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2007 DIGILAW 663 (CAL)

SUJOY PAUL v. STATE OF WEST BENGAL

2007-08-30

SANKAR PRASAD MITRA

body2007
( 1 ) IN this application the petitioners have sought for quashing of a proceeding being B. G. R. No. 82 of 2007 arising out of Jadavpur P. S. Case no. 8 of 2007 dated 06. 01. 2007 under Section 406/420 of I. P. C. pending before Additional Chief Judicial Magistrate, Alipore, District 24 Parganas (South ). A case was instituted at the instance of Prasanta Kumar Sarkar, o. P. No. 2 by filling a complaint before C. J. M. , Alipore against the petitioners and Ors. With a prayer to refer the case to concerned P. S. under Section 156 (3) of Cr. P. C. and the said complaint was forwarded to Jadavpore P. S. which registered a case being Jadavpore P. S. Case No. 8 of 2007 dated 06. 01. 2007 and investigation was taken up by I. O. and after completion of investigation the I. O. submitted charge-sheet against the petitioner and others under Section 406/420 of I. P. C. with additional opinion that the case is of civil nature. ( 2 ) IT is submitted by Mr. Ganguly, learned Advocate appearing for the petitioners that by virtue of a Deed of Partnership dated 5th May, 2006 the petitioners, opposite party No. 2, Prasanta Sarkar and one Saktibrata bose became the partner of the firm styled as M/s. Shiva International having its office at 1b/2, Dr. S. P. Mukherjee Street, P. O. ; Konnagar, District: hooghly, W. B. and in that business each of the partners invested initial capital to the tune of Rs. 20,000/- and they agreed to share the profit and loss of the partnership firm to the extent of 20 per cent each. The partnership agreement contained clauses with regard to accounts, dissolution and transmission, retirement and limitation of powers, introduction of new partners and referring the matter to the arbitration for settlement of dispute amongst partners. Mr. Ganguly in this connection draws my attention to the copies of partnership deed itself and submits that within few months after starting of the business O. P. No. 2 sent a letter dated 20. 11. 2006 to the petitioners through his Advocate demanding refund of Rs. 58,000/- which he paid to the partners of the firm through his son Debjit Sarkar with rider that in default of payment both criminal and civil suit would be started against them. 11. 2006 to the petitioners through his Advocate demanding refund of Rs. 58,000/- which he paid to the partners of the firm through his son Debjit Sarkar with rider that in default of payment both criminal and civil suit would be started against them. As against the said letter the petitioners through their Advocate gave reply to the advocate of O. P. No. 2 by a letter dated 29. 11. 2006 requesting him to withdraw the notice tendering unqualified apology within fifteen days from the date of receipt of reply, otherwise they would initiate legal proceeding against him. It is submitted by Mr. Ganguly that without waiting for the reply to be given by the petitioners, the opposite party No. 2 lodged a complaint before the Magistrate on 20. 11. 2006 showing continuous occurrence of incident since April, 2006 and a case was registered at jadavpore P. S. in which charge sheet was submitted by the I. O. under section 420/406 of I. P. C. against the petitioners and others with the observation that the case is of civil nature. Mr. Ganguly drawing my attention to the complaint submits that Debjit Sarkar, son of the complainant never handed over any cheque issued at all by O. P. No. 2 in favour of M/s. Shiva international. According to him cheques were issued by Debojit Sarkar, not by O. P. No. 2 for which the firm cannot be held liable not to speak of the partners thereof. It is submitted by Mr. Ganguly that only the investigation of the case could reveal that Debjit Sarkar made a statement under Section 161, Cr. P. C. and there is nothing to show that the petitioners practicing deception either upon O. P. No. 2 or upon Debjit Sarkar took money and ultimately misappropriated the same in breach of trust. He further submits that no accounting has been made in connection with the firm and there is no indication in the complaint that mens rea was there from the very inception to commit any offence as alleged by the prosecution. According to Mr. Ganguly the dispute between the parties is of civil nature, therefore, continuation of the proceeding against the petitioners and others under section 420/406 of I. P. C. will be an abuse of process of the Court and it should be quashed. ( 3 ) MR. Aloke Kumar Mitra, with Mr. According to Mr. Ganguly the dispute between the parties is of civil nature, therefore, continuation of the proceeding against the petitioners and others under section 420/406 of I. P. C. will be an abuse of process of the Court and it should be quashed. ( 3 ) MR. Aloke Kumar Mitra, with Mr. Kallol Kumar Basu, learned advocates appearing for the opposite party No. 2 submits that since charge sheet has been submitted in this case, the points raised by the petitioners cannot be decided unless evidence is gone into. Mr. Mitra referring to a decision of the Apex Court submits that Court should not invoke inherent power under Section 482 of Cr. P. C. to quash the proceeding at least at this stage. According to him there is sufficient materials on record against the petitioners and therefore, the present application should be dismissed by this Court. ( 4 ) MR. Swapan Mullick, learned Advocate appearing for the State, opposite party No. 1 referring to C. D. submits that save and except incoherent statement of Debjit Sarkar recorded under Section 161 of Cr. P. C. there is nothing to so that these petitioners by practicing fraud upon O. P. No. 2 took money from him and thereafter misappropriated the same in breach of trust. According to Mr. Mallick the cheques were issued by Debjit sarkar and not by O. P. No. 2 and that too not in the name of the firm and therefore the I. O. has opined in the charge sheet that the case is of civil nature. Mr. Mallick, further submits that materials constituting offences as alleged are found absent in this case and therefore he has no objection if the proceeding pending against the petitioner and others is quashed by this Court invoking power under Section 482 of Cr. P. C. ( 5 ) I have heard the submissions at the Bar. I have perused the documents filed in connection with the case, and it appears that by virtue of a partnership agreement the petitioners, O. P. No. 2 and Shaktibrata Bose became partners of an unregistered firm under name and style of shiva International and there they invested initial capital to the tune of rs. 20,000/- each having share of profit and loss of the business to the extent of 20% each. 20,000/- each having share of profit and loss of the business to the extent of 20% each. It is true, that there was no settlement of account and no cheques were issued by O. P. No. 2 in favour of the firm as alleged in the complaint through Debjit Sarkar and it is found from the C. D. that cheques were issued by Debjit Sarkar, son of the complainant / O. P. No. 2 not in the name of the firm. The complaint against the petitioner was filed on 20. 11. 2006 and prior to that the complainant wrote a letter dated 20. 11. 2006 requesting the petitioners to refund a sum of Rs. 58,000/- which was replied by the petitioners by their letter dated 29. 11. 2006. It is a question of settlement of accounts which did not take place prior to filing of the complaint amongst the partners and without waiting for the reply the complainant/ o. P. No. 2 instituted the case against the petitioners. Neither in complaint nor in statement of witness recorded by I. O. reveals that the petitioners deceived the complainant/o. P. No. 2 and thereafter misappropriated the partnership fund in breach of trust. ( 6 ) CONSIDERING the C. D. , and documents annexed with the application, it appears to me that there is a civil dispute between the parties, which should have been referred to arbitration. The complainant/o. P. No. 2 instead of bringing a civil suit against the petitioner and other resorted to easiest procedure by filing a criminal case against the petitioner, perhaps, this fact was considered by the I. O. at the time of submitting charge sheet and thus, he opined that the case is of civil nature. ( 7 ) THUS considering the facts and circumstances of the case and absence of ingredients which constitute offences under Section 406/420 of i. P. C. , I find that the continuation of the criminal case against the petitioners under Section 406/420 of I. P. C. will be sheer abuse of process of the Court. Therefore, Lfind that it is a fit case to quash the proceeding invoking power under Section 482 of Cr. P. C. Thus, I find merit in the application and it is accordingly allowed. Therefore, Lfind that it is a fit case to quash the proceeding invoking power under Section 482 of Cr. P. C. Thus, I find merit in the application and it is accordingly allowed. The proceeding with BGR 82/07 arising out of jadavpore P. S. Case No. 8/07 under Section 406/420 of I. P. C. pending before the Court of the learned Additional Chief Judicial Magistrate, Alipore, south 24 Parganas is hereby quashed. C. D. be returned to the prosecutor. .