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2003 DIGILAW 501 (CAL)

APURBA KUMAR NANDY v. TIRTHANKAR GANGULY

2003-09-23

P.K.BISWAS

body2003
PRADIP KUMAR BISWAS, J. ( 1 ) 1. By filing this application under section 401 read with section 482 of the Criminal Procedure Code, one Sri Apurba Kumar nandy, petitioner herein, has come up before this Court seeking for quashing of the proceeding being Case No. 1091-C of 2000 under section 420 of the Indian penal Code now pending before the Id. Judicial Magistrate, 5th Court, Howrah. ( 2 ) THE short facts leading to the filing of this application are as under. ( 3 ) THE present petitioner is the proprietor of M/s. Narayan Engineering construction. It has been alleged by the petitioner that the above complaint case under section 420 of the Indian Penal Code was filed before the Court of the Id. Chief Judicial Magistrate at Howrah alleging therein that the complainant company namely M/s. Quality Engineering (Baroda) Pvt. Ltd. has supplied the well power and remote control etc. to one M/s. Tools and Abrasives centre and as per the request of the complainant, the Tools and Abrasives centre delivered two pieces of well power 4400 Amps. , whose prices were Rs. 62,400/- including the sales-tax and two pieces of Remote Control, whose prices were Rs. 2,750/- each on 15th day of May, 1998 to M/s. Narayan Engineering construction. ( 4 ) IT has further been alleged in the said complaint that after receiving the aforesaid electrical goods from the Tools and Abrasives Centre, M/s. Narayan engineering Construction did not pay the amount i. e. , Rs. 71,281/- and the aforesaid amount has been deducted by the Tools and Abrasives Centre from the complainant-company i. e. M/s. Quality Engineering (Baroda) Pvt. Ltd. ( 5 ) IT has further been alleged that the Quality Engineering (Baroda) Pvt. Ltd. , thereafter sent a letter to the complainant on 4. 8. 99 for enquiring into the matter and thereafter the complainant went to the place of Narayan Engineering construction and met with its proprietor Mr. Apurba Kumar Nandy and the said accused Mr. Nandy issued a bearer cheque to the complainant without giving any seal and stamp of the bank. Subsequently, the matter was taken up with Mr. A. K. Nandy when he assured that he will pay the said amount within six months, but after expiry of the aforesaid six months, the said Mr. Apurba Kumar Nandy and the said accused Mr. Nandy issued a bearer cheque to the complainant without giving any seal and stamp of the bank. Subsequently, the matter was taken up with Mr. A. K. Nandy when he assured that he will pay the said amount within six months, but after expiry of the aforesaid six months, the said Mr. Nandy, petitioner herein, flatly refused to pay the aforesaid amount to the petitioner without any justified reason and he also went on denying the transaction in respect of the said materials with some ulterior motive and tried to cheat the petitioner. ( 6 ) IT has further been alleged that on receipt of the aforesaid complaint, the learned Court below has issued process against the present petitioner and after receiving the same he has come up before this Court with the aforesaid prayer for quashing of the criminal case. ( 7 ) IT has also been alleged that although the petitioner had taken delivery of the said machines alongwith the remote control as alleged in the said complaint, yet, the said machines were taken delivery of by the present petitioner from the Tools and Abrasives Centre who was the actual authority with whom the petitioner had made dealings and in the instant case, the Tools and Abrasives centre being the actual claimant of the same has not filed the instant complaint before the learned Court below and the said complaint is now filed by the opposite party No. 2 herein, Sri Tirthankar Ganguly who claims to be the authorised representative of the M/s. Quality Engineering (Baroda) Pvt. Ltd. and the present petitioner had no dealings whatsoever with said Sri Tirthankar Ganguly and as such he is never authorised to file any complaint laying any claim against the present petitioner. ( 8 ) IT has also been alleged that immediately after the delivery of the said two machines including the remote control there was a break down of one of the machines during the guarantee period and for such reason the petitioner had to suffer a huge loss inasmuch as the petitioner had to borrow the machines from other contractors on rental basis for completing his contract job and the aforesaid fact was also intimated to M/s. Tools and Abrasives Centre but the said authorities turned a deaf ear to that. ( 9 ) IT has further been alleged that the Tools and Abrasives Centre also did not furnish the formal price list of the said machines and the remote control upon the present petitioner at the time of taking delivery of the articles and the petitioner after query came to learn that M/s. Tools and Abrasives Centre had claimed an amount more than the actual price. ( 10 ) SO, the petitioner has come up before this Court alleging that the complainant has filed this case with false and frivolous allegations and as such continuation of the impugned proceeding should be regarded as a gross abuse of the process of the Court as the complaint petition and accompanied materials do not at all disclose any offence under section 420 of the Cr. P. C. and the complaint at the instance of Mr. Tirthankar Ganguly cannot at all be maintained inasmuch as it was M/s. Tools and Abrasives Centre who could have lodged the instant complaint for having some sort of grievance against the present petitioner. With this the petitioner has come up before this Court for the relief mentioned at the outest. ( 11 ) THE Id. advocate appearing for the petitioner Sri Saswata Gopal mukherjee in course of his submission in the connected matter has drawn my attention to the decisions reported in AIR 1974 SC 301 in the case of Hari prasad Chamaria vs. Bishun Kumar Surekha and Ors. , AIR 1974 SC 290 in the case of Superintendent and Remembrancer of Legal Affairs, W. B. vs. Birendra chandra Chakravarty, 2000 C Cr LR SC 293 in the case of Hridaya Ranjan pd. Verma and Ors. vs. State of Bihar and Anr. , 1999 C Cr LR (Cal) 386 in the case of Jawaharlal Ghosh and Ors. vs. Mihir Kr. Ghosh and State, 1999 C Cr LR (Cal)252 in the case of Jiwanmal Dugar and Anr. vs. State and Ors. , and a decision reported in (2002)1 SCC 241 in the case of S. W. Palanitkar and Ors. v. State of bihar and Anr. vs. Mihir Kr. Ghosh and State, 1999 C Cr LR (Cal)252 in the case of Jiwanmal Dugar and Anr. vs. State and Ors. , and a decision reported in (2002)1 SCC 241 in the case of S. W. Palanitkar and Ors. v. State of bihar and Anr. ( 12 ) WITH reference to the above decisions it has been contended by him that on the face of the allegation as contained in the petition of complaint it may at best be assumed without admitting the same however that there was some sort of breach of contract but those allegations, in any way, could not give rise to a criminal prosecution as in the instant case in the petition of complaint, there was nothing to show that the present petitioners had dishonest or fraudulent intention at the time when the witness No. 1 of the petition of complaint parted with the articles in favour of the petitioner's company and there is nothing in the complaint to indicate that the petitioner had induced the opposite party to give them the articles, involved in the matter. ( 13 ) IT has further been submitted by him that in the fact situation of this case, it cannot be said that the opposite parties were persuaded by misrepresentation to part with the articles involved in the transaction and that being the position it could at best be a dispute of civil nature to be decided between the parties before any question of criminal liability to be adjudicated upon. ( 14 ) SHRI Mukherjee has further contended that the essential ingredients of the offence under section 420 of I. P. C. is the existence of dishonest intention to cheat from the very beginning of the transaction. But in the four corners of the petition of complaint of the instant case, there is nothing of the kind to show that the present petitioner had any dishonest intention to cheat the opposite party from the very beginning rather, the allegations as contained in the complaint indicate that as per request of the complaint opposite party, the tools and Abrasives Centre delivered two pieces of well power and two pieces of remote control to the company of the present petitioner and there is nothing about the inducement from the side of the Narayan Engineering Construction or for that matter by the present petitioner for receiving the aforesaid goods. ( 15 ) IN this connection, it has further been contended by Shri Mukherjee that from the reading of section 420 of I. P. C. it is quite manifest that in the definition there are two separate classes of acts set forth which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. ( 16 ) HE has further submitted that the distinction between the mere breach of contract and the offence of cheating being very subtle it depends upon the intention of the accused at the time of inducement which may, however, be judged by his subsequent conduct. ( 17 ) THEREFORE, he has further submitted that it is the intention which is the gist of the offence and to hold a person guilty for the cheating it is necessary to show that he had fraudulent intention from the very beginning i. e. when he made the promise. ( 18 ) BUT here in this particular case, from the petition of complaint as also from the initial deposition as has been produced before this Court, it could not have been said at all that there was any fraudulent inducement for parting with those Articles in favour of the petitioners company. ( 19 ) SO, it has further been submitted that a mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is at the time when the offence is said to have been committed and failure on the part of the accused to keep up promise subsequently cannot be presumed that he has such culpable intention right at the beginning. ( 20 ) SO, it has been submitted on their behalf that examining the allegation as contained in the present petition of complaint in the touchstone of the aforesaid settled parameters as had been laid down by the decisions of the apex Court as also by this Court, it is quite apparent and clear that the continuation of the present proceeding on the basis of the aforesaid complaint, which however does not have any ingredient or allegation of fraudulent inducement, would simply be regarded as a mere abuse of the process of the court and acting on the settled parameters of quashing, this is a fit case where a criminal proceeding should be quashed. ( 21 ) IT has also been submitted by the petitioner that since Sri Tirthankar ganguly could neither produce any authority showing his authorisation to lodge the petition of complaint on behalf of the Tools and Abrasives Centre nor could he spell out that he was authorised to file such complaint in the initial deposition, the present petition of complaint cannot be maintained and as such the same should also be quashed on that ground also. ( 22 ) IN opposing the aforesaid contention, it has been contended on behalf of the opposite party with reference to a decision reported in 1999 C Cr LR SC 234 in the case of Rajesh Bajaj vs. State NCT of Delhi and Ors. , that it is not the requirement of law that a complaint should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging and whether or not all the ingredients have been precisely spelled out in the complaint, is not the need at the stage of quashing and 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. ( 23 ) SO, according to them, the allegation, as levelled in the petition of complaint is sufficient enough to proceed with this case against the present petitioner and as such there should be no quashing on that ground. ( 23 ) SO, according to them, the allegation, as levelled in the petition of complaint is sufficient enough to proceed with this case against the present petitioner and as such there should be no quashing on that ground. ( 24 ) AGAIN, it has been contended on their behalf that whether or not Sri tirthankar Ganguly was duly authorized representative of the Tools and abrasives Centre or that he was duly authorised to file this complaint that cannot be gone into at the stage of quashing and that should be left open to be decided during the trial on evidence and at this stage no quashing is permissible on that ground also. ( 25 ) I have given my anxious consideration with regard to the submissions made by the respective parties and I have also looked into the decisions cited at the bar with meticulous care. ( 26 ) TRUE it is that this Court retains a plenary power to quash the criminal proceeding if it appears to the Court that the continuation of the same should be regarded as an abuse of the process of the Court and the Court, in adequate circumstances, may also quash such proceeding if it appears to be essential to meet the ends at justice. It is also equally settled that such power of quashing should be exercised with extreme circumspection and that can only be used in rarest of rare cases and at that stage Court is to accept the allegations, as they are, without adding anything or subtracting anything therefrom. It is also equally settled that such power of quashing should be exercised with extreme circumspection and that can only be used in rarest of rare cases and at that stage Court is to accept the allegations, as they are, without adding anything or subtracting anything therefrom. ( 27 ) NOW keeping in mind the aforesaid parameters as laid down by the apex Court and also keeping in mind the ratio of the decisions cited at the bar in the instant case and from reading the complaint petition in its entirety and accepting the allegations contained therein to be true, I am rather constrained to hold that the basic ingredients for committing of offence of cheating have not been set forth in the petition of complaint against the present petitioner and accepting the petition of complaint in its entirety it cannot also be said that factual foundation of the offence has been laid in the complaint to proceed against the present petitioner and that being the position, the decision cited on behalf of the opposite party in 1999 C Cr LR SC 234 (supra) does not come to any aid whatsoever to the opposite party in the instant case. ( 28 ) SO, taking into consideration the parameters laid down by the Apex court as laid down in the decisions cited on behalf of the petitioner, I am rather inclined to accept the contention of the petitioner in connection with this case and consequently, I hold that is a fit case where the criminal proceeding should be quashed as ingredients of the offence of cheating punishable under section 420 of I. P. C has not been made out from the allegations contained in the petition of complaint. ( 29 ) NOW, coming to the second contention that the complainant opposite party Tirthankar Ganguly had no authority or locus standi to file the petition of complaint, I am to indicate that in view of my findings recorded hereinabove, this question has become academic and furthermore this being an issue to be decided not as a pure question of law but as a mixed question of law and fact, as a whole, those are required to be decided during the trial after taking evidence. But since I have already held that the prayer of the petitioner seeking for quashing should be allowed in the instant case the aforesaid issue shall also be treated as disposed of accordingly. ( 30 ) NOW in view of what I have stated above, I hold that the present criminal proceeding being No. 1091-C of 2000 under section 420 of the Indian Penal code pending before the Court of the Id. Judicial Magistrate, 5th Court at howrah be quashed. ( 31 ) URGENT xerox certified copy of this order, if applied for, be made available to the parties with utmost expedition. Appeal allowed.