case of Sagar Suri vs. State of Uttar Pradesh. 23. The Hon'ble Supreme Court in the above case after discussing the matter came to the conclusion that invocation of jurisdiction under section 420 by the appellants therein was an abuse of process of law. The complaint in the above case was filed only under section 138 of the Negotiable Instruments Act and there was no allegation of corrupt practice by any of the accused to dupe the finance company by taking away with the amount of fifty lakhs. The complaint in the above case was filed only under section 138 of the Negotiable Instruments Act and there was no allegation of corrupt practice by any of the accused to dupe the finance company by taking away with the amount of fifty lakhs. Therefore, the Hon'ble Supreme Court was pleased to quash the prosecution. 24. The learned Advocate has placed further reliance upon a judgment reported in AIR 1974 Supreme Court page 1560 in the case of Anil Kumar Bose vs. State of Bihar. It is true that in a case under section 420 I.P.C. there should be adequate evidence to establish that there was mens rea but such requirement has to be gathered only from the surrending circumstances. 25. In the light of the principle discussed in the above judgment, let me advert now to the essential facts narrated in the complaint petition. In case it is found that there are essential facts constituting an offence of cheating, then, the prosecution lodged against the petitioner shall be sustained, otherwise the complainant can be directed to proceed under section 138 of the Negotiable Instruments Act. In this connection the averments made in paras 9 and 11 of the complaint petition may be quoted hereunder: "9. That be it mentioned here that the accused persons are well known that the Vysya Bank, has stopped the operation of their Company in the month of February, 1998, but after knowing fully well the matter of stopping operation of their amount, the accused persons are issuing the cheque in favour of the concern of the said complainant." "11. That be it mentioned here that the accused persons made a Criminal Conspiracy in between themselves for cheating the concern of the complainant by issuing the cheques in favour of the concern of the petitioner after knowing fully well that no scope of getting money from the Bank, but as there is no money in the bank as well as the Vysya Bank already stopped the operation of their account, which is absolutely an illegal one." 26. On a close and careful reading of the averments it is found that the complainant although has used the word 'cheating' but nowhere it has turned out how the de facto complainant had been cheated, save and except, a few cheques which had been given to the de facto complainant were dishonoured by the bank. On a close and careful reading of the averments it is found that the complainant although has used the word 'cheating' but nowhere it has turned out how the de facto complainant had been cheated, save and except, a few cheques which had been given to the de facto complainant were dishonoured by the bank. In case those cheques had been dishonoured the de facto complainant could have proceeded under section 138 of the Negotiable Instruments Act. But instead the de facto complainant started a case under section 420/120B I.P.C. upon the basis of which cognizance is also taken by the learned Magistrate. 27. Therefore, on the above situation I hereby direct the learned Magistrate to re-examine the issue whether an offence under section 138 of the Negotiable Instruments Act had been committed by the petitioner. If the learned Additional C.J.M., Sealdah is satisfied with the ingredients of offence said to have been committed under section 138 of the Negotiable Instruments Act, then, necessary cognizance may be taken under that provision. But the cognizance under section 420/120B is neither supportable by evidence nor sustainable in law. Accordingly the cognizance taken under section 420/120B is hereby quashed and I hereby remit the case to the learned Additional C.J.M., Sealdah for re-examination of the case under section 138 of the Negotiable Instruments Act. In the result the application is partly allowed. Application allowed partly.