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2001 DIGILAW 75 (CAL)

Jindal Strips Limited v. Anil Kumar Agarwal

2001-02-14

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J. This is an application for quashing of a proceeding being case No. C-418/97 now pending in the court of learned Metropolitan Magistrate, 6th Court, Calcutta under sections 420/471/120B of the Indian Penal Code. The present petitioners were made accused in the aforesaid case which was initiated on the basis of a complaint lodged by one Anil Kumar Agarwal, the complainant/opposite party No.1 in the present application. The allegations made in the complaint are that the complainant purchased 200 equity shares from the petitioner No.1 company. The present opposite party/ complainant received the aforesaid shares at Calcutta and sent the same with duly filled in stamped transfer deeds to the petitioner No. 1/ company for getting the same transferred in his name. It was alleged that the accused petitioner No.1 duly received the said shares and transferred the same in the name of the complainant and allotted the folio No. being 65664 and as such the complainant became the recorded owner and/or share holder of the said 200 equity shares of the accused No.1/ company. It was alleged that the complainant thereafter did not receive back the original shares from the accused company, who failed to return those shares after transferring in the name of the complainant. After a reasonable time the complainant made enquiries and came to learn from the company in its letter dated 2.2.96 that the aforesaid shares had already been lodged by one Monoj Kr. Jain and Sunil Bafna of Chennai for transferring those shares in their names. It was alleged in the petition of complaint that the accused petitioners were responsible for returning the aforesaid shares after being transferred in his name, but as they failed to do the same they have committed breach of trust. It was alleged further that Monoj Kr. Jain and Sunil Bafna had lodged the aforesaid shares with the petitioner No. 1/ company for getting the same transferred in their name with a forged transfer deed to commit fraud. 2. On receipt of the aforesaid complaint cognizance of the offence was taken and the case was transferred to the court of ld. Metropolitan Magistrate, 6th Court, Calcutta who examined the complainant and his witnesses and by his order dated 20.8.97 issued process against the petitioners under sections 420, 471,120B of the Indian Penal Code. 3. 2. On receipt of the aforesaid complaint cognizance of the offence was taken and the case was transferred to the court of ld. Metropolitan Magistrate, 6th Court, Calcutta who examined the complainant and his witnesses and by his order dated 20.8.97 issued process against the petitioners under sections 420, 471,120B of the Indian Penal Code. 3. Mr.Milon Mukherjee, learned Advocate appearing for the petitioners submits that the allegations made in the petition of complaint do not make out any offence under sections 420/471/120B of the Indian Penal Code against the present petitioners. Mr. Mukherjee submits that it would be evident from records that the offence, if any committed, was committed by other persons and the present petitioners had no role in commission of such offence. On the contrary the petitioners took all precautionary measures to protect the interest of the share holder, i.e., the complainant. Mr. Mukherjee submits that after purchasing the shares in question from market the complainant/O.P. No.1 had lodged the same with the company of the petitioners for transfer of the said share scripts in the name of the complainant. Mr. Mukherjee submits that after purchasing the shares in question from market the complainant/O.P. No.1 had lodged the same with the company of the petitioners for transfer of the said shares scripts in the name of the complainant. The petitioners' company thereafter transferred the said shares in the name of the complainant and sent back the same to the complainant by registered post with acknowledgment due. But unfortunately the complainant did not receive such letter. Mr. Mukherjee draws the attention of the court to a document annexed to the supplementary affidavit filed on behalf of the petitioners. The said document is the xerox copy of the extract from the journal of uninsured registered letters posted by the petitioners' company. Mr. Mukherjee pointing out the said document submits that the registered letter containing the share scripts was sent to the complainant. The said document is the xerox copy of the extract from the journal of uninsured registered letters posted by the petitioners' company. Mr. Mukherjee pointing out the said document submits that the registered letter containing the share scripts was sent to the complainant. But unfortunately the same was not received by the complainant, for which the petitioners cannot be held responsible, Mr.Mukherjee further submits that the complainant instructed the petitioners' company for not transferring the said share scripts in the name of any other person and pursuant to such instruction the company did not transfer the share scripts and informed the complainant to take appropriate steps in that regard and also for obtaining an appropriate order of injunction from the court. Mr. Mukherjee submits that if any offence is at all committed, it was committed by the accused Nos. 7 and 8 named in the petition of complaint, not by the present petitioners. As such the instant proceeding, so far it relates to the present petitioners, should be quashed. 4. The learned Advocate appearing for the complainant/opposite party submits that the allegations made in the petition of complaint prima facie make out an offence under sections 420/471/120B of the Indian Penal Code, which is sufficient for the purpose of proceeding further in this case. The learned Magistrate after perusing the petition of complaint, examining the complainant and his witnesses took cognizance of the offence against all the accused persons at this initial stage the proceeding should not be quashed by this court. The learned Advocate relies on a judgment of the Hon'ble Apex Court reported in J.T. 2000 (2) SC 426 (M/s. Medchl Chemicals & Pharma Pvt. Ltd. vs. M/s. Biological E. Ltd. & Ors). In the said judgment it was held by the Hon'ble Apex Court that for exercising power under section 482 Cr. P.C. the complaint in its entirety shall have to be examined on the basis of the allegations made in the complaint and the High Court at that stage has no authority or jurisdiction to examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. P.C. the complaint in its entirety shall have to be examined on the basis of the allegations made in the complaint and the High Court at that stage has no authority or jurisdiction to examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. It was further held in the said judgment that in the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of the court. Relying on the aforesaid judgment it is submitted by the ld. Advocate of the complainant/ O.P. that since a prima facie case is made out against the petitioners and other accused persons the instant proceeding should not be quashed at this initial stage. 5. Mr. Mukherjee, ld. Advocate of the petitioners relies on a judgment of the Hon'ble Apex Court reported in J.T. 1998 (5) SC 452 (Ashok Chaturuedi & Ors. vs. Shitul H. Chanchani & Anr.) .In the said judgment of the Hon'ble Apex Court it was held that merely because an accused has a right to plead at the time of framing of charge that there is no sufficient material for such framing of charges, he is not debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance of the offence is invalid on the ground that no offence can be said to have been made out in the petition of complaint .It was further held that allowing the criminal proceeding to continue even where the allegations in the petition of complaint do not make out an offence would be an abuse of the process of the court and therefore there cannot be any dispute that in such case inherent power under section 482 of the Code of Criminal Procedure can be exercised. 6. I have heard the ld. Advocates of the respective parties. I have also gone through the judgment of the Hon'ble Apex Court referred to above. 6. I have heard the ld. Advocates of the respective parties. I have also gone through the judgment of the Hon'ble Apex Court referred to above. After going through the petition of complaint I am of the view that a prima facie case is made out in the petition of complaint, which is sufficient for the purpose of taking cognizance of the offence and proceeding further in the case. Truth or falsity of such allegations should not be gone into at this early stage of the proceeding when only cognizance of offence has been taken by the learned Magistrate. Whether such allegations are true or not can only be decided on the basis of evidence to be led in the trial. The documents which are annexed to the supplementary affidavit and relied upon by the petitioners, can not be taken into consideration by this court at this stage. It will not be proper for this court to decide the reliability and genuineness of such documents at this stage. In my considered opinion this is not a fit case for interference by this court. The revisional application accordingly fails and the same is dismissed. 7. However, liberty is granted to the petitioner to agitate all the points, which have been raised in the present revisional application, at the appropriate stage of the trial. 8. The learned trial Magistrate shall proceed with the case and dispose of the same in accordance with law with utmost expedition. Let urgent xerox certified copies of this order, if applied for, be supplied to the respective parties. Revisional application dismissed.