Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 103 (CAL)

Jay Prakash Gaur v. State of West Bengal

2002-02-19

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J.: This is an application under section 482 of the Code of Criminal Procedure filed at the instance of Dr. Jai Prakash Gaur and Harish Kumar Vaid seeking to quash the proceedings of Complaint Case No. C-173/2000 under sections 420/467/468/471/120B of the Indian Penal Code, pending before the learned Metropolitan Magistrate, 13th Court, Calcutta. 2. The short facts leading to the filing of the present revisional application are as under:- Petitioner No.1 is the Chairman while petitioner No.2 is the Secretary of a concern named and styled as M/s. Jai Prakash Industries Ltd. (hereinafter referred to M/s. Jai Prakash). M/s. Jai Prakash received a letter sent by the opposite party No.2 dated 14.3.95 wherein it was stated that 1000 shares of M/s. Jai Prakash were sent by opposite party No.2 for transfer in his name and the company was further informed that he had not yet received the shares as yet. 3. M/s. Jai Prakash was surprised to receive such letter sent by the opposite party No.2 and after going through the records, no trace was found of such share certificates allegedly sent by the opposite party No.2 and thereafter they duly informed the opposite party No.2 regarding the non-receipt of such share certificates sent by the opposite party No.2 through a communication dated 20.3.98. 4. Subsequently, another letter dated 18.4.98 was received by M/s. Jai Prakash, written by one B. S. Sharma, counsel on behalf of the opposite party No.2 wherein it was stated that the opposite party had bought one thousand shares of M/s. Jai Prakash from one Girdharlal Rathi and though the opposite party No.2 had sent those share certificates for transfer in his name to M/s. Jai Prakash, the same were not received by the company and in view of such position, M/s. Jai Prakash was asked to stop transfer of those shares and arrange for issuance of duplicate shares in favour of the opposite party No.2. 5. In response to such letter dated 18.4.98, M/s. Jai Prakash duly wrote to Mr. B. S. Sharma raising certain queries- a) Whether Mr. Girdharlal Rathi, the seller of the shares, was the registered share broker of a stock exchange? 5. In response to such letter dated 18.4.98, M/s. Jai Prakash duly wrote to Mr. B. S. Sharma raising certain queries- a) Whether Mr. Girdharlal Rathi, the seller of the shares, was the registered share broker of a stock exchange? b) The name of the opposite party No.2 did not appear in the share bill and thus it became pertinent to know as to how the opposite party No.2 became the purchaser of the said shares in question? 6. It was further clarified by M/s. Jai Prakash that it would not be possible for the company either to "stop transfer" of the shares in question and/or issue duplicate shares to the opposite party No.2, without opposite party No. 2’s first establishing that he has purchased the shares in question either through a registered share broker of a stock exchange or directly from the share holder. 7. It was further clarified that if in the meantime the shares are lodged with the company, along with duly executed and stamped transfer deeds, the company under law, would not be in a position to refuse registration of transfer or delay it, without getting a restraint order issued by a court of competent jurisdiction. 8. Subsequently, 300 shares, a part of the 1000 shares which were sent by the opposite party No.2 and subsequently misplaced, was lodged with the company for transfer in the name of one Pradip Banerjee, and the said shares were accompanied by validly executed transfer deeds and as such the company was constrained to transfer the said shares in the name of Pradip Banerjee. 9. Subsequently, on 5.5.98 another 100 shares were lodged with the company for transfer in the name of one Sanjib Das and those shares were also part of the shares which were allegedly lost in transit by the opposite party No. 2. Since no steps were taken by the opposite party No.2 for obtaining any order from a court of law, restraining transfer of the aforesaid shares, the company was forced to act in accordance with the statute and as duly executed transfer deeds accompanied the said shares, M/s. Jai Prakash duly transferred the said 100 shares in the name of San jib Das and despatched the same on 29.5.98. 10. Subsequently, Mr. 10. Subsequently, Mr. B. S. Sharma, learned counsel for the opposite party No.2, through a letter dated 12.5.98, sent to M/s. Jai Prakash stated that the 1000 shares of the company had been sold by Mr. Girdharlal Rathi to the opposite party No.2 and the payments had been made by a concern, named and styled as M/s. Rajdhani International, which is a sole proprietory concern owned by the opposite party No.2. It was further informed that Mr. Girdharlal Rathi had purchased these shares from M/s. V. G. Capital Markets (P) Ltd., which is a registered broker of the National Stock Exchange. It was further stated therein that necessary steps were being taken by the opposite party No.2 for procuring necessary orders from the court of law. 11. M/s. Jai Prakash thereafter, through a communication dated 30.5.2000 duly intimated Mr. B. S. Sharma, learned counsel for the opposite party No.2 regarding receipt of the letter dated 12.5.98 and it was stated in that letter that Mr. Girdharlal Rathi was not a registered share broker nor his purchase from a registered share broker has been supported by a document and as such, the opposite party No.2 has not been able to prove his ownership over the shares through a registered share broker of a stock exchange or a share holder of the company. It was further informed by the aforesaid letter that before receipt of the letter dated 12.5.98, 400 shares had been lodged with the company for transfer of ownership and as the same were accompanied by duly executed and stamped transfer deeds, the company was constrained to transfer the same. It was further informed that in view of the assurances given by Mr. Sharma, regarding proper legal steps, the company had put to "stop transfer" the balance 600 shares which had allegedly been lost by the opposite party No.2 in transit. It was further informed by the said letter that if no restraint order from a court of competent jurisdiction is received within a period of 15 days from the date of receipt of this letter, the company, under law, would not be in a position to refuse/delay registration of transfer of the balance 600 shares, in the event the same are lodged with the company. 12. 12. Subsequently, another letter dated 19.5.98 was received by M/s. Jai Prakash on 1.6.98 and by such letter, the company was informed that the opposite party No.2 had filed a case before the Calcutta District Redressal Forum Unit-I being CDF Case No. 563 of 1998 wherein a prayer was made before the forum for direction upon M/s. Jai Prakash not to transfer the said 1000 shares, as mentioned to any other person than the opposite party No.2 and not to give any benefits, right shares, bonus shares and dividends etc., and any other benefits, if any, to any other person than the opposite party No.2 with a further prayer seeking a direction by the forum M/s. Jai Prakash to issue duplicate 1000 equity shares against the original shares which have been lost. M/s. Jai Prakash thereafter duly entered into appearance and duly filed its reply to the show cause notice disclosing the full events which led to the transfer of the 400 shares in the name of Pradip Banerjee and Sanjib Das. 13. Again vide a communication dated 22.7.98, Mr. B. S. Sharma, learned counsel for the opposite party No.2 informed the company that the 300 shares transferred in the name of Pradip Banerjee were done on the basis of forged signatures made on the transfer deeds after erasing the name of his client i.e., opposite party No.2, while the 100 shares which were transferred in the name of Sanjib Das were done after replacing the same with a new transfer deed which did not bear the seal of the broker. 14. In response to the aforesaid letter, it was informed by M/s. Jai Prakash to Mr. Sharma that after proper examination of the transfer deeds in respect of the 400 shares have been put to "stop transfer". Mr. Sharma was further informed that registered with acknowledgment due letters have been sent to Mr. Pradip Banerjee and Sanjib Das informing them that the shares have been put to "stop transfer" and they were requested to surrender the shares to the company. 15. Again by 3 letter dated 18.8.98, written by Mr. B. S. Sharma to M/s. Jai Prakash whereby the company was asked to "stop transfer" the total 1000 and issue duplicate share certificates in respect thereof in favour of the opposite party No.2. M/s. Jai Prakash through its letter dated 31.10.98, duly informed Mr. 15. Again by 3 letter dated 18.8.98, written by Mr. B. S. Sharma to M/s. Jai Prakash whereby the company was asked to "stop transfer" the total 1000 and issue duplicate share certificates in respect thereof in favour of the opposite party No.2. M/s. Jai Prakash through its letter dated 31.10.98, duly informed Mr. Sharma that all the 1000 shares have been put to "stop transfer" and with regard to the issuance of duplicate shares, it was further informed that the decision regarding the issuance of duplicate shares would be taken as per the judgement of the Calcutta District Consumer Disputes Refressal Forum, Unit-1. 16. Subsequently, it came to the knowledge of M/s. Jai Prakash that the 300 shares, which had been transferred in the name to Pradip Banerjee, were again sold by him to Mrs. Seema Agarwal (200 shares) and Mrs. Gita Daw (100 shares) and the said shares were lodged with M/s. Jai Prakash for transfer, but since the said shares had been put to "stop transfer", the company refused to transfer the same and the 100 shares in the name of Mrs. Gita Daw were retained by the company. However, the 200 shares which were lodged by Mrs. Seema Agarwal had to be returned to her as Mrs. Seema Agarwal insisted upon the company to send her court orders, thereby restraining the transfer of the shares. As there was no order restraining the said transfer of shares, M/s. Jai Prakash was forced to return the same. 17. Again on 4.10.2000, M/s. Jai Prakash sent another intimation to Pradip Banerjee and Sanjib Das requesting them to surrender the shares of the company transferred in their names in view of the status of the said shares "stop transfer". However, the company has not received any response to such communication sent on 4.10.2000. 18. Petitioners subsequently received a summons issued by the learned 13th Metropolitan Magistrate, Calcutta in connection with Case No. RC-173/2000, wherein directions were issued to appear before the learned court below on 10.11.2000 to answer a charge under sections 420/467/471/120B of the Indian Penal Code. It was alleged in the petition of complaint that the present petitioners allegedly have entered into a criminal conspiracy with the accused Nos. It was alleged in the petition of complaint that the present petitioners allegedly have entered into a criminal conspiracy with the accused Nos. 3 and 4 and in connivance with the said persons, transferred the shares, knowing fully well that the said shares and transfer deeds were not obtained legally and/or are forged and ignoring the letters dated 4.3.98 and 18.4.98, sent by the opposite party No.2 had thereby caused wrongful loss to the O.P. No.2 and cheated him and the petitioners in conspiracy with each other were also not transferring and/or issuing shares in respect of the balance 600 shares in the name of the opposite party No.2 despite his several requests. 19. Being aggrieved by and dissatisfied with the continuance of the impugned proceedings of Complaint Case No. C-173/2000, the petitioners have come out before the forum seeking for the aforesaid reliefs alleging, inter alia, that the continuance of the impugned proceeding would be gross abuse of the process of the court as it would be apparent from the complaint itself, that the present petitioners were agents of the company and the allegations made therein merely show actions taken by the company in its normal course of business and they were not the persons who looked after the affairs regarding transfer of ownership of shares of the company as they were highly placed officials of the company, who are involved in the policy decisions of the company and as such the instant criminal proceeding is manifestly attended with mala fide and has been maliciously instituted with an ulterior motive for wrecking vengeance upon the present petitioners and as such it should be expedient in the interest of justice to quash the impugned proceeding. Hence, the prayer. 20. I have heard the learned counsel appearing for the petitioners as also the learned counsel appearing for the opposite party No.2 including the State of West Bengal. Sri Sekhar Basu, learned senior counsel appearing for the petitioners drawing my attention to the paragraph 9 of the complaint petition filed by the opposite party No.2 has submitted before me that it would be apparent that only a bald statement has been made against the petitioners alleging hatching up of a conspiracy by them with the two other accused persons. He has further submitted that the offence punishable under section 120B of the I.P.C. is an offence independent by itself. He has further submitted that the offence punishable under section 120B of the I.P.C. is an offence independent by itself. Thus, the complaint should have disclosed the basic fact, constituting the ingredients of the offence as alleged against the petitioners, but the complaint filed by the opposite party No.2 is silent on such basic facts. 21. He has further submitted that the statement of the opposite party No.2 recorded on solemn affirmation has also failed to disclose any ingredient of the offence of "criminal conspiracy" against the petitioners. And, here, the opposite party No.2 has only made a bald allegation against the petitioner No.2 as being the conspirator with the two other accused being accused Nos. 3 and 4 and he has nowhere mentioned that petitioner No.1 as the co-conspirator of the petitioner No.2 to the commission of the alleged offence. Rather the allegations made in paragraph 9 of the complaint petition clearly suggest that the act of forgery of the transfer deeds were committed only by the accused Nos. 3 and 4 and it is only after the said forgery had been committed and completed, the aforesaid bald allegation against the present petitioners have been made. 22. Sri Basu has further submitted that much reliance has been placed by the opposite party No.2 in respect of paragraph 10 of the complaint, but looking into the aforesaid paragraph 10 of the complaint, without adding or substracting any portion thereof, it appears that the allegations, contained therein do not make out any ingredient of the offence alleged against the petitioners and as such only a mere bald statement without any substance/factual averment, contained therein in the petition of complaint, cannot make a person liable to any criminal prosecution. 23. In this connection, he has also drawn my attention to the decision of the case in Ashok Chaturvedi & Ors. vs. Shitul H. Chanchani & Anr., reported in III (1998) CCR 192(SC) and another decision by a Division Bench of this Hon'ble Court in J. Th Zwart & Ors. vs. Indrani Mukherjee, reported in 1990 Calcutta Criminal Law Reporter (Cal) 1 and a decision of the Hon'ble Apex Court in M/s. Pepsi Foods Ltd. and Anr. vs. Shitul H. Chanchani & Anr., reported in III (1998) CCR 192(SC) and another decision by a Division Bench of this Hon'ble Court in J. Th Zwart & Ors. vs. Indrani Mukherjee, reported in 1990 Calcutta Criminal Law Reporter (Cal) 1 and a decision of the Hon'ble Apex Court in M/s. Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate & Ors., reported in A.I.R. 1998 SC 128 and in connection with the above, it has also been submitted by him that as per the aforesaid pronouncements and bearing in mind the parameters laid down by the courts in those decisions, it would be quite apparent and clear that in exercising the power under section 482 of the Code in this case, the allegations made in the instant complaint petition and the statements of the complainant made on oath before the Magistrate, it would be crystal clear and evident that the necessary ingredients of the offences have not been made out so far as the present petitioners are concerned and the present petitioners had been arraigned as accused persons solely on the basis that they were principal officers of the company and as such the same cannot be proceeded with in the absence of any overt act, actuated by "mens rea" committed by the petitioners, which is punishable under the Indian Penal Code. He has finally submitted that the impugned proceeding in the above circumstances is liable to be quashed on the ground that the complaint as also the statement of the opposite party No.2, recorded on solemn affirmation, do not make out the ingredients of the offence alleged against the petitioner or contain the basic facts and circumstances which would constitute the offence. 24. 24. The learned counsel appearing on behalf of the opposite party No.2 in opposing the aforesaid claim of the petitioner has submitted before me that the decision reported in III (1998) CCR SC 192 (supra) has no application in the facts and circumstances of the present case as in the instant case, it is quite apparent from the records and also on the allegations as made in the complaint that having full knowledge about the loss of share scripts in transit and such facts having brought to the notice of the petitioner over and again and the petitioners having acknowledged the receipt of the communication to this effect transferred the identical share script in the name of the opposite party Nos. 3 and 4, and without any conspiracy with the opposite party Nos. 3 and 4, the petitioners could not have done so and those share-scripts were subsequently transferred on the basis of forged and inter-polated document of transfer and as such those actions of the petitioners taken into consideration together would constitute the offence as alleged against the present petitioners. 25. He has further' submitted that the case referred to in the decision of 1990 C.CR.L.R. (Cal) 1 (supra), is not applicable in the facts and circumstances of the present case as in the instant case there is no false statement in the documents relied upon by the complainant and there is also no such allegation levelled from the side of the petitioners imputing that the documents contained false statement. 26. It has further been submitted by the learned counsel appearing for the opposite party No.2 that the case reported in AIR 1998 Supreme Court 128 (supra) as referred to by the petitioners has no application in the present case as the facts of the said reported decision are quite different from the present one and here the petitioners being the principal officers of the company, they were certainly responsible for the decision and policy making with regard to the affairs of the company, cannot shirk out their responsibility and liability only on the ground that they cannot be burdened with vicarious liability for the action or inaction of their subordinates. So, according to him, the aforesaid decisions cited on behalf of the petitioners do not come to any aid of the petitioners. 27. So, according to him, the aforesaid decisions cited on behalf of the petitioners do not come to any aid of the petitioners. 27. Drawing my attention to a decision reported in 2000 Criminal Law Journal 1487 (SC) in the case of M/s. Medchl Chemicals & Pharma (P) Limited vs. Biological E. Ltd. and Ors., it has been submitted that upon reading of the allegations as made in the complaint, it cannot be said that the ingredients with regard to the cheating and criminal conspiracy were totally absent and whether such allegations in the complaint are otherwise correct or not have to be decided on the basis of the evidence to be led at the trial of the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the opposite party No.2 as it is also quite settled that both criminal law and civil law remedy can be pursued in diverse situations and as a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. 28. So, referring to the above decision, he has further submitted that only because of the fact that the petitioners were not impleaded by the opposite party No.2 before the District Consumer Disputes Redressal Forum as necessary parties it cannot at all be accepted that the present proceeding against the present petitioners on the basis of their being principal officers of the company cannot be maintained on the ratio decided by the aforesaid decision of the Hon'ble Apex Court. 29. Drawing my attention to another decision in the case of Rajesh Bajaj vs. State NCT of Delhi and Ors., reported in 1999 CRI. L. J. 1833(SC), it has been submitted by the learned counsel appearing for the opposite party No.2 that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. It is also not necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. 30. It is also not necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. 30. He has further submitted that at the stage of quashing of the criminal proceeding splitting up of the definition into different components of the offence to make a meticulous scrutiny to see as to whether or not all the ingredients have been precisely spelled out in the complaint and in the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash the criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details and for quashing an FIR which is permitted only in extremely rare cases, the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. 31. Referring to another decision in the case of Satvinder Kaur vs. State (Govt. of NCT of Delhi) and Anr., reported in (1999) 8 Supreme Court Cases 728, it has been submitted that the legal position has been well settled that if upon plain perusal of F.I.R. and/or complaint if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed, and to quash an FIR or complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se and it has no jurisdiction to examine the correctness or otherwise of the applications. 32. I have gone through the aforesaid decisions with meticulous care and also with regard to the ratio decided by the Apex Court in the aforesaid judgments referred to above by the learned counsel appearing for the opposite party No.2. 33. 32. I have gone through the aforesaid decisions with meticulous care and also with regard to the ratio decided by the Apex Court in the aforesaid judgments referred to above by the learned counsel appearing for the opposite party No.2. 33. As per the ratio decided by the Apex Court, it is now quite well settled principle of law that although this court is invested with plenary power to quash the criminal proceeding pending before by court subordinate to it where it appears that the allegations incorporated in the F.I.R. or in the petition of complaint or in the collected materials, even when they are taken on their face value and accepted in their entirety, without adding or substracting anything from it, do not constitute any offence as alleged, yet, in exercising such power, the High Court is not required to probe into any question as to whether the materials or allegations constituting the offence are trustworthy or not. 34. It is again not necessary that the complaint should reproduce in the body of the complaint all the ingredients of an offence verbatim and it is also well settled when the petition of complaint and the annexed documents made out a prima facie, case, the High Court cannot enter into a debatable area to which of the versions is true. 35. So, upon plain perusal of the petition of complaint and the accompanying documents in this case and being in agreement with the views of the learned counsel appearing for the opposite party No.2 that the decisions, cited on behalf of the petitioners, above, are not applicable in the facts and circumstances of the present case and also viewing the present matter in hand, in the light of the ratio decided by the Apex Court in the aforesaid judgements, cited on behalf of the opposite party No.2, I am of the clear opinion that in this case quashing of the proceeding of the Complaint Case No. C-173/2000 is neither possible nor called for on the existing materials, available before me , as on perusal of those it cannot at all be said that they do not disclose any offence whatsoever as alleged in connection with this case against the present petitioners. 36. In view of the above, I find no merit in the revisional application and as such the same should be dismissed. 37. 36. In view of the above, I find no merit in the revisional application and as such the same should be dismissed. 37. In the result, this revisional application is dismissed. Interim order, if there be any, stands vacated. 38. Let a copy of this order be sent down to the learned court below for information and necessary compliance with a direction to proceed in connection with the aforesaid case as expeditiously as possible. Let urgent xerox certified copies, if applied for, may be made available to the parties as expeditiously as possible. Revisional application dismissed. Interim order vacated.