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2007 DIGILAW 453 (CAL)

SOURAV KEDIA v. STATE OF WEST BENGAL

2007-06-22

SADHAN KUMAR GUPTA

body2007
( 1 ) THIS revisional application has been preferred under Section 482 of the cr. P. C. praying for quashing of G. R. case No. 1035 of 2002, as pending before the learned Additional Chief Judicial Magistrate, Barrackpore. ( 2 ) CASE of the petitioners is that G. R. case No. 1035 of 2002 under sections 406/420/34/120b of the Indian Penal Code was started on the basis of a written complaint filed by the opposite party No. 2 alleging therein that subrata Nandi, proprietor of M/s. R. K. Traders approached the petitioners for appointing him as super-stockist under the petitioners. Such request was accepted and said Subrata Nandi was appointed as the consignee agent-cum-super-stockist by the petitioners for marketing their products within the specified area, as mentioned in the letter dated 23. 12. 1997. On 13. 7. 1998 a new agreement was entered into in between the parties incorporating there in certain terms and conditions appointing said R. K. Traders for marketing entire products of the petitioners within the territory of North 24 Parganas and South Nadia with effect from 13. 7. 1998. Pursuant to the said agreement the complainant claimed that an amount of Rs. 60,000/- was paid to the petitioners, who supplied 2. 5 M. T. of goods worth Rs. 50 lakhs to one Golam Ali Mandal of Bangaon at the instruction of the complainant. The complainant has claimed that the goods were substandard. As a result of this, and due to the misappropriation of money by the petitioners the complainant incurred loss. It has further been claimed in the petition of complaint that as the complainant suffered huge loss due to the activities of the accused persons, he visited the dealers and came to know that the accused persons had no valid license to produce zinc sulphate 21 per cent and high zinc surya shakti etc. The complainant demanded supply of the necessary documents from the accused persons. But they failed to produce the same. According to the complainant, the accused persons used to run the said business in the name of two firms namely, East Coast Industry and East india Limited in a clandestine manner. They have no document for manufacturing the articles for which there was an agreement in between the parties. But they failed to produce the same. According to the complainant, the accused persons used to run the said business in the name of two firms namely, East Coast Industry and East india Limited in a clandestine manner. They have no document for manufacturing the articles for which there was an agreement in between the parties. By making false representation the accused persons induced the complainant to deliver money in their favour and ultimately the accused persons dishonestly misappropriated the money in gross violation of the agreement. From the very inception, the accused persons had the intention to cause wrongful loss to the complainant. According to the complainant, the accused persons cheated him and also other cultivators at large by not supplying proper materials, as agreed in between the parties. The complainant has claimed that he is running the business in the name of his son Subrata Nandi who informed the matter to the local P. S. in writing. On the basis of such information, a police case was started. The matter was investigated and after completion of investigation, charge-sheet was submitted against the accused persons. ( 3 ) ACCORDING to the learned Advocate for the petitioners there was a business transaction in between the parties and dispute arose amongst them for the alleged violation of the terms and conditions, as mentioned in the agreement. As such, Mr. Bagchi, learned Advocate for the petitioners argued that since it is purely a civil dispute and since there was no intention of cheating from the very beginning, the criminal case is not sustainable in the eye of law and as such, it should be quashed. ( 4 ) ON the other hand, Mr. Satpati, learned Advocate for the defacto-complainant argued that it will appear from the petition of complaint that the accused persons from very beginning had the intention to cheat the complainant and his son and thereby they caused wrongful loss to the complainant and its company. According to him, since a prima facie case has been made out after completion of the investigation, so charge sheet has been submitted against the accused persons and under such circumstances, it is not at all proper to quash the proceeding on the ground that the dispute in between the parties is civil in nature. According to him, since a prima facie case has been made out after completion of the investigation, so charge sheet has been submitted against the accused persons and under such circumstances, it is not at all proper to quash the proceeding on the ground that the dispute in between the parties is civil in nature. He has contended that the power to quash a proceeding, should be exercised very sparingly and as far as this case is concerned, it is not a fit case where this power should be invoked by the High Court, as claimed by the petitioners. ( 5 ) I have considered the submissions of the learned Advocates for both the sides. It appears that there was an agreement in between the parties over supply of some products. The complainant submits that pursuant to that agreement he parted with huge amount of money in favour of the accused persons who on the other hand delivered substandard goods causing wrongful loss not only to the complainant but also to the other buyers. It is also the case of the complainant that when the agreement was entered into in between the parties, at that time the accused persons disclosed that they had all necessary documents for manufacturing of the goods in question. But subsequently, the complainant came to know that the accused persons had no license or other valid document for production of those articles. As such, complainant has claimed that it must be presumed that the accused persons from very beginning had the intention to cheat the complainant. ( 6 ) LEARNED Advocate for the petitioners submits that there cannot be any doubt that the transaction as entered in between the parties are purely a business transaction and civil in nature. In this respect he has relied upon the decision, as passed by the learned Single Judge of this Court in CRR No. 796 of 1997 (Mani Kanta Pal v. State and Anr.); 2005 SCC (Cr) 783 : (2005)1 C Cr lr (SC) 361, (Suresh v. Mahadevappa Shivappa Danannava and Anr.); (2005) 10 scc 336 (Uma Shankar Gupatika v. State of Bihar and Anr.); (2006)2 SCC (Cr)430 (Murarilal Gupta v. Gopi Singh); (2005)7 SCC 69 : (2005)2 C Cr LR (SC)455, (Vijaya Rao v. State of Rajasthan and Anr.) ; (2002)1 SCC 241 (SW palanitkar and Ors. v. State of Bihar and Anr.); JT (1998)5 SC 452 : 1998 C Cr LR (SC) 402 (Ashok Chaturvedi v. Shitul H. Chanchani and Anr. ). By citing those decisions, learned Advocate for the petitioners argued that since the alleged transaction was purely a business transaction, so the dispute should be held purely civil in nature and as such, no criminal action is maintainable. According to him from very beginning there was no intention of cheating and if subsequently any dispute arose in between the parties that could not be termed as cheating as provided under Section 415 of the Cr. P. C. ( 7 ) AS against this, learned Advocate for the opposite party cited decisions reported in 2005 SCC (Cr) 1185 (Devender Kumar Singh v. Baldev krishan Singh) ; 2000 C Cr LR (SC) 488 [m/s. Medchi Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. ]; 1995 C Cr LR (Cal) 210 (M/s. Naratajan v. Rama singh Shaw ). By citing those decisions and by pointing out to the relevant documents, the learned Advocate for the opposite party/defacto-complainant submits that the criminal proceeding cannot be quashed solely on the ground that it was merely a business transaction and the dispute should be considered as civil in nature. According to him, a dispute may at the same time give rise to a civil and criminal litigation. Simply because the dispute appears to be civil in nature that cannot be a ground for quashing of a criminal proceeding. If prima facie ingredients of cheating are available, then there is no bar for proceeding with the criminal trial. Under such circumstances, the learned Advocate for the opposite party/defacto-complainant prays for dismissal of the application. ( 8 ) I have taken into consideration the decisions, as cited by both the sides and also perused the case diary and the materials available therein. Apparently it appears that there was an agreement between the parties and the agreement shows that the accused persons agreed to supply the goods to the complainant and pursuant to that agreement some amount was paid in advance. But it appears that subsequently it was detected that the accused persons supplied the goods which were substandard in nature and thereby caused wrongful loss to the complainant and also to his customers. But it appears that subsequently it was detected that the accused persons supplied the goods which were substandard in nature and thereby caused wrongful loss to the complainant and also to his customers. It is the case of the prosecution that subsequently on enquiry it could be detected that the accused persons had no valid license to manufacture the goods which were agreed to be supplied to the complainant-company. This claim of the complainant finds prima-facie support after investigation as charge-sheet has been submitted against the accused persons. So it cannot be said that the allegations, as made in the petition of complainant are improbable and absurd in nature. It is the case of the complainant that the accused persons had from the very beginning the intention to cheat and this claim of the complainant finds prima facie support as the I. O. after investigation submitted charge-sheet against the accused persons. Whether the claim of the accused persons is correct or not that cannot be decided at this stage by this Court in exercise of its power under Section 482 of the Cr. P. C. It is the settled position that when prima faice case has been made out after thorough investigation and charge-sheet is submitted then the learned Magistrate should be allowed to consider as to whether charge should be framed or not and before allowing such opportunity, it is not desirable that the High Court in exercise of its power under Section 482 of the Cr. P. C. will consider the case in order to quash the entire criminal proceeding, as prayed for by the accused persons. Any discussion in this respect regarding the sustainability of the claim of the accused persons by this Court will certainly put the learned Magistrate in an embarrassing situation at the time of consideration of charge. Since it appears from the petition of complaint that there was an allegation to the effect that the accused persons had from the very inception the intention to cheat the complainant and since it has been corroborated by way of submission of charge-sheet, I am of opinion that it is not a fit case wnere the prayer for quashing, as made by the accused persons, should be allowed. To my mind, it will be fair and proper if the learned Magistrate is allowed to consider all these things at the time of consideration of charge and thereafter to pass an appropriate order on consideration of the entire materials. ( 9 ) THEREFORE, from my above discussion, I am of opinion, that it is not a fit case to allow the prayer for quashing, as made by the accused persons and consequently said prayer should be rejected. ( 10 ) IN the result, the revisional application is dismissed on contest. The prayer for quashing stands rejected. Learned Magistrate is directed to consider all the points which have been taken in this revisional application by the accused persons at the time of consideration of charge and if those points are taken, then the learned Magistrate is directed to consider the same and after hearing both the parties to pass a reasoned order independently without being influenced in any way by the observation, as made in this judgment. It is made very clear that whatever observations have been made by this Court are for the purpose of disposing of this revisional application and those are not binding on the learned Magistrate for the purpose of consideration of charge. ( 11 ) SEND a copy of this judgment to the Court below at once for information and taking necessary action.