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2001 DIGILAW 496 (CAL)

Khokan Das v. State of West Bengal

2001-08-08

ASIT KUMAR BISI

body2001
JUDGMENT 1. Mr. Joy Sengupta, learned Advocate along with Mr. Sanat Kumar Das, learned Advocate has appeared for the petitioner. None appears on behalf of any of the opposite parties despite service of copies of this application on them. The affidavit of service filed is kept on the record. 2. The present application for revision under Section 482 read with Section 401 of the Code of Criminal Procedure has been preferred by the petitioner Khokan Das for quashing of the impugned proceeding being Narkeldanga P.S. Case No. 169 dated 14.7.2000 under Section 384 of the Indian Penal Code. 3. Succinctly stated the case of the petitioner is that the petitioner and the de facto-complainant are two brothers and by virtue of a deed of partnership dated 7.1.91 they started a partnership business in Hardware goods and their shop is situated at 76/B, Netaji Subhas Road, Shop No. 20, Calcutta-700 007 and the shop was under the name and style of M/s. Gourdas and Sons. The de facto complainant Subrata Das presently O.P. No.2 gave a notice of retirement from the said business on 22.11.99 to the petitioner as per the deed of partnership. Pursuant to the said notice, a deed of dissolution of partnership was executed on 10.3.2000 and the de facto-complainant received Rs. 1,10,000/- against proper receipt towards the consideration for transfer of his share in the said partnership business. The present petitioner has been carrying on the said business. The de facto complainant filed a petition of complaint under Section 156 (3) of Cr. P.C. before the learned Additional Chief Judicial Magistrate, Sealdah on 19.4.2000 whereupon the learned Additional Chief Judicial Magistrate, Sealdah sent the same to the O.C., Narkeldanga P.S. for causing an investigation after treating the same as F.I.R. under Section 156 (3) of Cr. P.C. After lapse of about 34 days from the alleged date of occurrence the petition of complaint under Section 156(3) of Cr. P.C. was filed by the de facto-complainant before the learned Court below. There is nothing in the First Information Report to indicate that the petitioner committed any attempt of taking away the alleged amount of Rs. 1,10,000/-. The aforesaid petition of complaint was filed by the complainant to harass the petitioner. P.C. was filed by the de facto-complainant before the learned Court below. There is nothing in the First Information Report to indicate that the petitioner committed any attempt of taking away the alleged amount of Rs. 1,10,000/-. The aforesaid petition of complaint was filed by the complainant to harass the petitioner. In the circumstance, the petitioner has sought quashing of the impugned proceeding which has initiated on the basis of the said petition of complaint which was treated as First Information Report under Section 154(3) of Cr. P.C. 4. In the course of hearing of the instant revision application Mr. Sengupta, the learned Advocate for the petitioner has drawn my attention to the relevant deed of partnership and other documents which have been marked Annexures to the instant revision application. The xerox copy of the deed of partnership marked Annexure 'A' indicates in clear terms that the said deed concerns the partnership business amongst three brothers, the present petitioner Khokan Das, the present O.P. No.2 Subrata Das and another brother Shyamal Das. The xerox copy of the deed marked Annexure 'C' indicates subsequent transfer of share of the partnership business of Shyamal Das in favour of the present petitioner Khokan Das. Mr. Sengupta has also drawn my attention to the xerox copy of the notice dated 22.11.99 marked Annexure 'B' to the instant revision application which clearly indicates that the present O.P. No.2 who is the de facto-complainant sent the notice to the present petitioner informing his decision to retire from the partnership business and the said notice appears to have been given by the present O.P. No.2 pursuant to Clause 9 of the partnership deed dated 7.1.91. On going through the relevant Clause 9 of the partnership deed xerox copy of which is marked Annexure 'A', I find that there is clear stipulation to the effect that the said partnership shall be a partnership at will and if any partner desire to retire from the firm he will have to give 3 months' notice in writing to the other partners expressing his intention to do so and on expiry of the period of such notice a general account shall be taken of all the assets and liabilities and of the profits or losses of the partnership business upto that date and the retiring partner shall be paid his due share on a judged valuation within 6 months of the retirement. Mr. Sengupta has further drawn my attention to the receipt xerox copy of which is marked Annexure 'C' to the revision application and the said document indicates that the present petitioner paid the sum of Rs. 1,10,000/- towards consideration for transfer of share of the present O.P. No.2 Subrata Das who received payment of the said amount and granted the said receipt. It is significant to note that there are three witnesses who signed the said receipt. 5. The notorious fact emerging from the materials on record is that the occurrence is alleged to have taken place on 16.3.2000 at 10.30 a.m. whereas the petition of complaint was filed by the present O.P. No.2, Subrata Das in the Court of the learned Additional Chief Judicial Magistrate, Sealdah on 19.4.2000. Thus, it is palpable that the petition of complaint was filed in the Court more than a month after the date of the alleged occurrence. Of course, it has been alleged in Paragraph 8 of the petition of complaint which was subsequently treated as F.I.R. under Section 156 (3) of Cr. P.C. that the present O.P. No.2 went to file the written complaint before the O.C., Narkeldanga P.S. on 30.3.2000 but no action was taken by the local P.S. However, no credible material is forthcoming to substantiate such version. Even if the said version is accepted to be true it is quite clear from the said version that the complainant went to lodge the F.I.R. after 13 days from the date of occurrence. Such unexplained delay strikes at the root of the case. Even if the said version is accepted to be true it is quite clear from the said version that the complainant went to lodge the F.I.R. after 13 days from the date of occurrence. Such unexplained delay strikes at the root of the case. There is a catena of judicial decisions of the Hon'ble Apex Court to fortify the contention that in absence of any explanation of such inordinate delay in lodging the F.I.R. affects veracity of the prosecution version. Mr. Sengupta, the learned Advocate for the petitioner has pertinently cited the case of (1) Satguru Singh v. State of Punjab reported in AIR 1994 SC 2449; the case of (2) Balwinder Singh v. State of Punjab reported in 1996 C Cr LR (SC) 8 at page 13 ; and the case of (3) Sudhakar & Anr. v. State of Maharashtra reported in 2000 Cr LJ 3490, on this score. 6. One curious aspect of the matter is that the petition of complaint which was treated as F.I.R. under Section 156(3) of Cr. P. C. embraces averments to the effect that the complainant was insisting on getting proper account of business from the accused lest he would go to the proper authority for relief and the accused came to the complainant's place and under threat of dire consequences forced him to put his signature on two white blank papers and on two blank non-judicial stamp papers and one on revenue stamp and lifted the cash of Rs. 1,10,000/- in the complainant's room at about 10.30 a. m. on 16.3.2000. As already stated, the materials on record make it quite evident that the complainant Subrata Das, presently O.P. No.2 already issued notice to the present petitioner informing. to the latter of his decision to retire from the partnership business whereupon the O. P. No.2 received the slim of Rs. 1,10,000/- from the present petitioner and granted receipt on 10.3.2000 (copy or which is marked Annexure 'C') and the said receipt bears the signatures of three independent witnesses. Even it there be any dispute between the parties after that, that should be categorised as civil dispute and such dispute emanating from the partnership business cannot come within the ambit of Penal Code. 7. Mr. Sengupta has cited the case of (4) State of Haryana & Ors. Even it there be any dispute between the parties after that, that should be categorised as civil dispute and such dispute emanating from the partnership business cannot come within the ambit of Penal Code. 7. Mr. Sengupta has cited the case of (4) State of Haryana & Ors. v. Bhajanlal and Others reported in 1992 Supreme Court Cases (Cr) 426 at page 470, wherein the Hon'bIe Apex Court has enumerated categories of cases by way of illustration wherein the inherent power under Section 482 of the Code can be exercised to prevent abuse of process of any Court or otherwise to secure the ends of Justice. He has drawn my attention to illustration 5 wherefrom it appears that such power can be exercised where the allegations made in the F.I.R. or complaint are so absurd and inherently improbably on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Mr. Sengupta has contended that the said illustration applies to the instant case. He has further contended that when there is no prima facie Case, the criminal proceeding can be quashed by this Court at initial stage in exercise of power under Section 482 of Cr. P. C. He has referred to the case of (5) M/s. Pepsi Foods Ltd & Anr. v. Special Judicial Magistrate reported in AIR 1998 Supreme Court 128 ; and the case of (6) Ashok Chaturvedi and Others v. Shitul H. Chanchani & Anr. reported in 1998 Supreme Court Cases (Cr) 1704. I find sufficient force in the contention raised by Mr. Sengupta. I am of the view that the principles of law enunciated by the Hon'ble Apex Court in the above noted decisions' apply to the instant case. 8. Having regard to the above noted principles of law enunciated by the Hon'ble Apex Court in the decisions referred to above and the facts and circumstances emerging from the materials on record. I find sufficient ground for quashing of the impugned proceeding being Narkeldanga P.S. Case No. 169 dated 14.7.2000 under Section 384 of the Indian Penal Code initiated against the present petitioner. The revision application is allowed. The impugned proceeding being Narkeldanga P.S. Case No. 169 dated 14.7.2000 under Section 384 of the Indian Penal Code which has been initiated against the present petitioner be quashed. No order as to costs. The revision application is allowed. The impugned proceeding being Narkeldanga P.S. Case No. 169 dated 14.7.2000 under Section 384 of the Indian Penal Code which has been initiated against the present petitioner be quashed. No order as to costs. If an urgent xerox certified copy of this order is applied for, the same may be supplied as early as possible.