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2001 DIGILAW 245 (CAL)

RAJ KUMAR DALMIA v. STATE OF WEST BENGAL

2001-04-27

DEBIPRASAD SENGUPTA

body2001
D. P. SENGUPTA, J. ( 1 ) THIS revisional application is directed against an order dated 11. 5. 91 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in G. R. Case No. 2845 of 1986 under section 379/114 of the Indian Penal Code arising out of Bowbazar P. S. Case No. 461 dated 22. 8. 86. ( 2 ) ACCORDING to the petitioners Rasoi Vanaspati Distributors, of which the present petitioner Nos. 1 and 2 are the partners advanced a sum of Rs. 13,40,000/- to M/s. Sree Enterprises, of which the defacto complainant Rajendra Kumar Damani was the proprietor and there was a stipulation for repayment of the said amount with interest. According to the petitioners Rs. 4,30,000/- was repaid and an amount of Rs. 9,10,000/- was balance due. According to the contention of the petitioners Damani handed over an Account Payee Pay Order for Rs. 2,75,000/- towards payment of the said outstanding amount. According to the defacto complainant, there was an agreement to the effect that on execution of a document Damani would pay Rs. 2,75,000/- in total liquidation of all their outstanding dues. But the accused/petitioners came to their office, snatched away the unexecuted document as also the A/c Payee Pay Order. ( 3 ) THE contention of the petitioners is that a search warrant was executed pursuant to which certain documents were seized by the investigating officer and if such documents are produced before the Court, there would be no case for framing of charge at all. ( 4 ) IT is pertinent to mention that when the matter was taken up for consideration of charge, a petition was filed on behalf of the accused petitioners praying for production of two G. D. Entries. On such petition the learned Magistrate by an order dated 19. 11. 87 directed production of said G. D. Entries at the stage of consideration of charge. After the said petition was disposed of the accused persons again filed a petition on 7. 12. 87. In the said petition it was contended that on 31. 10. 86 the Court issued S/w, but neither any seizure list nor any document, nor any execution report was submitted in Court. After hearing both sides such petition was rejected by an order dated 15. 2. 88. ( 5 ) CHALLENGING the aforesaid order the accused/petitioners preferred a revisional application before this Court. 10. 86 the Court issued S/w, but neither any seizure list nor any document, nor any execution report was submitted in Court. After hearing both sides such petition was rejected by an order dated 15. 2. 88. ( 5 ) CHALLENGING the aforesaid order the accused/petitioners preferred a revisional application before this Court. The revisional application was finally heard by a Division Bench of this Court and by the judgment and order dated 20. 1. 89 this Court rejected the revisional application with a direction upon the learned Magistrate to proceed with the matter expeditiously. However liberty was granted to the petitioners to agitate all the points raised in the said revisional application at the stage of framing of charge by the learned Magistrate. ( 6 ) IT appears from record that the accused petitioners filed another petition before the learned Magistrate on 11. 5. 90, in which the contention of the petitioner was that the investigating officer recorded the statement of the Manager of Bharat Overseas Bank, Camac Street Branch under section 161 Cr. PC and seized certain documents of the bank. Further contention was that the prosecution has not supplied those documents to the defence, although such documents are very important documents for the purpose of consideration of charge. At the time of hearing of the said petition filed by the defence it was submitted by the learned Public Prosecutor that the prosecution does not want to rely upon such documents and as such it is not necessary to supply such documents at the stage of framing of charge. However, the learned Magistrate after hearing both parties allowed such petition filed by the defence and directed the O/c, Bowbazar P. S. to produce the case diary before the Court on 19. 6. 90. By the said order the learned Magistrate also directed the prosecution to supply the copy of Clearing Register of Bharat Overseas Bank, Camac Street Branch which was seized by the I. O. and the statement of the Manager of the said Bank recorded by the police under section 161 Cr. PC. ( 7 ) ON the next date i. e. on 19. 6. 90 the case diary was produced before the learned Magistrate as per direction in the earlier order passed by him. PC. ( 7 ) ON the next date i. e. on 19. 6. 90 the case diary was produced before the learned Magistrate as per direction in the earlier order passed by him. On perusal of the case diary it was found by the learned Magistrate that the statement of the Manager of the Bank was not recorded by the investigating officer and the same could not be found in the case diary. The learned Magistrate also found that the clearing register, a copy of which was claimed by the defence, was never seized by the I. O. and in the seizure list such document is not at all mentioned. On the said date prosecution also filed a petition stating that the prosecution shall not rely upon such documents. The learned Magistrate after hearing both the parties, was of the view that those two documents were not at all necessary for the purpose of framing of charge and accordingly he rejected the prayer of the defence and fixed a date on 20. 7. 90 for consideration of charge. ( 8 ) ON 20. 7. 90, when the matter was fixed for consideration of charge, the accused person again filed a petition of a similar nature bringing it to the notice of the Court as to how the documents in question were very much required for the proper adjudication of the case and also praying for supply of such documents. ( 9 ) BY the impugned order dated 11. 5. 91 the learned Magistrate rejected such petition dated 20. 7. 90 filed by the defence. Against such order of rejection the petitioners have come up before this Court in revision. ( 10 ) FROM the impugned order it appears that the learned Magistrate rejected the prayer of the defence on the ground that similar prayer was earlier rejected by the learned Magistrate by an earlier order dated 19. 6. 90 and the earlier order of rejection was never challenged by the defence in any higher Court. ( 11 ) MR. Sekhar Bose, learned Advocate appearing for the petitioners submits that by an order dated 11. 5. 90 the learned Magistrate, on being satisfied that such documents were seized by the I. O. and that those documents were necessary for the purpose of consideration of charge, directed the prosecution supply such copies of documents to the defence. ( 11 ) MR. Sekhar Bose, learned Advocate appearing for the petitioners submits that by an order dated 11. 5. 90 the learned Magistrate, on being satisfied that such documents were seized by the I. O. and that those documents were necessary for the purpose of consideration of charge, directed the prosecution supply such copies of documents to the defence. But the same Magistrate by a subsequent order dated 19. 6. 90 held that such documents are not necessary to be supplied to the defence. According to Mr. Bose such an order can never be sustained in law. But I am unable to accept such contention. On perusal of the order dated 11. 5. 90 it becomes clear that such order was passed by the learned Magistrate without going through the case diary, for which the learned Magistrate directed the O/c of the Bowbazar police station to produce the case diary on 19. 6. 90. On 19. 6. 90 when the case diary was produced before the learned Magistrate it was detected by the learned Magistrate that such documents was never seized and the statement of the Manager of the Bank was not recorded by the I. O. and as such the question of supplying those documents did not arise. Accordingly prayer of the defence was rejected. Apart from that, the order dated 19. 6. 90 reached its finality as the same was not challenged before any higher Court. So, in my considered view the learned Magistrate committed no error in rejecting the prayer of the defence by the impugned order dated 11. 5. 91. ( 12 ) MR. Bose relies on a judgment of this Court reported in 1993 (1) CHN 440 (Brojendra Nath Koley and Anr. v. The State ). In the said judgment it appears that the short point which was for consideration was whether at the stage of consideration of framing of charge by the Court the accused can demand production, inspection or supply of copies of documents, which were seized by the police during investigation, but copies of which were not supplied to the accused on the ground that the prosecution would not rely upon those documents during trial. It was held by the learned single Judge of this Court that even at the stage of consideration of framing of charge, the accused is entitled to a hearing on the question as to whether charge should be framed on the basis of the materials on record. Therefore, to make the hearing meaningful and purposeful it is only fit and proper that the accused should have an opportunity to demand production of a document even at that stage if such document has any bearing on the question of framing of charge although the prosecution may not rely upon the said documents. ( 13 ) I have carefully gone through the judgment referred to above and in my view the said judgment is not applicable in the present case simply because of the reason that the documents, which are claimed by the defence, in the present case, were never seized by the investigating agency, as it appears from the order dated 19. 6. 90 passed by the learned Magistrate. ( 14 ) THE next judgment relied upon by the learned Advocate of the petitioners is reported in (2000)6 SCC 338 (State of M. P. v. Mohonlal Soni ). In the said judgment it was held by the Hon'ble apex Court that at the stage of framing of charge the Court has to be prima facie satisfied about the existence of sufficient ground for proceeding against the accused. For this limited purpose the Court can evaluate materials and documents on record. Respondents' application for production of documents relating to Income Tax Returns and Income Tax Assessment orders which was collected during course of investigation was rejected by the trial Court. Hence the accused/respondent filed a revisional application before the High Court which was allowed directing that the documents collected during investigation be produced and may be taken into consideration by the Court below while framing charge against the accused persons. Thereafter the trial Court framed charges. Aggrieved by the order of framing charge the accused preferred a revisional application. The High Court accepted the case of the accused person, set aside the order of the trial Court framing charges and discharged the accused. Thereafter the trial Court framed charges. Aggrieved by the order of framing charge the accused preferred a revisional application. The High Court accepted the case of the accused person, set aside the order of the trial Court framing charges and discharged the accused. While affirming the order of the High Court it was held by the Hon'ble apex Court that the application filed by the accused was wrongly rejected by the trial Court in view of relevance of those documents in reaching Court's prima facie satisfaction. ( 15 ) I have gone through the judgment of the Hon'ble apex Court and I am of the view that the said judgment is not applicable in the present case. In the case referred to above the documents, which were claimed by the accused and were directed to be produced in Court, were seized by the investigating officer. But in the present case the documents, which are claimed by the defence to be produced, were never seized by the investigating officer and as such supply of such documents or production of such documents cannot arise. ( 16 ) AFTER hearing the learned Advocates of the respective parties and after going through the papers which are annexed to the revisional application, I am of the view that the impugned order dated 11. 5. 91 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta does not suffer from any illegality. The said order was passed by the learned Magistrate on proper application of mind and I do not find any reason to interfere with the same. The present revisional application accordingly fails and the same is dismissed. The present proceeding was initiated in the year 1986. The investigating agency submitted chargesheet in this case on 26. 3. 87. But till today the charge could not be framed. The present revisional application was moved in this Court on 24. 7. 91 and the same was kept pending in this Court for the last 10 years. In such circumstances I direct the learned Magistrate to proceed with the trial and to conclude the same with utmost expedition, preferably within a period of six months from the date of communication of this order. The interim order earlier granted by this Court stands vacated. The lower Court records, if any, may be sent down to the Court below immediately. Application dismissed.