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2000 DIGILAW 564 (CAL)

Suresh Prabhu v. Kunja Behari Santhalia

2000-11-17

Debiprasad Sengupta

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JUDGMENT Debiprasad Sengupta, J. This is an application for quashing of a proceeding being case No. 390/99 pending in the court of ld. Chief Judicial Magistrate, Howrah under section 420 of the Indian Penal Code. 2. The aforesaid proceeding was initiated on the basis of a petition of complaint filed by the complainant opposite party No.1 in the court of ld. Chief Judicial Magistrate, Howrah on 28.1.99 alleging commission of an offence punishable under section 406/420/467/468/471/474/120B of the Indian Penal Code. The allegations levelled in the petition of complaint are to the effect that the complainant purchased 18000 shares of M/s. Western Paque India Limited at Rs. 3 lacs on 10.2.97 and after purchase aforesaid shares were sent to the office of M/s. Western Paque India Limited situated at Pune, Maharashtra for transferring of the same in the name of the complainant and the said shares were duly received by the said company office. The complainant waited for a reasonable time but received no response from the said company regarding the transfer of shares. The complainant getting no response from the company personally contacted the accused Nos. 1 and 2 who are the share brokers under Calcutta Stock Exchange, Bombay Stock Exchange and National Stock Exchange, Mumbai several times. But they denied everything. It was also stated in the petition of complaint that finding no other way the complainant intimated the matter to the Chairman, Securities and Exchange Board of India, Nariman Point, Mumbai for redressal but to no effect. It was specifically stated in the petition of complaint that the accused Nos. 1 and 2 in the petition of complaint are the share brokers as aforesaid and accused No.3 is the Chairman and Managing Director and accused No.4 is the Director of the Western Paque India Limited. The present petitioner has been figured in the petition of complaint as accused No.4 as the Director of the said company. It was alleged in the petition of complaint that accused Nos. 3 and 4 who are Managing Director and Director of the said company respectively are in-charge of the day-to-day business of the said company and they committed offence along with accused Nos. 1 and 2. 3. On receipt of the said complaint the ld. It was alleged in the petition of complaint that accused Nos. 3 and 4 who are Managing Director and Director of the said company respectively are in-charge of the day-to-day business of the said company and they committed offence along with accused Nos. 1 and 2. 3. On receipt of the said complaint the ld. Chief Judicial Magistrate, Howrah by His order dated 13.1.99 took cognizance of the offence and issued process against the accused person under section 420 of the Indian Penal Code fixing 20.2.99 for service return and appearance. It is at this stage the petitioner came up before this court in revision for quashing of the said proceeding. 4. Mr. Mukherjee the ld. Advocate appearing for the petitioner submits that the petitioner is completely innocent and is not connected with the alleged offence or at all and he has been falsely implicated in this case by the complainant. Mr. Mukherjee further submits that the petitioner at no point of time was the Director of the said Company and the allegations as levelled in the petition of complaint, even if are accepted at its face value, cannot make the petitioner liable for commission of the alleged offence. It is further contended by Mr. Mukherjee that the main culprit, if the contention of the complaint are accepted, is none but one Swapan Karpas. But the complainant without implicating the said person in the present case lodged the petition of complaint implicating the present petitioner. Mr. Mukherjee submits that even if the allegations made in the complaint are accepted, then also the continuance of the aforesaid proceeding, so far it relates to the petitioner, is an abuse of the process of the court. It is the further submission of Mr. Mukherjee that the ingredients of the offence under section 420 of the Indian Penal Code are totally lacking in the present petition of complaint. 5. In support of his contention Mr. Mukherjee relies on a judgment reported in 1997 SCC (Cri) 404, State of Karnataka vs. Moniswamy and Ors. It is the further submission of Mr. Mukherjee that the ingredients of the offence under section 420 of the Indian Penal Code are totally lacking in the present petition of complaint. 5. In support of his contention Mr. Mukherjee relies on a judgment reported in 1997 SCC (Cri) 404, State of Karnataka vs. Moniswamy and Ors. In the said judgment it was held by the Hon'ble Apex Court that in exercise of power under section 482 of the Code of Criminal Procedure the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. I have gone through the judgment referred to above and in my considered opinion, the said judgment does not have any manner of application, in the present case inasmuch as from a perusal of a petition of complaint it becomes evident that a prima facie case is made out in the said complaint, The ld. Magistrate took cognizance of the offence on the basis of the petition of complaint as also the initial deposition of the witness examined by him. 6. The next judgment relied upon by Mr. Mukherjee is reported in AIR 1982 SC 949 , State of West Bengal & Ors. vs. Swapan Kr. Guha & Ors. In the said judgment it was held by the Hon'ble Apex Court that first information report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. It was further held that an investigation can be quashed if no cognizable offence is disclosed in the FIR. The said judgment also does not have any manner of application in the present case for the reasons as stated above. Mr. Mukherjee relies on a judgment reported in AIR 1988 SC 709 , wherein it was held by the Hon'ble Apex Court that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the un-controverted allegation as made prima facie establish the offence. It is also for the court to take into consideration any special features which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. As it has already been stated above that the allegations in the petition of complaint prima facie make out an offence against the petitioner and the ld. Magistrate took cognizance of the offence on the basis of a petition of complaint as also the initial deposition of the witness, it is not possible for this court to hold that continuation of the proceeding will be an abuse of the process of the court. The next judgment relied upon by Mr. Mukherjee is reported in AIR 1992 SC 604 , State of Haryana vs. Bhajanlal & Ors. In the said judgment it was held by the Hon'ble Apex Court that in following categories of cases the High Court may in exercise of powers under Article 226 of the Constitution of India or under section 482 of the Code of Criminal Procedure, interfere in the proceeding relating to cognizance of the offence to prevent abuse of the process of any court or otherwise to secure the ends of justice: 1. Where the allegations made in the First Information Report 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 FIR 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. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-congnizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. 5. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-congnizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation there on and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers quashing of FIR was not justified. 7. I have carefully gone through the judgment referred to above and in my considered opinion the present case does not come within the purview of any of the clauses as mentioned by the Hon'ble Apex Court in the said case. As it has already been stated above that the allegations in the petition of complaint discloses a cognizable offence and makes out a prima facie case against the petitioner, it will not be proper for this court to quash the proceeding at this initial stage. 8. Mrs. Chatterjee, the ld. Advocate appearing for the complainant opposite party submits that specific allegations have been made in the petition of complaint against the petitioner and the petition of complaint discloses a cognizable offence and in such circumstances this court should not interfere with the proceeding at this initial stage. The Ld. Advocate relies on a judgment reported in AIR 1996 SC 309 , Mrs. Rupan Deal Bajaj & Anr. vs. K.P.S. Gil & Anr. The Ld. Advocate relies on a judgment reported in AIR 1996 SC 309 , Mrs. Rupan Deal Bajaj & Anr. vs. K.P.S. Gil & Anr. It was held in the said judgment by the Hon'ble Apex Court that quashing of FIR or complaint by the High Court will not be justified specially in absence of finding that the allegations made in the FIR were absurd and inherently improbable. It was held in the said judgment that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Relying on the said judgment the ld. Advocate of the complainant opposite party submits that since a prima facie case is made out in the petition of complaint and since the ld. Magistrate took cognizance of the offence on perusal of the petition of complaint as also the initial deposition of the witnesses, it will not be proper for this court to quash the said proceeding at this initial stage. 9. I have heard the ld. Advocates of the respective parties. I have perused the order of taking cognizance of the offence passed by the ld. Magistrate, the initial deposition of the witnesses and other connected papers which are annexed to this revisional application and I am of the view that a prima facie case is made out against the petitioner which is sufficient for the purpose of proceeding further in the present case. The ld. Advocate of the petitioner produced before this court number of documents to show that he was not Director of the Company at the relevant time. In my opinion it will not be proper for this court to take into consideration such documents at this stage. In my opinion the present case is not a fit case for quashing of the proceeding at this initial stage. The Revisional Application accordingly fails and the same is dismissed. However, liberty is granted to the petitioner to agitate all the points before the Trial Court at the appropriate stage of the proceeding. Re : CRR No. 782 of 1999 : 10. The present application is for quashing of a proceeding being case No. 620/99 pending in the court of ld. Judicial Magistrate, 5th Court, Howrah, under section 406/420/120B of the Indian Penal Code. Re : CRR No. 782 of 1999 : 10. The present application is for quashing of a proceeding being case No. 620/99 pending in the court of ld. Judicial Magistrate, 5th Court, Howrah, under section 406/420/120B of the Indian Penal Code. Since the present application was heard analogously along with CRR No. 257/99 and since the same point is involved in the present application, the judgment delivered in CRR No. 257/99 shall also govern the present revisional application. Accordingly the present application being CRR No. 782/99 is also dismissed. Interim order granted by this court earlier stands vacated. The ld. Trial Court is directed to proceed with the Trial and to conclude the same with utmost expedition. Let urgent xerox certified copy of this order, if applied for, be supplied. Revisional applications dismissed.