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2000 DIGILAW 251 (CAL)

Maya Ghosh v. Mrityunjoy Das

2000-05-16

Nure Alam Chowdhury

body2000
Judgment Nure Alam Chowdhury, J. This revisional application is directed for setting aside the order dated 15.10.96 of taking cognizance on the petition of complaint after examination of the complainant and one witness on solemn affirmation, passed by the Ld. S.D.J.M. Alipore in case No. C-1771/96 and also for quashing of the said proceeding. Petitioner No. 1 is a sister and the petitioner Nos. 2 & 3 are the two brothers of the complainant/respondent before this court. 2. It appears from the petition of complaint filed before the Ld. S.D.J.M. Alipore on or about 15.10.96 annexed to the instant application that the complainant is now a practising Advocate of the District courts at Alipore, South 24 Parganas; that he started practice after taking voluntary retirement from his service on 10th May, 1993, when he held the post of Meteorologist Grade-I (Class-I, Gazetted Officer) and on returning to his paternal joint family house at 89A, Motilal Nehru Road, P.S. Lake, Calcutta-29. In or about 1990 the petitioners insisted the complainant to open a joint account with the petitioners in Allahabad Bank, Hazra Road Branch, and got a form signed by the complainant and the joint account was opened being SIB NC No. 8067 and the pass book and cheque book are lying with the petitioners. 3. It has been further alleged that in or about September, 1993 the petitioners entered into a criminal conspiracy to cheat the complainant and fraudulently and dishonestly represented to the complainant that the complainant would get high rate of interest if he invested the money received by him towards pension and other benefits as per the directions of the accused petitioners and the accused petitioners also further asked the complainant to deposit the three A/c payee cheques totalling a sum of Rs.1,81,405/-. 4. It has also been alleged that the accused petitioners also asked the complainant to part with Rs.90,500/- from the complainant's personal account to joint account and thus altogether a sum of Rs.2,71,905/- was deposited in the joint account from the complainant's retired benefit. It has also been alleged that the petitioner No. I, who is a sister of the complainant, a doctor and an M.D., administered some drugs by procuring prescription from one Dr. It has also been alleged that the petitioner No. I, who is a sister of the complainant, a doctor and an M.D., administered some drugs by procuring prescription from one Dr. D. Bandopadhyay of N.R.S. Hospital and the complainant has been feeling unnerved and the complainant agreed to put his signatures on some blank cheques by virtue of which the petitioner No. I, the sister withdrew large amount of money. It has also been stated in paragraph 21 of the petition of complaint that the complainant had also instituted a suit for declaration and recovery of money before the Ld. 9th Court of Asstt. District Judge at Alipore being T.S. No. 14 of 1995 against the accused petitioners and others and the 9th Court of the Ld. Asstt. District Judge by his order No.2 dated 15.2.95 was pleased to issue an interim injunction against the defendants in the said suit (who are the petitioners herein) restraining them from withdrawing money from post office and Banks till disposal of the temporary injunction. (From the plaint of the said Title Suit it appears that the complainant as plaintiff has prayed for a decree for recovery of Rs.2,71,905/- with interest of 18% and other reliefs against the present petitioners and others). 5. In the aforesaid facts and circumstances, the complaint has alleged commission of offences punishable under sections 129B/420/406 I.P.C. and cognizance has been taken, summons has been issued and the petitioners also appeared before the Ld. S.D.J.M. 6. Mr. Sekhar Basu Ld. Counsel appearing on behalf of the accused petitioners submitted that the Ld. Magistrate erred in law in examining the complainant and his wife on solemn affirmation prior to taking cognizance and as such cognizance bad in law. 7. Mr. Basu further submitted that the petition of complaint being filed relating to alleged causes of action three years back and after about one year seven months of filing Title Suit for recovery of the same sum of money which is the subject matter in the title suit, further criminal proceeding relating to some alleged causes of action will be an abuse of the process of court. It is further submitted that the proceeding before the civil court as well as before the criminal court for the same causes of action may lead to conflicting decisions and in view of the abnormal delay in filing the petition of complaint after the filing of the title suit, the criminal proceeding should be quashed in the interest of justice. 8. Mr. Joy Sengupta, appearing on behalf of the complainant/respondent submitted that the cognizance taken even if held irregular, is curable under section 460 of the Code of Criminal Procedure. It is further submitted that there is no illegality in the impugned order requiring interference by this Hon'ble Court for setting it aside or quashing the proceeding. Mr. Sengupta cited a number of decisions as follows:- (i) Rosy & Anr. vs. State of Kerala & Ors., reported in JT 2000 (1) SC 81 at page 106 paragraph 47 sub-paragraph 1(a); (ii) A.R. Antuley vs. Ramdan Nayak, 1984 SCC (Crl.) *******; (iii) Krishna Pillai vs. T.A. Rajendran & Anr., 1990 SCC (Crl.) 646 at page 647 paragraph No.4; (iv) Rashmi Kumar vs. Mahesh Kumar Dlada, 1997 SCC (Crl.) 415; (v) Mushtaq Ahmed vs. Md. Habibur Rahman Said & Ors., 1996 SCC (Crl.) 463; (vi) State of Bihar vs. Rajendra Agarwalla, 1996 SCC (Crl.) 628 etc. 9. I have carefully gone through and considered the materials on record and the respective submissions of the parties including the decisions cited by them. 10. There is no dispute that the complainant is an Advocate and the allegations are against his sister who is a doctor and an M.D. and a professor of physiology and other brothers. There is also no dispute that the complainant as plaintiff filed a Title Suit being Title Suit No. 14 of 1995 on or about 15th February, 1995 in the court of the 9th Assistant District Judge at Alipore against these petitioners and others with prayer inter alia for a decree for recovery of Rs.2,71,905/- with interest and the complainant has also obtained an order of interim injunction in connection with the said suit restraining the petitioners from withdrawing money from Post Office, Banks etc. and the petition of complaint has been filed on 15.10.96, i.e., after about one year seven months of filing the aforesaid Title Suit for the same cause of action. 11. and the petition of complaint has been filed on 15.10.96, i.e., after about one year seven months of filing the aforesaid Title Suit for the same cause of action. 11. In the aforesaid facts and circumstances, this court is of the view that further criminal proceeding in respect of the same causes of action will be an abuse of the process of court. 12. The revisional application heard as a "contested" application therefore succeeds and the impugned proceeding being case No. C 1771/96 pending before the Ld. Sub-Divisional Judicial Magistrate, Alipore, is quashed. There will be no order as to costs. 13. Department is directed to deliver urgent xerox certified copy of the order, if applied for, to the learned Advocates for the parties on their usual undertaking. Revisional application succeeds.