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2003 DIGILAW 155 (CAL)

RAJESH KUMAR KANOI v. STATE OF WEST BENGAL

2003-03-31

MAHEMMAD HABEEB SHAMS ANSARI

body2003
M. H. S. ANSARI, J. ( 1 ) PETITIONER in the instant writ petition has questioned the complaints being Annexure P-3 and prayed for quashing the same. ( 2 ) NONE has appeared on behalf of the private respondent complaint. On behalf of the State respondents, an affidavit-in-opposition has been affirmed on behalf of the learned Public Prosecutor, High Court. ( 3 ) IT is the contention of the petitioner that the fundamental rights under articles 14 and 21 of the Constitution have been infringed by the impugned action of the complaint being lodged by the private respondent and the learned Magistrate directing the Police authorities to conduct investigation in respect thereof. Petitioner, it is stated is working as teacher in English at Junior Oxford Bilingual School, Dongguan, People's Republic of Chine. On account of the false complaint registered against the petitioner during the period when the petitioner was working as and is presently also working as non-resident Indian in Peoples Republic of China, the employment of the petitioner would be affected and the petitioner is denied the right to travel abroad. Reliance has been placed by the petitioner upon annexure P-2 to substantiate the said contention. Petitioner came to learn of the aforesaid criminal cases lodged with the Madarihat Police Station case Nos. 30 of 2002, 45 of 2002, 50 of 2002 and 51 of 2002. On and from December 7, 2001 till petitioner arrived in India on January 22, 2003, he has been in abroad. It is contended that the complaint lodged by the petitioner pertains to the said period when the petitioner was abroad and, therefore, no case is made out against the petitioner for being proceeded against in a Criminal Court based upon the said complaint. ( 4 ) IN the affidavit-in-opposition, it is stated that the case is at a very initial stage of investigation which is to be made against several accused persons. Petitioner has neither surrendered himself to the Court below nor applied for bail. It is further contended that the instant writ application is not maintainable as the learned Magistrate held that a prima facie case has been made against the petitioner in four (4) different complaints and for which directions were given to the Officer-in-charge to investigate those cases against different persons including the petitioner. It is further contended that the instant writ application is not maintainable as the learned Magistrate held that a prima facie case has been made against the petitioner in four (4) different complaints and for which directions were given to the Officer-in-charge to investigate those cases against different persons including the petitioner. It is further contended that the petitioner alone has approached this Court and, therefore, the writ application cannot be entertained in a piece meal way. It is further contended on behalf of the learned Public Prosecutor that a Writ Court normally does not interfere with the investigation as it is in the province of the Police authorities. Any enquiry as to probability, reliability or genuineness of the allegations made in the FIR are beyond the scope of section 482 of the Code of Criminal Procedure as per the guidelines laid down by the Hon'ble Supreme Court. As the investigation is at the initial stage, the instant writ application is liable to be dismissed summarily, it was urged. ( 5 ) THE complaints four in numbers have been filed by the private respondent before the learned Sub-Divisional Judicial Magistrate, Alipore. Private respondent is the complainant in all the four complaints. The accused No. 1 is the Tea Company and accused Nos. 2 to 5 are said to be the Directors of the said Tea Company. Accused Nos. 6 to 10 are said to be the management personnel of the said company. ( 6 ) PETITIONER herein is arrayed as accused No. 7 in all the four impugned complaints. The said four complaints are on similar lines alleging that on account of credit supply made by the petitioner, accused persons jointly/severally were liable to pay its liabilities to the complainant. In respect of the outstanding dues of the complainant, a Director of the company signed and issued cheque in discharge of part liability. The said cheque on presentation was returned for the reason "payments stopped by drawer" and in respect of two complaints, the endorsement is to the effect "insufficient fund" and "unable to obtain payment". It is further stated that the complainant issued notice under registered post with A/d and despite the same, the demand was not satisfied. The said cheque on presentation was returned for the reason "payments stopped by drawer" and in respect of two complaints, the endorsement is to the effect "insufficient fund" and "unable to obtain payment". It is further stated that the complainant issued notice under registered post with A/d and despite the same, the demand was not satisfied. It is further alleged that the accused persons misappropriated the amount which was payable to the complainant and that all the accused have acted in collusion with each other in furtherance of their common intention after making deep rooted conspiracy and abetted the offence inasmuch as they failed to prevent bouncing of the cheque or to make payment subsequently. The aforesaid omission and commission have rendered all the accused jointly and severally liable to be prosecuted under sections 138/141 N. I. Act and 406/420/109/120b of Indian Penal Code. ( 7 ) THUS, the complaint is essentially for dishonour of cheque and the charge is for the offence under section 138 of the Negotiable Instruments Act. Certain offences under IPC have also been alleged and accused are said to have committed such offences under sections 406/420/109/120b IPC on account of their failure to prevent the bouncing of the cheque. ( 8 ) IT must be borne in mind that the accused No. 1 is a company and accused Nos. 2 to 5 are its Directors. As per the complaint, petitioner along with the other accused Nos. 5 to 10 is said to be the Management Personnel of the Company (A-1 ). The offence is alleged to have been committed by the Company (A-1 ). ( 9 ) SECTION 141 of the N. I. Act deals with the offences by companies. The extent relevant, it is extracted hereunder:"141. Offences by Companies:- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. . . . . . . . . (2)xxx xxx xxx" ( 10 ) IN so far as offence under section 138 of N. I. Act is concerned, the five ingredients which are components of the offence are (i) drawing of a cheque; (ii) presentation of a cheque; (iii) returning of cheque unpaid; (iv) giving notice to the drawer demanding payment and (v) failure of the drawer to make payment. ( 11 ) TO bring the persons within the purview of section 138, there must be specific averment against such person to take cognizance of the offence by the learned Magistrate. In the case of offences by a company person in charge of or responsible to the company for conduct of its business are also liable to be proceeded against in terms of section 141. True, the words inscribed in section 141 need not be incorporated in a complaint but the substance of the allegations read as a whole should answer and fulfill the requirements of the ingredients of the said section 141 for proceeding against the accused for the offence under section 138 when the offence is by a company. In other words, mere incorporation of the words as in section 141 of the N. I. Act is not sufficient to proceed against the accused but the substance of the allegation read as a whole should answer and fulfill the requirements of ingredients of the offence for being proceeded against such persons who are arrayed as accused. ( 12 ) WHEN judged in the light of the above, it will be seen that in so far as petitioner is concerned, there is no allegation that either he was in-charge of or was responsible for the conduct of business of the company at the time of alleged commission of offence. Also, it is not alleged in the complaint that the petitioner was the Director of the company in question. It is accused Nos. 2 to 5 who are said to be the Directors of the company (A-1) as alleged in the complaint. ( 13 ) AS regards the charge for offences under the Indian Penal Code viz. section 406 (breach of trust), section 420 (cheating), section 109 (abetment) and 120b (conspiracy), the allegation as contained in the complaint are to the following effect;"9. That all the accused persons misappropriated the amount which was payable to the complainant. xxx xxx xxx 11. ( 13 ) AS regards the charge for offences under the Indian Penal Code viz. section 406 (breach of trust), section 420 (cheating), section 109 (abetment) and 120b (conspiracy), the allegation as contained in the complaint are to the following effect;"9. That all the accused persons misappropriated the amount which was payable to the complainant. xxx xxx xxx 11. That all the accused have acted in collusion with each other, in furtherance of their common intention after making a deep rooted conspiracy and abetted the offence inasmuch as they failed to prevent bouncing of the cheque or to make payment subsequently. The aforesaid omission and commission have rendered all the accused jointly and severally liable to be prosecuted under 138/141 N. I. Act and 406/420/109/120b IPC. " ( 14 ) IT is thus seen that the petitioner (A. 7) is charged with the offences under IPC only on the ground of failure "to prevent bouncing of the cheque. . . ". There is no averment or imputation to bring home the charge. It is not the case of the petitioner that the petitioner was entrusted with any property of the complainant to make out a case under section 406. It is also not the case of the complainant that at the threshold of the transaction, petitioner induced the complainant to adopt any particular course of action thereby warranting a presumption of cheating under section 420 IPC. Ingredients of abetment and conspiracy under sections 109 and 120b are likewise absent in the complaint. The complaint, therefore, in my view, is bereft of the basic facts to make out any case for proceeding against the petitioner in respect of the said offences which the petitioner (A. 7) is charged with under the provisions of Indian Penal Code. ( 15 ) IT is not the case of the complainant that petitioner is the drawer of the cheque. The case is that the cheque had been issued by the Director of the company. Also absence of any of specific allegations as contemplated under section 141 of N. I. Act is of significance in so far as petitioner (accused 7) is concerned and for that reason petitioner cannot be prosecuted for the offence under section 138 of the N. I. Act. Also absence of any of specific allegations as contemplated under section 141 of N. I. Act is of significance in so far as petitioner (accused 7) is concerned and for that reason petitioner cannot be prosecuted for the offence under section 138 of the N. I. Act. The vicarious liability of a person for being prosecuted for the offence under section 138 by a company arises if at the material time such person was in-charge of or was responsible to the company for the conduct of its business. Simply because a person is an employee (management personnel) it does not mean that he fulfills the requirements so as to make him liable or to be prosecuted. ( 16 ) LET us now advert to the contentions advanced on behalf of the learned Public Prosecutor. ( 17 ) AS regards the contention relating to alternative remedy is concerned suffice it here to state that the matter stands concluded by the judgment of the Supreme Court in M/s. Pepsi Food Ltd. and Anr. v. Special Magistrate and Ors. , 1998 (1) LW (Cri) 72 wherein it was observed as under:"no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. " ( 18 ) SIMILAR view was expressed by the Court in Ashoke Chaturvedi and Ors. v. Shitul H. Chanchani and Anr. , JT 1998 (5) SC 452 and a similar contention was repelled by the Supreme Court in the following terms:". . . . . . " ( 18 ) SIMILAR view was expressed by the Court in Ashoke Chaturvedi and Ors. v. Shitul H. Chanchani and Anr. , JT 1998 (5) SC 452 and a similar contention was repelled by the Supreme Court in the following terms:". . . . . . This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in section 245 of the Criminal Procedure Code 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 is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. . . . . . " ( 19 ) WITH respect to the contention as regards the power of Police to investigate and the ambit scope and power of a Court to interfere with the same reference needs to be made to the judgment of the Privy Council in Emperor v. Khawaja Nazir Ahmed, AIR 1945 PC 18 wherein the Privy Council spelt out the power of investigation by the Police, as follows:"in India, as has been shown, there is a statutory right on the part of the Police to investigate the circumstances of an alleged cognisable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. " ( 20 ) THE plenary power of the Police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. One of them being as pointed by Privy Council thus:"[i] If no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the Police would have no authority to undertake an investigation. . . . . " ( 21 ) IN the instant case, no doubt as contended by Mr. One of them being as pointed by Privy Council thus:"[i] If no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the Police would have no authority to undertake an investigation. . . . . " ( 21 ) IN the instant case, no doubt as contended by Mr. Kasem Ali Ahmed, learned advocate, on behalf of learned Public Prosecutor that investigation in the case has been taken up pursuant to the order of learned Magistrate and the question of mala fides on the part of Police or exceeding their jurisdiction therefore do not arise. However, even assuming the allegations in the complaint to be correct if no offence is made out on the complaint of the private respondent complainant, as in the case on hand, petitioner being the person aggrieved can not be denied the remedy of invoking the power of High Court under Article 226. ( 22 ) MR. Kasem Ali Ahmed, learned counsel has relied upon the judgment of the Supreme Court in Rajesh Bajaj v. State NCT of Delhi and Ors. , reported in 1999 Cri LJ 1833 and more particularly to the following passage from that judgment:"9. 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. Nor is it necessary that the complaint should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step 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. In State of Haryana v. Bhajan Lal (1992 AIR SCW 237) (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. In State of Haryana v. Bhajan Lal (1992 AIR SCW 237) (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder (para 109 of AIR): we also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. " ( 23 ) THERE can be no dispute with the law, as laid down by the Supreme Court. As already noticed supra, this Court has observed that the substance of the allegations when read as a whole in the complaint answer and fulfill the requirements of the ingredients of the offence for being proceeded against. The test in the instant case is not fulfilled. At this stage of proceedings Court is not justified and this Court has not for that reason embarked upon an enquiry as to the reliability or genuineness of the allegations made in the FIR. It is well settled that at this stage of proceedings the test is as to whether the uncontroverted allegations as made in complaint prima facie establish the offence. The case on hand is one where in so far as the petitioner is concerned the complaints is bereft of even the basic facts which are absolutely necessary for making out the offences with which the petitioner is charged. ( 24 ) BEFORE parting with the case, it must be stated here that one other contention was raised by the learned counsel for the petitioner. Referring to and relying upon the xerox copy of the passport being annexure P-2, it was contended that as on the date of offences alleged to have been committed in each of the FIRs annexure P-3 for the period between April 9, 2002 to May 30, 2002, the petitioner was working in China during the period December 7, 2001 to January 22, 2003. The petitioner, it was strenuously urged cannot, therefore, be charged with the alleged offences or be investigated in relation thereto. Although, it is within the powers of Court to consider even materials which the accused may produce even before the commencement of a trial for the purpose of deciding whether the accused could be discharged when those documents relied upon are not in dispute, this Court is of the view that as the matter can be disposed of on other grounds, it is considered not necessary to deal with this contention. ( 25 ) ONE other contention of Mr. Kasem Ali Ahmed learned advocate needs to be considered. A single writ petition in respect of 4 complaints/firs, it was contended is not maintainable as each of the said complaints constitute a distinct cause of action. Learned counsel for the petitioner however sought to justify the filing of a single writ petition by submitting that in respect of four diverse cheques the four complaints have been instituted on identical facts, parties being the same and grounds of challenge being also same. In my view though the contention of Mr. Ahmed is not without merit the writ petition cannot be dismissed on that technical ground. In view of identity of facts the better course would be to direct the petitioner to pay Court Fees as applicable for four writ applications. It is accordingly directed that the petitioner shall within one week from date hereof deposit the deficit Court Fees. In the result, the complaints annexure P-3 collectively in so far as petitioner-accused No. 7 are concerned are liable to be and are accordingly quashed and consequently respondent Police authorities are restrained from conducting any further investigation based on the said four complaints/firs in so far as petitioner-accused No. 7 is concerned. In the facts and circumstances of the case, there shall, however, be no order as to costs. Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis.