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2003 DIGILAW 426 (PAT)

P. S. Das Gupta v. State Of Bihar

2003-04-16

INDU PRABHA SINGH

body2003
Judgment 1. By the Court.This is an application under Section 482 of the Code of Criminal Procedure, (in short the Code). It is directed against the order dated 5.10.2002 passed in Complaint Case No. 1431 of 2000 by the learned Judicial Magistrate, 1st Class, Muzaffarpur by which he ordered that framing of the charge in the case will be kept in abeyance till money is deposited in favour of the complainant-opposite party No. 2. By this order the learned Judicial Magistrate has further directed that all the accused persons shall have to remain present in the Court notwithstanding the fact that they have been allowed to be represented under Section 205 of the Code. 2. The petitioners have contended that earlier also they had come before this Court for quashing the order of the order of cognizance taken against them on 1.9.2000 vide Cr. Misc. No. 5685 of 2001. They had filed a petition for their representation in the aforesaid case under the provisions of Section 205 of the Code, (being Cr. Misc. No. 3887 of 2001). Both the aforesaid applications were taken up together and heard and disposed of by Hon ble Mr. Justice P.K. Deb by which this Court allowed the Chairman V.D.Sarin and P.S.Das Gupta (petitioner No. 1) to be allowed to be represented under Section 205 of the Code, while a similar prayer made by petitioner No. 2, N.D. Arnbasta, was refused. The concluding portion of the said order ran as follows : "But it is hoped that the petitioners shall maintain their dignity to get rid of such sort of cases by mutualisation of the matter with opposite party." 3. The short facts of this case are that opposite party No. 2, Anil Agarwal, had filed a complaint petition on 6.7.2000 before the Chief Judicial Magistrate, Muzaffarpur against the present petitioners and others alleging that he was appointed distributor (special stockist) by an agreement dated 19.9.1992 and was executing the work of the Company I.D.P.L. However, on 1.3.1995 he was informed that his stockistship has been terminated against which he filed a Title Suit No. 46/95 before Munsif (East) Muzaffarpur. Three accused persons of this case including the present petitioners came to Muzaffarpur and requested the opposite party No. 2 to withdraw the title suit on the assurance that his pending bills will be settled. Three accused persons of this case including the present petitioners came to Muzaffarpur and requested the opposite party No. 2 to withdraw the title suit on the assurance that his pending bills will be settled. On this assurance opposite party No. 2 withdrew the title suit on 12.8.1996 and a final balance of Rs. 82,735/- was shown. However, he was required to deposit a sum of Rs. 2,00,000/- for being appointed as special stockist. Accordingly, he deposited this amount but supply of medicine to him was stopped. On this false assurance the opposite party No. 2 had withdrawn his title suit. Being aggrieved by this action all the present petitioners had filed the complaint petition as mentioned above. 4. The petitioners have contended that M/s I.D.P.L. is a Government of India undertaking but in the complaint petition it has not been impleaded as party. The Chairman V.D. Sarin was not even in the employment of the Company in the year 1995. He joined the Company in October, 1997. Petitioner P.S. Das Gupta was also not in the employment of the Company on the alleged date of occurrence as he joined it in March, 1997. It has been further contended that no transaction was made in the personal names of these three accused persons rather it was the Company to which the advance of Rs. 2,00.000/- was paid. Even now the Company (I.D.P.L) does not deny it. The petitioners are only the employees of the Company and it can not be said that they got any advantage out of this advance of Rs, 2,00,000/-. Three witnesses examined on behalf of the complainant has spoken about the transaction of the business with the Company and not with the present petitioners. From the order passed by this Court it would not appear that the petitioner were directed to pay the amount. M/s I.D.P.L. is a sick industry and the matter is pending in B.I.F.R. and no civil suit could have been launched against it. Shri V.K. Sarin had already retired on 1.10.2002. The Impugned order is not based on any law and is wholly illegal. On these grounds amongst others it has been contended that the impugned order be quashed and in the meantime further proceeding be stayed. 5. The parties have been heard at length on this petition. Shri V.K. Sarin had already retired on 1.10.2002. The Impugned order is not based on any law and is wholly illegal. On these grounds amongst others it has been contended that the impugned order be quashed and in the meantime further proceeding be stayed. 5. The parties have been heard at length on this petition. On behalf of the petitioners it has been submitted that they can not be held personally liable for any dues of M/s I.D.P.L. which is a Government of India undertaking. It is not the case of the opposite party No. 2 that it has advanced any money to the present petitioners. From the prosecution case itself it would appear that the money was advanced to M/s I.D.P.L. and not to the present petitioners in their personal capacity. It has further been submitted that petitioner No. 1, P.S. Das Gupta was not in the employment of the Company on the alleged date of the occurrence, since he joined the organisation in the year 1997. From the impugned order it would appear that the learned Magistrate has passed it on the strength of the direction given by this Court in Cr. Misc. Nos. 5685/2001 and 3887 of 2001. It appears that both these applications were heard analogous and were disposed of by a common judgment by this Court by Hon ble Mr. Justice P.K. Deb. it appears that the learned Magistrate has passed the impugned order on the strength of the following observation made by this Court by order dated 26.9.2001. P.K. Deb, J has observed as follows in the concluding portion of this order : "But it is hoped that the petitioners shall maintain their dignity to get rid of such sort of cases by mutualisation of the matter with the opposite party." 6. On behalf of the petitioners it has been submitted that they have not been able to make out any meaning from the aforesaid observation made by P.K. Deb, J. It has also been pointed out that in any case no direction was passed by the Hon ble Judge. It has been submitted that only a pious wish has been expressed by P.K. Deb, J. that the petitioners could maintain their dignity. It has been submitted that only a pious wish has been expressed by P.K. Deb, J. that the petitioners could maintain their dignity. It has been strongly submitted by the learned counsel for the petitioners that they have not been able to find out what the Hon ble Court meant "mutualisation of the matter" as observed in the order dated 26.9.2001. However, the learned trial Court has interpretated the order to mean that before framing of the charge the petitioners have to deposit the money in favour of opposite party No. 2. The liability of the present petitioners in their individual capacity has had advanced the money to M/s I.D.P.L. and not to the present petitioners. Even this Court in the order dated 26.9.2001 has observed as follows : "Be it what it may, the position remains that I.D.P.L is obliged to make payment/dues to the opposite party No. 2 and it is better to the I.D.P.L to make payment and get rid of such sort of cases considering the sickness of the industry itself." 7. From this observation made by this Court in the order dated 26.9.2001 it becomes abundently clear that even this Court had recognized the liability of M/s I.D.P.L. and not any liability of the present petitioners. It was M/s I.D.P.L which was directed to made the payment. The aforesaid observation made by P.K. Deb, J. leaves no room for doubt that no liability can be fixed on the present petitioners. Inspite of it is not clear how the iearned trial Court could rush to the conclusion that before framing of the charge the petitioners have to make certain payment to opposite party No. 2. As noticed above, even mutualisation can not be said to have any such meaning. From the observation of this Court as quoted above is clear that it is M/s I.D.P.L. and not the present petitioners who have any liability in the matter. It is, therefore, really surprising how could the learned Court below passed the order the framing of the charge will be deferred till the payment of dues of opposite party No. 2 by the present petitioners. To begin with, there is no such law which requires the payment of money, even if defalcated by the accused, before framing of the charge. To begin with, there is no such law which requires the payment of money, even if defalcated by the accused, before framing of the charge. The case is subjudice and the alleged offence, if any, committed by the accused has to be decided at time of the judgment. Under this circumstance I find that there is absolutely no foundation for the learned Court below to call upon the present petitioners to deposit the dues of opposite party No. 2 and in default to postpone the framing of the charge. This procedure adopted by the learned Magistrate is some thing completely unknown to law and has got no foundation in the order dated 26.9.2001 passed by this Court. 8. From the detailed discussions made above it becomes perfectly clear to me that there is no foundation in law for passing the impugned order which can not be sustained. It is quashed. The learned Magistrate is directed to proceed with the trial in accordance with law from the stage of framing of the charge. 9. With this observation this application is disposed of.