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Jharkhand High Court · body

2007 DIGILAW 932 (JHR)

Tanushree Banerjee v. The State Of Jharkhand

2007-12-14

D.K.SINHA

body2007
JUDGMENT D.K. Sinha, J. 1. The petitioner has preferred this Criminal Revision against the impugned order dated 25.1.2007 whereby and whereunder her petition-under Section 239 read with Section 245 Cr.P.C. for discharge was rejected by Shri B.K. Lal, Judicial Magistrate, Bokaro in G.R. No. 1218 of 2004 and the petitioner was called upon to stand charged for the offence under Sections 467, 468, 471, 406, 420 and 120B Indian Penal Code. 2. The prosecution story in short was that the informant Rajendra Prasad had entered into business agreement with the proprietor Smt. Mani Devi of M/s Data Craft Technology, F/1.4 Second Floor, City Centre, Sector-4 of B.S. City. According to the terms of agreement, the informant invested Rs.1,20,000/- and in lieu of that, pursuant to terms she issued 12 post dated cheques for the refund of the said amount invested by him with the interest thereon. 3. It was alleged that the informant presented one of the cheques vide No. 182615 dated 25.3.2004 before the HDFC Bank on 23.4.2004 for payment of Rs. 25,000/- but it bounced with the endorsement of the State Bank of India, insufficient fund. 4. The informant then contacted the executive partner of the firm Ajeet Kumar and apparised the bouncing of the said cheque who requested him to wait for some time. 5. On 4.3.2004 the informant again entered into an agreement with another partner in the firm Smt. Meena Kumari wife of Ajeet Kumar and pursuant to the terms she issued 12 post dated cheques and one of the cheques No. 000276 of Rs. 92000/- again bounced on presentation by the informant at the U.T.I. Bank. 6. On the persistent assurance aid request the informant waited for 5 months and only on the clearance given by Ajeet Kumar on 18.9.2004 both the cheques when presented, again bounced from State Bank of India and U.T.I. Bank respectively on account of in sufficient fund and the account being closed. 7. The informant sent legal notice for the payment of Rs. 1,17,000/- but it was alleged that Ajeet Kumar threatened of dire consequence in case of taking legal recourse. 8. The informant further alleged that the petitioner Tanushree Banerjee took leading role in persuasion of the investors and succeeded in her mission by convincing that the investment of the investors would be safe in the firm. The informant alleged that pursuant to her request he invested Rs. 8. The informant further alleged that the petitioner Tanushree Banerjee took leading role in persuasion of the investors and succeeded in her mission by convincing that the investment of the investors would be safe in the firm. The informant alleged that pursuant to her request he invested Rs. 1,20,000/- initially and again invested Rs. One lakh by cheque and Rs. 50,000/- in cash respectively but his money was not returned. 9. The informant O.P. No. 2 alleged that when he asked Ajeet Kumar about the return of his such investment, the latter replied that the amount was transferred to M/s Newton M.P. Technology on the same day and he alleged that he was persuaded as also by Md. Sahid Eqbal who was working as Chief Technicians- cum-Manager in the said firm. 10. Mr. Mazumdar, learned Counsel for the petitioner submitted that the O.P. No. 2 fairly admitted by presenting written report before the police that he had entered into agreement with the Mother of Ajeet Kumar, namely, Mani Devi and his wife Meena Kumari who were the partners of M/s Data Craft Technology. Admittedly, the entire amount was deposited with Ajeet Kumar and Mani Devi and in lieu of hat post dated cheques of S.B.I., and U.T.I. Banks were issued to him by the partner Mani Devi and Meena Kumari. It was further admitter that the amount paid through cheque and cash to the petitioner in the name of the said firm were also made over to the principal accused Ajeet Kumar who admitted before the O.P. No. 2 having received the amount and transfer to the M/s Newton M.P. Technology, Banglore. 11. Mr. Mazumdar, pointed put that the only allegation against the petitioner was that she being the Manager (Administration) of M/s Data Craft Technology had illustrated before the informant about the offers made by the said firm and further narrated that the money so deposited by the informant would be safe in the firm to which tie parties entered into agreement. 12. Leaned Counsel further submitted that the money delivered to the petitioner, total to the tune of Rs. 1,50,000/- by cheque as we has in cash were immediately transferred to the co-accused Ajeet Kuma and therefore, it cannot be alleged that the petitioner wrongfully gained or misappropriated any sum of money so delivered to her or part thereof in any manner. Leaned Counsel further submitted that the money delivered to the petitioner, total to the tune of Rs. 1,50,000/- by cheque as we has in cash were immediately transferred to the co-accused Ajeet Kuma and therefore, it cannot be alleged that the petitioner wrongfully gained or misappropriated any sum of money so delivered to her or part thereof in any manner. The petitioner being the employee of the firm used to promote the firm on the information supplied by the partners as well as Ajeet Kumar and it was not the one that the informant Manager (Administration) was aware of the poor financial condition and in spite of knowing such fact she had been portraying the said firm to be a viable. The informant further failed to prove any actus on the par of the petitioner of any kind of deception intended to be caused to the informant Opposite Party No.2. It was the part and parcel of her job to promote the business of the firm by all legal activities. As a matter of fact, the informant opposite party was a responsible person, who after examining the pros and cons of the viability of the firm invested the amount on his own wisdom and it was merely a pretext and an eye wash that on persuasion of the petitioner he invested such huge amount. The informant further failed to point out as to under what manner the petitioner lady Manager who was just doing her L.L.B. was wrongfully gainer for the investment made by him in M/s Data Craft. 13. On the point of law, Mr. Mazumdar submitted that charge was proposed against the petitioner for the offence under Sections 467, 468, 471, 406, 420 read with 120B I.P.C. and Section 138 of Negotiable Instrument Act. Admittedly, no entrustment of any amount was made by the informant to the petitioner nor there was any element of allegation that she misappropriated the amount rather, it was admitted by the informant that the amount to the tune of Rs. 1,50,000/- delivered to the petitioner was immediately transferred by the co-accused Ajeet Kumar to M/s Newton M.P. Technology, Banglore. The informant O.P. No. 2 failed to show any required element for constituting an offence of forgery against the petitioner. 14. Learned Counsel relied on the decision . The Apex Court in Ajay Mitra v. State of M.P. and Ors. 1,50,000/- delivered to the petitioner was immediately transferred by the co-accused Ajeet Kumar to M/s Newton M.P. Technology, Banglore. The informant O.P. No. 2 failed to show any required element for constituting an offence of forgery against the petitioner. 14. Learned Counsel relied on the decision . The Apex Court in Ajay Mitra v. State of M.P. and Ors. held: in Hari Prasad Chamaria V. Bishun Kumar Surekha it was held that unless the complaint showed that the accused had dishonest or fraudulent Intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 IPC and It may only amount to breach of contract. In G.V. Rao v. L.H.V. Prasad it was reiterated that guilty intention is an essential ingredient of Vie offence of cheating and, therefore, to secure conviction "mens rea" on the part of the accused must be established, it has been further held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. 15. It was further observed by the Apex Court in G.V. Rao v. L.H.V. Prasad and Ors. that. A guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, mist be established. This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. 16. Learned Counsel exhorted that the father of the petitioner in good faith had also invested Rs. 40,000/- in M/s Data Craft Technology without knowledge the financial constraints of the firm as the petitioner was also unaware of the fact. The amount invested by her father since could no be returned, a Complaint Case No. C.P. No. 421 of 2005 was filed by her father and this fact has not been controverted by the informan O.P. No. 2. The amount invested by her father since could no be returned, a Complaint Case No. C.P. No. 421 of 2005 was filed by her father and this fact has not been controverted by the informan O.P. No. 2. The petitioner was herself deprived of her salary for the work done to the firm and at the later stage when cheques were issued to the firm in her favour also bounced when presented by the petitioner on 4.11.2004 since the account of the firm was found closed by the holder of M/s Data Craft Technology. The petitioner had no intention at all to cheat the informant at any point of time and the O.P. No. 2 failed to bring any material in support of such contention. 17. The petition under Section 239 r/w Section 245 preferred by the petitioner for her discharge was dismissed with the observation in the order impugned: on perusal of the record it is crystal clear that this petitioner Tanushree Banerjee was an employee of Data Craft Technology, B.S. City, Bokaro and was working as manager of the said firm, collected money from common people/public by convincing them, during that course this petitioner Tanushree Banerjee also received Rs. 1,50,000/- from the informant Rajendra Prasad on her own risk and assured to return it on seven days but the amount had not been returned neither by Ajeet Kumar nor by this petitioner. 18. Mr. Mazumdar submitted with reference to the impugned order that it was error of record beyond the allegation made by the informant-opposite party No. 2 who alleged in the written report that on persuasion of the petitioner showing the exigency and pursuant to such request he made payment of Rs. 1,00,000/- through cheque and Rs. 50,000/- in cash on 17.4.2004 to the petitioner and when the amount was not returned, the informant enquired from Ajeet Kumar who replied that the amount which was invested by him was transferred on the same day to M/s Newton M.P. Technology and he assured to return the money in presence of the witnesses. In this manner by the said observation the learned Judicial Magistrate almost decided the case against the petitioner in his impugned order dated 25.1.2007. Therefore, it cannot sustain. In this manner by the said observation the learned Judicial Magistrate almost decided the case against the petitioner in his impugned order dated 25.1.2007. Therefore, it cannot sustain. Learned court though considered the petitioner as the employee of M/s Data Craft Technology but she could not be exonerated from her criminal liability, though the entire allegation was directed against the partners Meena Kumari and Mani Devi of the firm i.e. the wife and mother of Ajeet Kumar respectively. 19. The informant O.P. No. 2 Rajendra Prasad appeared in person and opposed the contention. He argued that he retired from the job and was subjected to harassment and financial loss at the hands of the petitioner and the other partners of M/s Data Craft Technology. He pointed out that the petitioner gained wrongfully towards the money invested by him and others in prosecution of criminal conspiracy with the partners and Ajeet Kumar who were jointly and severely criminally liable. He pointed out that the appointment letter issued to the petitioner (Annexure-B/1) without date and seal indicating that she joined M/s Data Craft Technology as a paid employee on monthly salary basis without disclosing the salary and the date of her joining was nothing but an eye wash brought about with mala fide intention to defeat his interest. As a matter of fact, the petitioner was managing all the affairs and was directly involved in all monetary transaction on behalf of the firm. Therefore, she cannot deny her criminal liability for the alleged offence of cheating, criminal breach of trust etc. 20. Having regard to the facts and circumstances of the case, I find that apart from the present case the informant Opposite Party No. 2 filed a separate Complaint Case No. 392 of 2005 against the same set of the accused including the petitioner Tanushree Banerjee for same and similar jet of allegation without explaining the exigency of two criminal cases instituted simultaneously. In both the police case and in tie complaint case the Opposite Party No. 2 has admitted the petitioner as the Manager (Administration) in M/s Data Craft Technology and not a partner in the said firm. He has further admitted that the entire investment made by him was through the partners in the firm which was managed by Ajeet Kumar and in respect of the allegation that he paid Rs. He has further admitted that the entire investment made by him was through the partners in the firm which was managed by Ajeet Kumar and in respect of the allegation that he paid Rs. 1,50,000/- to the petitioner by cheque and by cash, the same was admitted to be received by Ajeet Kumar under acknowledgement of the Opposite Party No. 2 that the amount so received was immediately transferred to M/s Newton M.P. Technology, Banglore. 21. I find from the record that the money invested by the O.P. No. 2 in the firm was in no manner misappropriated or defalcated by the petitioner and that she was not the beneficiary. On the other hand, it was admitted by the Opposite Party No. 2 that the amount was handled by the partners of M/s Data Craft and Ajeet Kumar and that the petitioner in the interest and development of the firm had persuaded the interested persons for investment in good faith. I find substance in the argument that by the impugned order, the learned Magistrate has almost decided the case against the petitioner for the alleged offence in which cognizance of the offence has been taken without appreciating the fact that the petitioner was a paid employee and that her father had also invested Rs. 40,000/- in good faith which could not be refunded to him. I further find that the prosecution failed to show any actus (mens rea) on the part of the petitioner of cheating and the other relevant offences. The prosecution further failed to point out the wrongful gain by the petitioner or that she in any manner misappropriated or committed the offence of embezzlement of the fund of firm so as to attract her criminal liability. 22. In the circumstances, I find merit in this Cr. Revision which is bound to succeed accordingly the order impugned dated 25.1.2007 passed by Shri B.K. Lal, Judicial Magistrate, 1 st Class, Bokaro in G.R. No. 1218 of 2004 is set aside. This Criminal Revision is allowed and the petitioner Tanushree Banerjee is discharged from her criminal I abilities in G.R. No. 1218 of 2004. I.A. No. 1813 of 2007 preferred on behalf of the Opposite Party No. 2 for vacating the interim order stands disposed of.