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2007 DIGILAW 439 (CAL)

Sunil Gupta v. The State

2007-06-19

S.P.TALUKDAR

body2007
Judgment :- (1.) THE petitioners by filing the instant application under Section 482 of the Code of Criminal Procedure, sought for setting aside the Order dated 30th November, 2005 by the learned 5th Court of Metropolitan Magistrate, Calcutta in connection with Case No. C-882/2005. (2.) GRIEVANCES of the petitioners as ventilated in the application, may briefly be stated as follows: (3.) OPPOSITE Party No. 2 as complainant filed a petition of complainant before the learned Court of C.M.M. of Calcutta. He alleged that he along with the accused persons were the directors of M/s. Gupta Biscuits Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1956, having its Registered Office at 12, N.S. Road, P.S. Asansol, District-Burdwan. The said Gupta Biscuits Pvt. Ltd. was formed from the income derived from the joint family business and property namely Studio Kamalaya and Asansol consumer Agency left behind by the complainants father, since deceased. Accused Nos. 1 and 2 are his brothers and accused No. 3 being the wife of accused No. 2 is the sister-in-law of the complainant. Complainant is a doctor by profession and due to his pre-occupation, he entrusted the affairs of the family business of Gupta Biscuits upon the accused persons. Taking advantage of the situation, the said accused persons quite often used to make him sign on blank letter heads and papers. This, however, did not create any doubt in the mind of the complainant. Unfortunately, on 7th April, 1986, the said accused persons without knowledge and consent of the complainant by a joint resolution mortgaged the companys property as well as its fixed assets, present and future, in consideration of a loan amount of Rs. 17.90 lakhs from the Andhra bank and thereby committed breach of trust. The complainant was not even aware as to how his signature was fraudulently obtained in the resolution as on the relevant date being 7th April, 1986, he was pursuing his higher studies in Patna University. In view of the said resolution, the accused No. 1 started availing credit facilities from the bank as he was given extensive power to borrow money on behalf of the Company and operate with the bank. After borrowing the said loan amount, the accused No. 1, in connivance with other accused persons mis-appropriated the entire amount without making any effort to repay the same and, thus, committed misappropriation of property. After borrowing the said loan amount, the accused No. 1, in connivance with other accused persons mis-appropriated the entire amount without making any effort to repay the same and, thus, committed misappropriation of property. Due to default in the repayment of the loan, the Andhra Bank filed a title suit being No. 85 of 1989 before the learned Court of Assistant District Judge at asansol, against the directors i.e., the accused persons and the complainant. Summons were received by accused No. 2 and he in collusion with other accused persons suppressed the summons from the complainant who at the relevant time was serving as doctor in Dihika Primary Health Centre at Asansol. All the accused persons after appearing in the said suit through their learned advocate filed single Vokalatnama and thereby the signature of the complainant was forged though the complainant was unaware of the same. The said case was transferred to Debt. Recovery Tribunal-II at Kolkata and was. re-numbered as Case No. 251 of 1996. The accused persons again filed Vokalatnama dated 19.06.97 as well as written statement as on 24.06.97 and there too, blatently forged the signature of the complainant. (4.) ON 30.06.97 the Tribunal directed the parties to file evidence on affidavit. The case was fixed on 13.02.98 for peremptory hearing. The bank filed evidence on affidavit on 13.02.98. One Advocate Mr. Amit Kumar Gupta filed another single Vokalatnama for all the directors of the Company with the forged signature of the complainant. (5.) IN connection with a revisional application filed by the accused persons, the Honble High Court granted them leave to file evidence on affidavit by 14.08.98 as a last change but they did not take any steps. The suit was finally heard exparte on 18.01.2000 since the accused persons did not appear. The Tribunal by judgment dated 13.03.2000 directed the learned register to prepare certificate in favour of the bank for Rs. 18,58,055.07 with interest at the rate of 16% per annum from 13.07.89 till realization. On the basis of such certificate recovery proceeding was started. Ultimately, the joint family business property was sold out to a third party. All these happened behind the back of the present petitioner who had been in USA on and from 20.12.98 to June 2000. (6.) ON his return, he found a third party in respect of such company property. On the basis of such certificate recovery proceeding was started. Ultimately, the joint family business property was sold out to a third party. All these happened behind the back of the present petitioner who had been in USA on and from 20.12.98 to June 2000. (6.) ON his return, he found a third party in respect of such company property. The petitioner could only learn about all such facts after a search was conducted through a clerk. (7.) HE never signed on any Court document relating to the said title suit, nor any signature in the purported documents was that of the complainant. (8.) THE complainant approached the Tribunal for setting aside of the order but it was rejected. On 12.07.2004, the complainant Came to learn that one Advocate named Kama) Chakraberty had come with some papers pertaining to the attachment of the complainants other joint family properties. (9.) IT was alleged that the complainant could not guess about such dishonest and fraudulent intention of the accused persons and, if, he could know about it, he would not have had certainly signed on the blank papers. Complainant alleged that the accused persons thereby committed offences punishable under Sections 120b/ 419/466/471/406/420/403 of I.P.C.A written complainant was lodged in the new Market Police Station on 20. 08. 04 but to no avail. (10.) THE complainant in his initial deposition recorded under Section 200 of the Code of Criminal Procedure sought to support the allegations made in the petition of complainant. It was, thus, alleged that the accused persons entered appearance in connection with the case being Title Suit no. 85 of 1989, where the complainant was also one of the defendants, by filing a single Vokalatnama and this was done by forging his signature. This was also followed up in an identical manner by forging the signature in the vokalatnama and the written statement after the case was transferred to the debt. Recovery Tribunal. The petitioners in the present application claimed that the alleged offences being committed in respect of the documents having direct bearing with the proceedings in the Courts of law, the restriction imposed under Section 195 (b) of the Code of Criminal Procedure comes into operation. In such circumstances, the petitioners sought for setting aside of the impugned order as well as for quashing further proceedings of the said case being No. C-882 of 2005. In such circumstances, the petitioners sought for setting aside of the impugned order as well as for quashing further proceedings of the said case being No. C-882 of 2005. (11.) A petition dated 02.09.05 was filed by the accused persons praying for recalling process issued against them on the ground that the complainant is barred under Section 195 (1) (b) of the Code of Criminal Procedure, as also for the reason that the petition does not contain a list of witnesses in compliance with Section 204 (2) of the Code. (12.) THE learned Trial Court while considering the said grievance was of the view that Section 195 (1) (b) of the Code of Criminal Procedure is applicable only when the offence alleged is committed during the time when the document was in the custody of the Court. According to the learned Trial Court, in the case under reference, pending before it, the offence was committed prior to production of the document before the Court and as such, the learned Court held that the Criminal Court can very well take cognizance on the basis of a private complaint. Learned Counsel for the petitioners submitted that the learned court failed to appreciate the scope of Section 195 (1) (b) of the Code of Criminal procedure in its proper perspective. Section 195 of the Code of Criminal procedure relates to "prosecution for contempt of lawful authority of public servants, for offences against justice and for offences relating to documents given in evidence.” It follows therefrom that no Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal code, namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relating to, any proceeding in any Court, or (ii) Of any offence described in Section 463, or punishable under section 471, Section 475 or Section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, (iii) Of any criminal conspiracy to commit, or attempt to commit, or abetment of, any offence specified in sub-clause (1) or sub-clause (ii). Except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. (13.) BY virtue of the Criminal Law (Amendment) Act, 2005, (2 of 2006), section 3 there had been substitution to the following extent:-"except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." (14.) SUCH amendment, however, was given effect to from 16.04.06. (15.) MR. Joy Sengupta as learned Counsel for the petitioners submitted that the complaint having not been filed by the learned Court, Section 195 (1) (VI) (i) of the Code of Criminal Procedure would stand as a bar and law does not permit continuation of the present proceeding. Mr. Sengupta further submitted that no prima facie case could be made out from the allegations made in the complaint. (16.) IT was submitted that the allegations made in the complaint could not or did not constitute any offence under Section 466 or Section 471 of the Indian Penal Code. The present case rests on the allegations that signatures of the complainant were forged and the same were used in Vokalatnama as well as in the written statement filed before the Court. It had also been alleged that the signatures obtained on good faith on blank papers were also used without knowledge and consent of the complainant. (17.) ACCORDING to learned Counsel for the petitioners, the case does not relate to any valuable security or a will. It does not also relate to any authority to adapt a son nor anything as contained in Section 467 of the Indian Penal Code. Mr. Sengupta than added that Section 471 of I.P.C. also cannot have any application to the facts and circumstances of the case. (18.) IT was then contended that assuming the allegations to be true and accepting them for the sake of argument, there could be an offence under section 193 of the Indian Penal Code. In that event, it was submitted by Mr. Sengupta, that Section 195 (1) (b) (1) of the Code of Criminal Procedure lays down that such a complaint was required to be filed by the learned Court. In that event, it was submitted by Mr. Sengupta, that Section 195 (1) (b) (1) of the Code of Criminal Procedure lays down that such a complaint was required to be filed by the learned Court. It was further mentioned that the allegations constituting the offence under Section 493 of I.P.C. cannot be segregated from the rest as made in the complaint and as such, the entire proceeding is liable to be quashed. On the other hand, Mr. Bhattacharya appearing for the learned Counsel for the Opposite Party/ complainant categorically submitted that there had been total mis-appreciation of Section 195 (1) (b) (1) of the Code of Criminal Procedure. In the case of Ashok kr. Yagnik v. State of West Bengal and Anr., reported in 2005 (2) C Cr. LR (Cal)348, the learned Single Bench of this Court held that if there is prima facie allegation, there could be no jurisdiction for quashing of the criminal proceeding. In the said case, the petitioner/accused was entrusted by the complainant to look after her suit. The petitioner, however, forged signatures of the complainant in the petitions filed in the suit on her behalf. (19.) REFERENCE was also made to the decision in the case of Adalat prasad v. Roopat Jindal and Ors. , reported in 2004 C Cr. LR (SC) 1001. This was relied upon in the context of the submission made by learned Counsel that the learned Court of Magistrate has no power of review or inherent power to recall the process. If the Magistrate issued process without any evidence, the remedy lies in approaching the Higher Court. In the case of Ikbal Singh marwah and Anr. v. Meenakshi Marwah and Anr. , reported in 2005 (4) SCC 370 , the Apex Court dealt with the provision under Section 195 (1) (b) (i) of Cr.P.C. The aforesaid provision clearly lays down that no Court shall take cognizance of an offence relating to forgery of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. The question arises as to whether such bar would apply where forgery of a document was allegedly committed before the said document was produced in Court. The question arises as to whether such bar would apply where forgery of a document was allegedly committed before the said document was produced in Court. The supreme Court in the case of Sachida Nand Singh v. State of Bihar, reported in 1998 SCC (Cri) 660 observed that the said bar would not be applicable to a case where forgery of the document was committed before the document was produced in a Court. A different view was, however, taken in the case of surjit Singh v. Balbir Singh, reported in 1996 SCC (Cri) 521. The appeal was placed before the five-Judges Bench of the Apex Court. It was clearly held that the bar under Section 115 (1) (b) (ii) that no Court shall take cognizance of any such offence except on the complaint in writing of the Court concerned would be attracted only when the offences enumerated in Section 195 (1) (b)(ii) have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court that is during the time when the document was in custodia legis. (20.) THE Apex Court, in the said case, further held that if such offence is committed prior to its production or being given in evidence in Court, no complaint by Court would be necessary and a private complaint would be maintainable. (21.) WHILE interpreting the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court"-the Apex Court observed that as a general rule, while interpreting statute, the internal aids like heading, language employed in, cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning. (22.) THE Apex Court in the said case further observed that while interpreting a statute, a purposive construction is to be made and an unworkable and impracticable result should be avoided. (23.) IN the present case, the alleged forgery was committed prior to production of the document before the learned Court. In respect of vokalatnama, allegedly signature of the complainant was obtained before filing of the same in Court. Mr. Sk. (23.) IN the present case, the alleged forgery was committed prior to production of the document before the learned Court. In respect of vokalatnama, allegedly signature of the complainant was obtained before filing of the same in Court. Mr. Sk. Kasem Ali who appeared as learned counsel for the opposite party/state emphatically contended that plea raised in the present application has no merit and it cannot be sustained. According to him, quashing of the proceeding on the ground as sought to have been made out will amount to abuse of the process of Court. (24.) CONSIDERING all such facts and circumstances, I find no reason so as to hold that the further proceeding of the case before the learned Court of magistrate will by any stretch of imagination impermissible. (25.) THE order under challenge thus does not seem to suffer from any impropriety. It calls for no interference in exercise of this Courts power under section 482 of Cr.P.C. (26.) THE present application being C.R.R. No. 223 of 2006 be dismissed. (27.) INTERIM order, if any, stands vacated. (28.) CRIMINAL department is directed to supply xerox certified copy of the judgment as expeditiously as possible.