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2007 DIGILAW 615 (CAL)

TAPAS KUMAR KHAN v. STATE OF WEST BENGAL

2007-08-13

ASHIM KUMAR ROY

body2007
( 1 ) AGGRIEVED by the continuance of the criminal proceeding relating to the Raiganj Police Station Case No. 7 of 2007 under Section 406/420/34 of the Indian Penal Code, invoking inherent jurisdiction of this Court, the petitioner moved the instant criminal revision for quashing of the same. ( 2 ) THE learned Senior Counsel Sardar Amzad Ali appearing in support of the instant criminal revisional application contended that the impugned criminal proceedings as well as the FIR are liable to be quashed ont he following grounds ; (a) The FIR has been lodged out of sheer mala fide. (b) The allegations are not genuine, and are wild, omnibus, vague, baseless, bereft of any sense and not supported by any materials on record. (c) As it appears from the complaint the entire grievance is against the company but the company has not been impleaded as an accused in the FIR. (d) The allegations are inherently malicious and neither the petitioner nor the company was approached for refund and repayment of the deposits. (e) The complainant has no locus standi and from the allegations made in the complaint it does not appear that he has at all any grievance, in other words it does not appear from the complaint that the complainant was in any way aggrieved against the conduct of the accused/petitioner. (f) Inspite of no offence being committed by the petitioner in his personal capacity he has been charged with an offence under Section 406/ 420 of the Indian Penal Code. (g) There was no whisper about the mode in which the alleged offence has been committed and as to how the complainant suffered loss. The total amount cheated has not been mentioned in the FIR. (h) The complainant has no right to file this complaint in a representative capacity as a substitute of a public interest litigation and thus the FIR is liable to be quashed. (i) On the allegations made in the complaint there is no ultimate chance of conviction of the petitioner. (j) The allegation at best give rise to a civil dispute and not a criminal offence. (k) No allegation of initial deception. (I) Reasons for non refund of the deposits are due to the order passed by the Hon'ble Supreme Court. (m) In support of his contention Mr. Ali relied on a decision relating to the case of Alpic Finance v. Sadasiva and Anr. (k) No allegation of initial deception. (I) Reasons for non refund of the deposits are due to the order passed by the Hon'ble Supreme Court. (m) In support of his contention Mr. Ali relied on a decision relating to the case of Alpic Finance v. Sadasiva and Anr. , reported in AIR 2001 SC 1226 as well as on a decision of our High Court in the case of M. S. Banga v. State of West Bengal and Anr. reported in (2005)1 Cal HN 92. ( 3 ) MR. Debobrata Roy, the learned Advocate appearing on behalf of the State produced the case diary and draws the attention of this Court to the evidentiary materials collected during the course of investigation. According to Mr. Roy that uptil now the materials so far collected are quite sufficient to make out a prima facie case against the petitioner. He further submitted at this initial stage when the investigation has not yet been completed thwarting of such investigation at the very threshold by quashing the FIR does not at all arise. He further pointed out to the 161 statement of the depositors where they categorically stated that the accused persons suppressing the facts that several cases including criminal cases are pending against the company Golden Forest (India) Limited and its directors on the charge of cheating the depositors at Punjab and by virtue of an order passed by the Security Exchange Board of India on January 9, 1998 the company has been directed not to mobilise any fund from the investors, the said accused persons induced the depositors to invest and reinvest by way of renewing their deposits. He further draws the attention of the Court to the letter of Retired Chief Justice, R. N. Agarwal, Chairman of the Committee gfil, which are the part of the case diary. ( 4 ) MR. Sudipto Moitra, the learned Advocate appearing on behalf of the defacto-conplainant submitted before this Court that the FIR itself contents sufficient allegations making out the case of commission of prima facie offences against the petitioners and by now during the course of investigation sufficient materials having been collected by the police as it is evident from the submissions made on behalf of the State and when the investigational process is still continuing and as such there is no valid reason to stifle a legitimate prosecutions. He further submitted if this Court is really to adjudicate on the point raised by Mr. Ali then Court has to enter into the debatable area of the case relating to the pure question of disputed facts which is not permissible. Mr. Moitra draws the attention of this Court to the various averments made in the First Information Report and more particularly to those made in paragraphs 4 and 5 thereof. ( 5 ) HEARD, the learned Advocates appearing on behalf of the parties. Perused the materials on record viz. the First Information Report as well as the materials available from the case diary. ( 6 ) THIS is a case for quashing of a criminal proceeding initiated on the basis of a First Information Report, which contents the following allegations ; "the accused Jitendra Kumar Khan, his son Tapash Kumar Khan, manjushree Khan and daughter in law Lipika Khan by opening a camp office at B. L. Market, Raiganj and with the help of three others, as the agent of golden Forest (India) Limited having its Head Quarter at Chandigarh, and from 9. 5. 1997started collecting deposits from the general public but when after the maturity, the depositors claimed for refund, no payment has been made to them. It is the further allegations that the accused persons were fully aware that the business of the company Golden Forest (India) Limited has come to a closure on and from December 24, 2000 following registration of several criminal cases at Punjab against the directors of the said company. Subsequently, the creditors also filed allegation for winding up of the company's business at the Hon'ble Punjab and Haryana High Court. At the same time similar other cases were instituted against the company at the different parts of the country and finally all those cases were brought before the Hon'ble Apex Court. When the Hon'ble Supreme Court formed a committee presided over by the Hon'ble retired Justice Agarwal, as its chairman, for taking necessary steps for refund of the deposits to the investors. The said committee on February 19, 2005 by giving a paper advertisement in Anandabazar Patrika invited the depositors and other claimants to lodge their respective claims within 90 days thereof. The said committee on February 19, 2005 by giving a paper advertisement in Anandabazar Patrika invited the depositors and other claimants to lodge their respective claims within 90 days thereof. Inspite of being fully aware of the aforesaid pending litigations against the company and its directors and completely suppressing everything about the same, the accused persons collected huge money by deceiving the common investors and depositors and refused repayment and refund even after maturity. It has further been learnt that the said accused persons have not deposited the money so collected to the company and have misappropriated huge amount of money and cheated those investors. Sometime in August, 2005 the said accused persons has shut down their office at Raiganj and shifted the same to elsewhere and started business by forming a different concern. " ( 7 ) IN view of the aforesaid allegations as contained in the FIR and the materials collected during the investigation by the police in support of those allegations it cannot be said that no prima facie case has been made out against the petitioner. At this stage when the question is one of quashing of the FIR, the Court cannot enquire as to the reliability, genuineness, sufficiency, acceptability or otherwise of those allegations and test the same. Since the plea raised by Mr. Ali are pure question of facts the sustainability of the same cannot be decided at the present moment. It is not the law that merely because the allegations constitutes a civil dispute that would denude the case of its criminal profile even though those allegations by itself clearly constitutes commission of criminal offences. At this stage the male fide of the informant would be of secondary importance and is of no consequences and the same cannot be a ground for quashing. It is the materials collected during investigation i. e. the only thing would lead the Court to reach its conclusion. ( 8 ) IN this connection it would be sufficient to rely on the decisions of the Apex Court in the case of State of Karnataka v. M. Devendrappa, reported in 2002 SCC (Cr) 539 : 2002 C Cr LR (SC) 324. Reliance may also be placed in the case of State of M. P. v. Awadh Kishore Gupta, reported in 2004 SCC (Cr) 353 : 2004 C Cr LR (SC) 127. Reliance may also be placed in the case of State of M. P. v. Awadh Kishore Gupta, reported in 2004 SCC (Cr) 353 : 2004 C Cr LR (SC) 127. ( 9 ) SO far as one other contention of Mr. AN is concerned that the defacto-complainant has no locus standi, it is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting and creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence, save and except wher the statutes provides for eligibility of the complainant by necessary implications. The contention of Mr. Ali that by the reason of pendency of a case before the Apex Court no payment could have been made, the same cannot be a ground for quashing on the face of the allegations in the FIR as well as in the 161 statement of the depositors that the accused persons obtained the deposits from the investors by concealing the facts of pendency of cases against the company in different Courts of the country as well as in the Apex Court. ( 10 ) FOR the reasons stated hereinabove, I am of the opinion that this is not a fit case for quashing and accordingly this application stands dismissed. ( 11 ) NEEDLESS to mention that I have not gone into the merits of this case and same is left open for decision at the appropriate stage of the trial.