Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 839 (GAU)

Pradip Kumar Das v. Samir Das

2005-12-16

B.K.SHARMA

body2005
1. Heard Mr. D. Majumdar, learned counsel for the petitioner and Mr. I. Uddin, learned counsel for the respondent. 2. By this application under section 482, Cr.PC, the petitioner has prayed for quashing the proceeding in CR Case No. 380/2004 registered under sections 418/420/421/427/34, IPC now pending in the court of Sub-Divisional Judicial Magistrate, Hojai, Sankardeb Nagar. 3. As per the complaint lodged with the learned Magistrate, the accused persons numbering 14 are the officers and employees of Nagaon Urban Co-operative Bank Ltd. In the complaint the present petitioner has been arrayed as accused No. 2. As per the statements made in paragraph 6 of the complaint, it is the accused Nos. 7, 12, 13 and 14 who had conspired to persuade him to open an account with the Bank. Pursuant to such persuasion, the complainant opened a Bank account and deposited an amount of Rs. 15,100 with the Bank. The witnesses of the complainant indicated in Para 7 of the complaint also opened certain more accounts with the Bank. Later on the complainant could come to know that the bank was put under lock and key and no monetary transaction could be carried out. The matter was intimated to the Head Office but to no avail. According to the complainant, accused persons collusively closed the bank and thereby not only cheated the complainant but also common people for the purpose of wrongful gain. According to the complainant, the accused persons dishonestly induced the complainant and other account holders to part with their money, which made them liable for criminal proceeding. 4. It is on the basis of the aforesaid complaint, learned Sub-Divisional Judicial Magistrate, Hotel has taken cognizance of the matter. According to the petitioner, such cognizance has been taken without considering the relevant facts and circumstances. 5. The petitioner is a Government employee and working under the capacity of Senior Inspector/Auditor in the office of the Assistant Registrar of the Co-operative Societies, Nagaon. He was deputed to work in the Bank as an Executive Officer in the interest of public service vide Annexure 3, notification dated 11.2.2002 issued by the Government of Assam in the Co-operative Department. He worked in that capacity in the Bank till 24.6.2004. He was deputed to work in the Bank as an Executive Officer in the interest of public service vide Annexure 3, notification dated 11.2.2002 issued by the Government of Assam in the Co-operative Department. He worked in that capacity in the Bank till 24.6.2004. It appears that by Annexure 4 order dated 24.6.2004, the Reserve Bank of India cancelled the licence of the Bank and it was thereafter, the petitioner was called back to his parent Department. The petitioner worked in the Bank as per the provisions of Assam Co-operative Societies Rules, 1953. Thus, it is the case of the petitioner that there is no criminal liability on his part and such liability, if any, can only be with the directors of the Bank. 6. In the above context, learned counsel for the petitioner has produced before me the certified copy of the complaint case No. 2373/2002 which has been filed by the Reserve Bank of India in the court of Chief Judicial Magistrate, Nagaon against the Bank and its directors. In the complaint case the present petitioner has been cited as one of the 12 witnesses. BIB that as it may, on a plain reading of the complaint, it appears that there is no direct accusation of the present petitioner. Whole basis of the complaint could be gathered from the statements made in paras 6, 10 and 11 of the complaint petition. There is no direct attribution of any guilt on the part of the accused/petitioner. There was no hand of the petitioner towards closure of the Branch of the Bank and the same had to be closed as per the directions of the Reserve Bank of India. The petitioner had only worked in the Branch of the Bank as was directed by the State Government. 7. In the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , the Apex Court expressed, thus : "In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct bit for this subsequent conduct is not the sole test. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct bit for this subsequent conduct is not the sole test. 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 the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed." (emphasis supplied) 8. In the said case, the Apex Court finding that the ingredients of the offence of cheating and its allied offences had not been made out, interfered with the order of the High Court and quashed the criminal proceeding. 9. In the case of G.V. Rao v. L.H.V. Prasad (2000) 3 SCC 693 , the Apex Court stated, thus : "As mentioned above. Section 415 has two parts. While in the first part, the persons must 'dishonestly' or 'fraudulently' induce the complainant to deliver any property; I the second part, the persons should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this court in Jasantrai Manilal Akhaney v. State of Bombay a guilty intention is an essential ingredient of the1 offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating mens real on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 10. It was also observed in Mahadeo Prasad v. State of W.B. that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 10. Cautioning against issuance of process so that it should not be an instrument in the hand of the private complainant as vendetta to harass a person needlessly, the Apex Court in Punjab National Bank v. Surendra Prasad Sinha 1993 Supp (1) SCO 499 has this to say in para 6 : "It is also salutary to note that judicial process should not be an. instrument of oppression or needless harassment. The complaint was laid imp leading the chairman, the managing director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice bit it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complainant against all the appellants without any prima facie case to harass them for vendetta." 11. Similarity, in the case of Madavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 , the Apex Court has stated that: "the legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to conspire whether it is expedient and in the interest of justice to permit a prosecution to continue. It is also for the court to take into consideration any special features which appear in a particular case to conspire whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage." 12. In the instant case, there is nothing in the complaint that the petitioner had any domain over the amount deposited by the complainant and that he dishonestly converted the same to his own use and thereby cheated the complainant so as to satisfy the ingredients of the provisions of section under which the complaint has been registered. In the case of Medchi Chemical & Pharma (P.) Ltd. v. Biological Ltd., (2000) 3 SCC 269 , the Apex Court dealing with the question of exercise of jurisdiction under inherent power as envisaged under section 482, Cr.PC observed that if the court on a perusal of the complaint conies to a conclusion that the allegations levelled in the complaint or charge sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. 13. On the basis of materials available on record, I am of the considered opinion that no prima facie offence is established against the accused/petitioner so as to proceed against him in the aforesaid criminal case. If the proceeding is allowed to stand, same will be an abuse of the process of the court and contrary to the principles of natural justice. The decisions on which the learned counsel for the petitioner has placed reliance also support the case of the petitioner. 14. In view of the above, the revision application stands allowed. The complaint case No. 380/2004 now pending in the Court of Additional Chief Judicial Magistrate, Hojai, Sankardeb Nagar stands quashed, so far as the same relates to the petitioner.