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2007 DIGILAW 754 (CAL)

Harshad A Shah v. STATE OF WEST BENGAL

2007-09-26

P.S.DATTA

body2007
Judgment :- (1.) IN CRR 3120 of 2005 the two petitioners prayed for quashing of the proceeding being case No. C/115/05 under section 420/120b/34 or the IPC now pending before the learned Metropolitan Magistrate, llth Court, Calcutta on the ground as may be found in the subsequent paragraphs and together with this challenge has been made to the order dated 1. 3. 2005 of the learned Magistrate directing issuance of process against the petitioners and order dated 22. 6. 2005 directing issuance or warrant of arrest against the petitioners and also the order dated 19. 8. 2005 directing is suance of proclamation against them. (2.) THE complaint was lodged by the opposite party No. 2 against two petitioners and another who are partners of Sri Mahabir Minerals carrying on business of supply and export of mineral processors. In the month of October 2004 the de facto complainant who is an exporter of Bentonite, a mineral in substance, badly needed to purchase 5,000 tones of foundry, grade, bentonite, lumps exclusively for export/supply to its valued overseas clients. The accused persons persuaded the complainant to honour them with the order and guaranteed to deliver the materials within stipulated period and strictly adhering to quality. The glossy and colourful representations by the accused persons impressed the complainant deeply and accordingly the accused persons sent by fax on 12. 10. 04 a proforma invoice bearing No. 2834 dated 11. 10. 2004 and the complainant placed in turn the formal purchase order No. 2730 dated 15. 10. 2004. The total amount agreed to be paid by the complainants company to the accused persons was Rs. 20,60,000 and the Complainant remitted to the accused persons a sum of Rs. 10,00,000 by different cheques on 16. 10. 2004, 18. 10. 2004 and 4. 11. 2004. The 15th November 2004 was the date fixed for delivery of the materials and it was specifically mentioned in the purchase order that the schedule had to be strictly complied with. The accused persons were under the strictest obligation to submit samples on 26. 10. 2004 and 10. 11. 2004 but the accused persons on receipt of Rs. 10,00,000 quietly sat over the matter and did not submit any sample within the stipulated time or at all in spite of repeated request through its local authorised officer one Gautam Kar nor delivered the ordered materials within the stipulated time. 10. 2004 and 10. 11. 2004 but the accused persons on receipt of Rs. 10,00,000 quietly sat over the matter and did not submit any sample within the stipulated time or at all in spite of repeated request through its local authorised officer one Gautam Kar nor delivered the ordered materials within the stipulated time. Such failure on the part of the accused persons caused the complainants company to fail exporting the materials resulting in its overseas clients canceling the export order and slapping upon the complainant a damage claim of USD 20,000 for delay in shipment. The accused persons in their letters dated 22. 11. 2004 and 29. 11. 2004 represented utterly incorrect, designed, planned, concocted, cooked and manufactured stories suiting their dishonest purposes denying their any realities. The complainant denied all such contentions and was constrained to cancel the purchase order by their letter dated 2. 12. 2004 and called for return of Rs. 10,00,000 with interest @ 22% p. a. plus a damage of Rs. 9,00,000. On 1. 12. 2004 the accused persons sent a letter questioning as to why the complainants company was not taking delivery of the ordered materials lying ready since long back. The content of such letter is false. The complainant himself with Gautam Kar called on the office of the accused persons on 15. 12. 2004 and requested to settle the matter but unfortunately the complainant was treated very objectionably. On 27. 12. 2004 the complainant received a fax message from the accused persons whereby the accused persons dishonestly and designedly contended that in the said uneld meeting everything was settled. The content of the fax is false. It is, therefore, clear that the accused persons entered into deep criminal conspiracy to cheat the complainants company by making false and fake representations and induced the complainants company to part with a cash of Rs. 10,00,000 which they misappropriated and cheated the complainant causing thereby wrongful gain to themselves and wrongful loss to the complainants company. The complainant had trust and confidence reposed in the accused company and exploiting such trust and faith the accused persons committed the offence and cheating and criminal breach of trust. 10,00,000 which they misappropriated and cheated the complainant causing thereby wrongful gain to themselves and wrongful loss to the complainants company. The complainant had trust and confidence reposed in the accused company and exploiting such trust and faith the accused persons committed the offence and cheating and criminal breach of trust. (3.) THE grounds of revision are that allegations in the petition of complaint are false, that they did not constitute commission of any cognizable offence, that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners, that the ingredients of the offence of criminal conspiracy and of cheating have not been averred in the complaint, that there was no allegation of initial mens rea of deception, without which no offence under Section 420 of the IPC can lie, that there are claims and counterclaims as against the parties, that the accused per sons by their letter dated 1. 12. 2004 inti mated the complainants company that ordered materials were ready for delivery and it was not understood why the delivery was not taken by the complainants company, that the learned Magistrate ought to have allowed an opportunity to the petitioners to make application under Section 205 cr. P. C. particularly when the accused persons are not going to challenge their identity and that in the circumstances, the proceedings be quashed. (4.) IT is well settled that having regard to the guidelines laid down by the Honble court in the decision in State ofharyana v. Bhajanlal and R. B. Kapoor v. State of punjab quashing of a proceeding of a criminal case happens in rarest of rare case and it can only happen when the petition of complaint or the FIR does not disclose or reveal commission of any cognizable offence or when there is no availability of evidence of legal character or when there is legal bar to the entertain ability of a petition of complaint or where the petition of complaint or the FIR is inherently defective or manifestly absurd or where ex facie the complaint exhibits a sheer mala fide. The matters of fact which are assessed by one party and denied by the other are subject to test only at the time of trial and this revisional court being not a fact finding court cannot proceed to examine whether the averments in the petition of complaint are true or false or whether given at the face value the chance of success is bright or bleak. (5.) WHAT appears from the petition of complaint is that there was placement of an order dated 15. 10. 2004 by the complainant pursuant to despatch of an invoice dated 12. 10. 2004 towards delivery of some mineral materials worth Rs. 20,60,000 out of which a sum of Rs. 10,00,000 was paid in advance between 16. 10. 2004 and 4. 11. 2004 by three cheques drawn on HDFC Bank Ltd. Allegedly 15th November, 2004 was the date of delivery of the materials with strict adherence to maintenance of quality of the materials. Allegedly samples were to be sent on 26. 10. 2004 and 10. 11. 2004 but no samples were allegedly delivered and there was total failure on the part of the accused persons to deliver the ordered materials which allegedly caused damage to the complainant in the sum of Rs. 9,00,000 and the complainants companys client in the overseas slapped a damage claim of USD 20,000. (6.) IN the petition of complaint there is mention of some letters of the accused persons which, according to the complainant were false and concocted as at no point of time there was any resolution of the dispute amicably between the parties. In the latter part of the petition of complaint there is averment that because of commercial dealings between the parties the complainant had reposed faith and confidence in the accused company and the accused company taking advantage of that faith and trust exploited the same and dishonestly and deliberately failed to comply with the terms of the order by not supplying the samples and the ordered materials on time as a result of which the complainant allegedly sustained damage. In the petition of complaint it has been further alleged that the accused persons entered into a deep rooted criminal conspiracy to cheat the complainants company by making false and fake representations and assurances which they were sure not to honour and which induced the complainants company to part with a sum of Rs. In the petition of complaint it has been further alleged that the accused persons entered into a deep rooted criminal conspiracy to cheat the complainants company by making false and fake representations and assurances which they were sure not to honour and which induced the complainants company to part with a sum of Rs. 10,00,000 and have misappropriated the amount and cheated the complainant causing wrongful gain to themselves and wrongful loss to the complainant. (7.) ACCORDING to the learned Advocate for the petitioners the essential ingredients of the offence of cheating is that it must be alleged and proved that at the very inception of the transaction there was dishonest intention in the mind of the accused to cheat the complainant which in the instant case, so far as the petition of complaint is concerned, has not been averred and that be ing so, the petition of complaint cannot be said to have disclosed a commission of cognizable offence with respect of alleged charge under section IPC and in this connection the decision in 2000 Crlj 2983 has been cited. The learned Advocate for the petitioner Mr. Sudipta Moitra further referred to a decision in JT 2004 (2) SC 539 where in para 15 therein it was held by their lordships of the Supreme Court that no charge of cheating can lie when there is no fraudulent representation so as to induce a person to part with a property and this essential element of the offence of cheating is prerequisite of issuing a process. Reference also has been made in this connection to the decision in 1993 SCC (Cri.) 149 and 2004 (1) CHN 592 . Mr. Moitra argues that having gone through the petition of complaint it would be revealed that the dispute between the parties was of civil in nature and no criminal court should take cognizance of offence upon such petition of complaint. (8.) MR. Amit Bhattacharjee learned Advocate appearing for the opposite party submitted that it is misnomer to suggest or argue that elements of cheating and criminal breach of trust have not been averred in the petition of complaint. (8.) MR. Amit Bhattacharjee learned Advocate appearing for the opposite party submitted that it is misnomer to suggest or argue that elements of cheating and criminal breach of trust have not been averred in the petition of complaint. It is argued that in clear terms it has been alleged in the petition of complaint that the accused persons cheated the complainant with full knowl edge that they would not honour the order to deliver the materials and they induced the petitioners company to part with and deposit with them a total sum of Rs. 10,00,000 and they accordingly misappropriated the money and cheated the com plainant. It is submitted that in the latter part of the petition of complainant it has been clearly alleged that accused parsons entered into a deep-rooted criminal conspiracy to cheat the complainants company and by making false and fake representations which they knew that they would not comply with the accused persons induced the complainants company to deliver Rs. 10,00,000 and the trust and faith which the complainants company had reposed in the accused persons was exploited by the accused persons so as to have wrongful gain to themselves and wrongful loss to the complainants. Mr. Bhattacharjee argues that reading between the lines of the petition of complaint it cannot be said that the essentials of the charge have not been laid foundation of. (9.) I have gone through minutely the petition or complaint and it appears to me that the primary ingredients of the two officers have been alleged no matter whether they would succeed at the trial or not. It was argued by Mr. Moitra that sample were sent to the complainants company which has been denied by Mr. Bhattacharjee. The question whether samples were sent or not is a question of fact and this revisional court being not a fact finding court can hardly go into examination of the point. According to mr. Bhattacharjee the accused persons/pe titioners laid inevitable tricks to cheat the complainant. Mr. Bhattacharjee. The question whether samples were sent or not is a question of fact and this revisional court being not a fact finding court can hardly go into examination of the point. According to mr. Bhattacharjee the accused persons/pe titioners laid inevitable tricks to cheat the complainant. Mr. Moitra produced a good number of documents which according to him would be sufficient to rebut the charges of criminal misappropriation and cheating, law is well settled that while examining a revisional application praying for quashing of a proceeding what has to be looked into is the FIR or the petition of complaint or the charge sheet and there is hardly any scope to examine critically the papers constituting the defence case because the defence will be called upon to enter into defence after the prosecution case is built through evidence-orally or documentary and since the documents produced by the accused persons are subject to examination through trial with regard to its veracity and authenticity and truthfulness of the content this revisional court is precluded from entering into accepting those documents at face value because if it is done so, it would be an act of prejudging the prosecution case before trial. So far as the petition or complaint is concerned it appears to me that a prima facie case has been made out and this being so, I am unable to hold that the petition of complaint should be nipped at the bud. In Rajesh Bajaj v. State ofhct of Delhi and Ors. 1 it has been held by Their Lordships of the Supreme Court that it is not necessary that the complainant should reproduce in the body of the complaint all the ingredients of the offence he is alleging, nor it is necessary that the complainant should ever in so many words that intention of the accused was dishonest or fraudulent. Their lordships held in the judgment that when. the factual foundation of the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during this stage of investigation merely on the premise that one or two ingredients have not been stated in details. Their lordships held in the judgment that when. the factual foundation of the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during this stage of investigation merely on the premise that one or two ingredients have not been stated in details. At para 9 of the judgment it has been further held that for quashing an FIR which is a special remedy only in extremely a rate case the information in the complaint must be the basic facts which are absolutely necessary for making out the offence. At para 10 of the judgment of their Lordships held it may be that the facts narrated in the complaint would reveal a commercial transaction or money transaction but that is hardly a reason for holding that offence of cheating would elude from such a transaction because, according to their Lordships, many a cheating were committed in the course of commercial and also of money transaction. In the decision in State of Orissa v. 1. 1999 SCC (Cri.) 401. Debendra Nath Padhi it has been held that consideration of defence materials can only be had at the stage when the Court proceedings to consider charge against accused persons. (10.) WITH regard to the issuance of process it can only be said that the orders issuing processes followed the act of taking cognizance of offence and it cannot be said that the learned Magistrate was not legally justified in issuing the process. If the accused persons desired to make an application under Section 205 of the Cr. P. C. they if so advised, may file an application before the learned Magistrate. Therefore, the learned magistrate after taking cognizance of offence and after recording preummoning evidence under Section 200 of the Crpc was perfectly justified to issue process by the order dated 1. 3. 2005. With regard to issuance of warrant of arrest by the order dated 22. 6. 2005 it appears that the learned Magistrate was moved by the accused persons through a petition dated 29. 4. 2005 praying for time for the appearance which the learned Magistrate fiked on 22. 6. 2005 but on that day no appearance was made and no petition was filed before the learned magistrate under Section 205 of the Cr. P. C. and in the circumstances learned magistrates order issuing warrant of arrest cannot be said to be absolutely unlawful. 4. 2005 praying for time for the appearance which the learned Magistrate fiked on 22. 6. 2005 but on that day no appearance was made and no petition was filed before the learned magistrate under Section 205 of the Cr. P. C. and in the circumstances learned magistrates order issuing warrant of arrest cannot be said to be absolutely unlawful. It cannot be said that any petition under Section 205 of the Cr. P. C. was filed and moved before the learned Magistrate and that the same was rejected. The accused persons may in the circumstances immediately appear before the learned Magistrate and pray for bail. (11.) IN CRR No. 3121 of 2005 the other accused persons who are also co accused with the petitioners of CRR No. 3020 of 2005 made a separate application for quashing of the proceedings on the selfsame grounds and by this order the said CRR No. 3121 of 2005 also stands disposed of in the same terms as in CRR No. 3120 of 2005. (12.) SITUATED thus, I am to hold that revisional applications fail and are dismissed. (13.) URGENT certified copies, if applied for shall be provided. Petition dismissed.