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2005 DIGILAW 192 (CAL)

DUNCAN INDUSTRIES LTD. v. STATE

2005-03-18

AMIT TALUKDAR

body2005
Amit Talukdar ( 1 ) FOR quashing the proceedings of Case No. C-2617 of 2004 pending before the Learned Judicial Magistrate, 9th Court, Alipore the Petitioners hereinabove have come up before this Court. In this Application they seek to retrieve themselves from the stage of the proceedings of Case No. C-2617 of 2004 whereupon on the basis of the Petition of Complaint filed by the opposite Parties they were directed to answer the summons in respect of committing the offence punishable under Section 406 of the Indian Penal code. ( 2 ) SHRI Debasish Roy learned Counsel appearing in support of the application has made three-fold submissions in support of his prayer for quashing. At the first instance Shri Roy submitted that since the Company court has already directed payment of certain amount of money in respect of the fixed deposits of the Opposite Parties the strength in the Petition of compliant looses its force. In this context he referred to the Order passed by this Court in C. P No. 478 of 2003 (Page 78 of the Application) where monthly instalments were directed by the Court on the prayer of the Petitioner/company. ( 3 ) ON the second instance Shri Roy submitted that the provisions of section 406 of the Indian Penal Code were not attracted as the allegations in the Petition of Complaint did not satisfy the ingredients of the said offence. ( 4 ) LASTLY, Shri Roy by referring to a Division Bench decision of this court in Sasadhar Acharjya and Anr. v. Sir Charles Tegart and Ors. , Vol. XXXV cal WN 782 submitted that the Criminal Procedure Code does not contemplate a joint petition of complaint. As such, the Petition of Complaint preferred by the Complainants has to be quashed on that sole ground. ( 5 ) SHRI Roy summed up his submissions on the basis of the aforesaid points and stated that the further proceedings should be quashed as further continuation thereof would be an abuse of process of law. ( 6 ) SHRI Q. A. M. Firoz, learned Advocate appearing on behalf of the opposite Parties disputed the stand of Shri Roy. ( 5 ) SHRI Roy summed up his submissions on the basis of the aforesaid points and stated that the further proceedings should be quashed as further continuation thereof would be an abuse of process of law. ( 6 ) SHRI Q. A. M. Firoz, learned Advocate appearing on behalf of the opposite Parties disputed the stand of Shri Roy. He submitted that not a single farthing was received by his clients and that apart, he submitted that the Petition of Complaint did make out a prima facie case against the Petitioners and rightly they were summoned to answer the said allegations in the pending proceeding and it was only necessary that they should appear and participate in the same in accordance with the process of law. ( 7 ) SHRI Firoz further submitted that the order passed by the Court in its Company Jurisdiction does not have any impact in the present proceeding as these are all different aspects altogether and cannot be mixed up. He prayed for dismissal of the Application. ( 8 ) WHILE acting on a prayer for quashing this Court cannot lose sight of the well-settled principles of law governing the field in this respect and it has to keep in mind the guidelines thereof. The latest decision of the Supreme court in State of M. P. v. Awadh Kishore Gupta and Ors. , 2004 SCC (Cr) 353 : 2004 C Cr LR (SC) 127 has held that the inherent jurisdiction of the Court for quashing has to be exercised sparingly and very carefully with caution-to prevent abuse of process of Court and (ii) to otherwise secure the ends of justice. ( 9 ) THIS Court has to ascertain as to whether the non-intervention by this Court in respect of the prayer of the petitioners would result in violation of either of the two categories. ( 10 ) FROM a bare perusal of the Petition of Complaint, lest it may have any effect on the main Trial this Court refrains from making any observation upon the same. But, suffice it to say that it cannot be said there is absolutely no materials which should not have persuaded the learned Magistrate to take cognizance. ( 10 ) FROM a bare perusal of the Petition of Complaint, lest it may have any effect on the main Trial this Court refrains from making any observation upon the same. But, suffice it to say that it cannot be said there is absolutely no materials which should not have persuaded the learned Magistrate to take cognizance. This Court feels that for the purpose of switching on to the provisions of Section 190 (1) (b) of the Code of Criminal Procedure (hereinafter referred to as the said Code) and thereafter proceeding in terms of Section 200 of the said Code there were sufficient materials and the learned Magistrate did what was required under the law and this Court does not feel inclined to quash the same and as it is of the opinion that quashment of the said proceeding would neither secure the ends of justice or prevent the abuse of process of law. Further analysis of the materials would not be appropriate to be discussed as a supporting base for upholding the proceeding by this Court as the same may have an unconscious effect on the proceeding at the latter stage and this Court finds that at this stage the only view that can be taken by it is to refuse to interfere in respect of the prayer for quashment. ( 11 ) THE submission of Shri Roy in the light of the objection by Shri firoz that in terms of the direction of this Court in its Company Jurisdiction the Petitioners have been paying monthly instalments cannot be looked into at this stage as on the basis of annexures and supporting documents no finding can be arrived at unless evidence is gone into. Simply on the basis of xerox copies of some documents prayer for quashing cannot be entertained that is not permissible at this stage. ( 12 ) LASTLY with regard to the maintainability of the proceeding on account of there being more than one complainant is taken up for consideration in the light of the Division Bench decision of this Court in Sasadhar Acharjya (supra ). Sir John Lort-Williams, J. speaking for the said Division Bench of Sir john Lort-Williams and Sir Sarat Kumar Ghosh, JJ. had made this observation in the said Division Bench decision :-"the duties of a Magistrate under Section 200, Cr. RC. Sir John Lort-Williams, J. speaking for the said Division Bench of Sir john Lort-Williams and Sir Sarat Kumar Ghosh, JJ. had made this observation in the said Division Bench decision :-"the duties of a Magistrate under Section 200, Cr. RC. , make this clear, because in taking cognizance of an offence on complaint he must at once examine the complainant upon oath and it is obvious that if there are two or more complainants on the same compliant, it is physically impossible to fulfil the provisions of that section. " ( 13 ) THE Division Bench decision of Sasadhar Acharjya (supra)rendered by Sir' John Lort-Williams and Sir Sarat Kumar Ghose, JJ. has whole some impact on this Single Bench under ordinary circumstances. But, this Court is of the extreme humble view that something is required to be seen between the Division Bench decision of Sasadhar Acharjya (supra)rendered on March 6, 1931 and the submission made by Shri Roy on the second day of March, 2005 this Court with utmost reverence to the said division Bench of Sir John Lort-Williams and Sir Sarat Kumar Ghose, JJ in sasadhar Acharjya (supra) feels that perhaps the said Division Bench decision of Sasadhar Acharjya (supra) may not have full scale application in the present case although Shri Roy is perfectly right in the context that more than one complainant in a single complaint was not permissible in the context of the decision of Sasadhar Acharjya (supra ). However, this Court feels that the said decision of Sir John Lort-Williams and Sir Sarat Kumar Ghose, JJ. in Sasadhar acharjya (supra) was in the context of the Code of Criminal Procedure of 1898. ( 14 ) TRUE the framers of the New Code of 1973 (Act 2 of 1974) kept the holistic provisions of Section 200 of the said Code as it was under the old Code. However, there has been some subtle changes effected which makes all the difference and persuades this Court in a very humble manner to distinguish with the said Division Bench decision of Sasadhar Acharjya (supra ). ( 15 ) FOR appreciation of the distinction it would be necessary to quote the provisions of Section 200 of the Code of Criminal Procedure, 1898 vis-a-vis the provisions of Section 200 of the Code of Criminal Procedure, 1973. Code of Criminal Procedure. 1898"200. ( 15 ) FOR appreciation of the distinction it would be necessary to quote the provisions of Section 200 of the Code of Criminal Procedure, 1898 vis-a-vis the provisions of Section 200 of the Code of Criminal Procedure, 1973. Code of Criminal Procedure. 1898"200. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by complainant and the witnesses, and also by the Magistrate : provided as follows :- (a) * * * (aa) * * * (b) * * * (C) * * * code of Criminal Procedure. 1973 200. Examination of complainant.-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : provided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". ( 16 ) AT once a very sublime distinction would surface; that is in the Old code the phrase at once punctuated between the words 'shall' and 'examine' but in the New Code the phrase shall examine is missing. ( 17 ) THIS explains the position. ( 18 ) UNDER the Old Code of 1898 a complaint has been defined in section 4 (h ). ' (h) "complaint" means the allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police-officer :' ( 19 ) IN the New Code complaint has been defined in Section 2 (d ). 2. 2. Definitions.-In this Code, unless the context otherwise requires,-' (a) * * * * * * ' (b) * * * * * * ' (c) * * * * * * ' (d) "complaint" means any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 'explanation.- * * * * * * ( 20 ) MORE of less the position has remained the same. ( 21 ) THE word complainant used in Section 200 of the said Code which denotes a singular number but if read in the context of the General clauses Act of 1867 singular includes plural and as such, if it is read in that context it can easily be interpreted that a complaint may be presented by two or more persons and the Magistrate can examine either of them or any one of them and if it is found that the fact constituting such offence is made out he is free to proceed further as contemplated in the provisions beyond Section 200 of the said Code. ( 22 ) IN view of the fact that the phrase 'at once' between shall and examine being omitted in the New Code there is no bar in filing of a complaint by more than one person as in the present case the cause of action was identical the voice's were many; but, their agony was singular. As such there is no force in the said submission of Shri Roy in the present context. ( 23 ) THAT apart this Court cannot resist its temptation from referring to a latter Division Bench decision of Charles Bartley and Sir Senegal Narsinga rau, JJ. of this Court in Uzal Khan v. Puma Chandra Bhaduri and Anr. , Vol. XLIII Cal WN 527 where the said Division Bench of our Court speaking through Charles Bartley, J. dealing with a similar situation found :"a written complaint signed by two persons is not contemplated by the Code of Criminal Procedure. But, however, invalid it is in form, it is a petition of complaint. In the present case the learned Magistrate examined one of the two persons who signed that complaint. But, however, invalid it is in form, it is a petition of complaint. In the present case the learned Magistrate examined one of the two persons who signed that complaint. He had then before him an allegation made orally to him with a view to his taking action under the Code of Criminal Procedure that some persons had committed an offence. In other words, he had before him a compliant within the meaning of Section 4 (h) of the Code of Criminal Procedure. On that complaint he had jurisdiction to issue process which he did and we are unable to agree with the view taken by the learned Judge that an order summoning the accused was bad in law. ". ( 24 ) THE earlier Division Bench decision of Sasadhar Acharjya (supra)was also taken into account by the said Division Bench decision of our Court in Uzal Khan (supra) rendered by Charles Bartley and Sir Senegal Narsinga rau, JJ. ( 25 ) THE compact analysis of the entire aspect of the matter does not make this Court feel inclined to interfere with the prayer for quashing and it spurns such prayer. ( 26 ) THAT apart, even if it may be of academic interest in the present case but it has to be understood in its true light. If there is any lacuna in the complaint it is the complainant who is affected and the accused cannot reap any benefit therefrom. This point is clarified in its academic impact and it would be understood that it is not an opinion of the present Petition of complaint. ( 27 ) ALTHOUGH it has. not been argued at the Bar but lest as this Order may go sub silentio as an important point was not addressed this Court suo motu considers the same and decides it on its own volition as the said point has been taken in the grounds of the revisional application i. e. , jurisdiction. It has been averred that the company of the petitioners was situated in 31, n. S. Road, Kolkata-700 001 which falls within the jurisdiction of the learned chief Metropolitan Magistrate, Kolkata and the deposit and refusal with regard to the dues took place at the said address whereas the complaint has been filed before the learned Sub-divisional Judicial Magistrate, Alipore which was beyond jurisdiction. ( 28 ) THIS ground, although not addressed, has to be understood within the sweep of Section 179 of the said Code which reads as follows :"779. Offence triable where act is done or consequence ensues.-When an act offence by reason of anything which has been done and of a consequence which has ensured, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. ". ( 29 ) IN other words, it would show that although the company of the petitioners may be situated beyond the territorial jurisdiction of Alipore Court yet the consequence that has ensued on account of non-payment of fixed deposit dues of the petitioners in their respective residential addresses i. e. , the Government Housing Estate of Karaya Road which fell within the jurisdiction of the learned Sub-divisional Judicial Magistrate, Alipore there cannot be said to be any jurisdictional irregularity in view of the provisions of Section 179 of the said Code. ( 30 ) IF we see this situation has been very well taken care of more particularly in sub-section (4) of Section 181 of the said Code which reads as follows : "181. Place of trial in case of certain offences. (1) * * * " (2) * * * " (3) * * * " (4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. " (5) * * * ( 31 ) BY virtue of the said position the said question also can be taken care of. To be very fair to Shri Roy he did not canvass this point but, however, as the same finds place in the' grounds of the application this Court thought it fit to address itself in that direction and it has done so. ( 32 ) ACCORDINGLY, this application is disposed of in the light of the aforesaid finding. To be very fair to Shri Roy he did not canvass this point but, however, as the same finds place in the' grounds of the application this Court thought it fit to address itself in that direction and it has done so. ( 32 ) ACCORDINGLY, this application is disposed of in the light of the aforesaid finding. But, however, it is made absolutely clear that it would be open to the petitioners to canvass all the points available to them when they enter upon their defence or even on an earlier stage as known to law [section 245 (2) of the said Code] which if taken before the learned Magistrate would have to be decided independently of this Order on its intrinsic merit. ( 33 ) ANY observation made in this application would be deemed to be for the purpose of proper disposal of the same and cannot have any binding effect even unconsciously on the merit of the proceeding before the learned magistrate who would be absolutely free to proceed in accordance with his independent judgment. ( 34 ) APPLICATION disposed of. ( 35 ) OFFICE is directed to communicate this Order to the learned Judicial magistrate, 9th Court, Alipore.