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2008 DIGILAW 353 (CAL)

Shyamarani Garg v. State of West Bengal

2008-03-31

SAILENDRA PRASAD TALUKDAR

body2008
JUDGMENT This relates to an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure. 2. Petitioners, by filing this application, sought for quashing of the proceedings of G.R. Case No. 1131 of 2004 now pending before the learned Court of S.D.J.M., Howrah. It arises out of Malipanchghora Police Station Case No. 55 of 2004 dated 29.4.2004 under Sections 406/420/467/468/469/120B/34 of the Indian Penal Code. Grievances of the petitioners may briefly be stated as follows:- 3. The business of Premier Engineering Works situated at 194/1/7, G.T. Road (North), Shalkia, Howrah, has two units. The petitioner No. 1 and the husband of opposite party No. 2, since deceased and others were its partners. The petitioner No. 1's son, namely, Rakesh Garg used to look after the business in absence of opposite party No. 2 and her late husband. They were voluntarily entrusted with the care of the said business. The husband of opposite party No. 2 since retired from partnership agreement leaving others to carryon with the same as its remaining partners. Opposite party No. 2, however, filed an application before the learned Court of Chief Judicial Magistrate, Howrah with prayer for direction upon the concerned police authority to investigate into the matter, treating the said complaint as FIR under Section 156(3) of Cr.P.C. In the said complaint, it was alleged that her husband was a partner of 25% shares in the aforesaid business. He had other properties and business at Howrah, Gorakhpur (U.P) at Barnala and others-with the petitioners and others as partners. He had a residential house within the factory premises at Howrah. Till February, 1995, such complainant and her husband were in the said premises at Howrah along with the petitioners and other members of the family. When the complainant and her husband had been to Barnala, Punjab to look after their hospital named as 'Punjab Relief Society Hospital', they put a padlock on the door of the living room and entrusted the key of the room to the petitioner No. 1. They requested the petitioners to take care of the room. They kept in a cupboard a lot of shares and 'debentures of various blue chip companies viz. State Bank of India, Rolta etc. worth about Rs. They requested the petitioners to take care of the room. They kept in a cupboard a lot of shares and 'debentures of various blue chip companies viz. State Bank of India, Rolta etc. worth about Rs. 3,40,000/-, Savings Bank Account Pass Book of S.B.I., Liluah Branch and unused cheques from 155692 to 155700 as well as valuable documents of different banks business accounts, cash certificates etc. The complainant on good faith asked the petitioners to carryon with the business of both the units. 4. On 16.10.2002, after return, the complainant found that their living room had been occupied by the petitioners. On further check, it could be gathered that valuable share certificates, pass book and cheque book in the name of the complainant as well as other documents, which were left behind, were not available. On further enquiry, it could be gathered that the two cheques of her accounts, which were kept by the complainant had already been used. One of those cheques being No. 155692 for an amount of Rs 72,000/- had been cleared on 21.6.2000. The complainant never issued and signed the said two cheques for withdrawal of money from the bank nor the same were used for any payment to any other party. The complainant was surprised to discover that during their absence, the accused persons used the cheques and deposited the same and different amounts of money were withdrawn. This gave rise to the suspicion that her cheque book and the pass book of the State Bank of India, Liluah Branch were being forged by the accused person. 5. The complainant alleged that the partnership documents were manipulated and forged by the accused/petitioners so as to deprive the husband of the complainant his 1/4th share in the business having a turn over of about Rs. 8 to Rs. 9 crores per year. It was further alleged that the accused persons with the common intention to cause wrongful loss and for the wrongful gain hatched up a conspiracy along with others and misappropriated valuable interests and properties of the complainant and her husband and cheated and forged documents thereby committing offences under Sections 406/420/467/468/469/ 120B/34 of the Indian Penal Code. 6. It was further alleged that the accused persons with the common intention to cause wrongful loss and for the wrongful gain hatched up a conspiracy along with others and misappropriated valuable interests and properties of the complainant and her husband and cheated and forged documents thereby committing offences under Sections 406/420/467/468/469/ 120B/34 of the Indian Penal Code. 6. Learned Chief Judicial Magistrate, Howrah, on receipt of the said complaint made it over to the learned Court of S.D.J.M., Howrah after taking cognizance After completion of investigation, investigating authority submitted charge-sheet No. 54 dated 18.7.2005 for the alleged offences. 7. The petitioners in the present application claimed that they are in no way connected with the commission of the alleged offences. According to the petitioners, the complainant being accompanied by her husband left for Punjab leaving the business which was running at a loss. There was huge amounts of outstanding dues with the State Bank of India. With the efforts of the son of petitioner No. 1, the business could be turned around. The petitioners categorically claimed that the allegations made in the petition of complaint and the materials disclosed in course of investigation do not justify proceeding with the case. In such circumstances, the petitioners prayed for quashing of the said proceeding. 8. Mr. Mukherjee, appearing as learned Counsel for the petitioners, submitted that in order to constitute an offence of cheating under Section 420 of the Indian Penal Code, there must be fraudulent or dishonest inducement. Since the petitioner No. 1 and her son were voluntarily given the care of the business and the residence, there could be no scope for attracting Section 420 of the Indian Penal Code. It was submitted that the offence of criminal breach of trust under Section 406 of I.P.C. has the following ingredients:- (a) Entrustment of property by the aggrieved to the accused; and (b) Consequent misappropriation and/or conversion to his own use of such property by the accused, thereby causing wrongful loss to the aggrieved. 9. Mr. Mukherjee contended that there is no question of entrustment of property by a partner in favour of another partner and as such, there could be no scope for implicating the present petitioners for the offence under Section 406 of I.P.C. either. 9. Mr. Mukherjee contended that there is no question of entrustment of property by a partner in favour of another partner and as such, there could be no scope for implicating the present petitioners for the offence under Section 406 of I.P.C. either. It was further submitted on behalf of the petitioners that the charges for the offences under Sections 420/406 of I.P.C. cannot co-exist and are erroneous because of the fact that if there is entrustment of property as required under Section 406 of the Indian Penal Code upon the petitioner No. 1, then the same person cannot be in a position to dishonestly induce the complainant/opposite party No. 2. According to Mr. Mukherjee, the instant criminal proceeding is not maintainable and it is misconceived. 10. Mr. Chatterjee, appearing as learned Counsel for the State, submitted that there is no such reason which can justify interference of this Court at this stage. According to Mr. Chatterjee, the allegations made in the complaint were duly investigated and after completion of investigation, the concerned authority submitted charge-sheet. Inviting attention of the Court to the materials disclosed in course of investigation, Mr. Chatterjee submitted that there can be no justification whatsoever for quashing the criminal proceeding in exercise of this Court's inherent power under Section 482 of the Code of Criminal Procedure. 11. It appears from the materials available on record that the alleged incident took place during the period from 1995 to 2002. But the FIR was lodged quite some time after i.e. on 29.4.2004. The investigating authority after completion of investigation submitted charge-sheet on 8.7.2005. Referring to all such factors, Mr. Mukherjee contended that this is a stale litigation and continuation of such a criminal proceeding will be an abuse of the process of Court. 12. Whether charge under Section 406 of the Indian Penal Code can be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to both of them as partners fell for consideration before the Apex Court. (Ref: Mrs. Dhanalakshmi v. R. Prasanna Kumar & Ors. as reported in AIR 1990 SC 494 ). 13. (Ref: Mrs. Dhanalakshmi v. R. Prasanna Kumar & Ors. as reported in AIR 1990 SC 494 ). 13. In the said case, it was held, deriving inspiration from various other judgments, that if a partner is to be charged under Section 406 of I.P.C., it must be held that property belonging to somebody else was entrusted to him. A partnership firm has no existence apart from the partners and is not an entity like a limited company which can own property. If a partner holds partnership property it cannot be said that he has been entrusted with his own share in the property if he had any share in it. 14. It is worth mentioning that whether or not a partner can be said to have been entrusted with property must depend upon whether there is any special agreement between the parties. If there is no special agreement, he does not receive property in a fiduciary capacity. 15. In the case of Piddock v. Burt (3), 1894 (1) Ch. 343, it was held that a partner who receives money belonging to the partnership on account of himself and his co-partner does not do so in a fiduciary capacity. At common law in England no criminal prosecution can be maintained by one partner against another, for stealing or embezzling by false pretexts or misappropriating property of the firm. Partners are regarded in law as joint owners or co-owners of the partnership property. 16. The relationship is virtually like that of 'comrades in arms'. 17. In the case of Velji Raghavji Patel v. The State of Maharashtra, as reported in AIR 1965 SC 1433 , it was held that an owner of property, in whichever way he uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But he does not thereby commit any misappropriation. 18. It is true that investigating agency must have the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. But he does not thereby commit any misappropriation. 18. It is true that investigating agency must have the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. (Ref: State of Haryana v. Bhajan Lal, JT 1990(4) SC 650 and Rajesh Bajaj v. State NCT of Delhi, JT 1999(2) SC 112. 19. It is well settled that to constitute an offence of cheating, intentional deception must be shown to exist right from the beginning of the transaction. Relying upon the decision in the case of Hridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr., as reported in 2000 SCC (Cri) 786, it was submitted on behalf of the petitioners that it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 20. It is true that exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare case so as not to scuttle the prosecution. (Ref: M/s. Medchl Chemicals and Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors., as reported in 2000 C.Cr.LR (SC) 488). 21. Attention of the Court was also invited to the decision of the learned Single Judge, in the case of Jayanta Saha v. State of W.B. & Anr., as reported in 2004 (2) Cal LT 314 (HC). 22. Analysing the facts and materials of the case under reference, the learned Single Bench observed in the said case that since the complainant could not be said to be the exclusive owner of the property in question, there could be no entrustment nor any subsequent misappropriation. In absence of material constituting offence under Section 420 of I.P.C., learned Court allowed the application under Section 482 of Cr.P.C. thereby quashing the entire criminal proceeding. In absence of material constituting offence under Section 420 of I.P.C., learned Court allowed the application under Section 482 of Cr.P.C. thereby quashing the entire criminal proceeding. In the present case, it may be said that the allegations made in the complaint do not suffer from any inherent hollowness or intrinsic absurdity. But even assuming that such allegations are true, it cannot be said that there could be any offence under Section 420 or Section 406 of I.P.C. 23. In such backdrop, this Court finds it difficult to brush aside the grievances, as ventilated in the present application. In the considered opinion of this Court, further proceeding of the case, in such circumstances, will amount to abuse of the process of Court. Accordingly, the application being C.R.R. No 3391 of 2005 be allowed. The criminal proceeding of G.R. Case No. 1131 of 2004 arising out of Malipanchghora Police Station Case No. 55 of 2004 dated 29.4.2004 now pending before the learned Court of S.D.J.M., Howrah be quashed. 24. Petitioners/accused persons in the said case, if on bail, be discharged from their respective bail bonds. A copy of the judgment be sent to the learned Court of S.D.J.M., Howrah for information and necessary action. Case diary be returned through the learned Counsel for the State. Criminal department is directed to supply xerox certified copy of this judgment, if applied for, to the learned Counsel for both parties in compliance with due formalities as expeditiously as possible.