Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 494 (CAL)

Piyush Periwal v. STATE OF WEST BENGAL

2008-05-07

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) BY this revisional application dated 22. 11. 2006 under Section 482 of the Cr. P. C. prayer is made for quashing of a proceeding being Ballygunj P. S. Case No. 101 dated 25. 8. 2004 corresponding to CGR Case No. 2473 of 2004 under Section 420/406 of the I. P. C. The O. P. No. 2 which is a proprietary concern lodged a complaint against the present petitioner alleging that at the intervention of a finance broker Dilip Kumar Surana, the O. P. No. 2 advanced Rs. 25 lac to the petitioner as loan. The petitioner is a Managing Director of M/s. National Plywood Company and was in need of money. The petitioner was required to repay the amount within 125 days and the loan was acknowledged. After expiry of three months the petitioner issued a cheque being No. 586064 dated 24. 11. 1998 for Rs. 93,493/-drawn on Standard Chartered Bank, N. S. Road, Calcutta -1 in favour of M/s. Raylon Industries on account of interest of loan. That cheque was dishonoured. Again the petitioner issued a cheque for Rs. 10 lac being No. 586074 dated 24. 12. 1998 towards payment of the principal amount. It was also dishonoured. Then sensing mala fide intention of the accused the complainant made several representations to the petitioner-accused personally and over phone demanding money but the petitioner deferred payment on different pretext, Being pressurized by the complaint again the accused issued three cheques as follows :- (2.) ALL the cheques were again dishonoured. It became clear that the accused has dishonest intention and was not inclined to pay the amount. Several representations were made but in vain. The complaint now is to get Rs. 45,63,625/ -. Hence the petition of complaint under Section 420/406 of the I. P. C. (3.) THIS petition was filed before the learned ACJM, Alipore and he referred the matter to police for investigation under Section 156 (3) of the Cr. P. C. and the police registered the case under Ballygunj P. S. Case No. 101 dated 25. 8. 2004 under Section 420/406 of the I. P. C. against the present petitioner. Investigation was started and at that time the accused petitioner filed this petition for quashing of the proceeding obtaining an interim order of stay long ago. (4.) THE accuseds contention are that it is not that the accused got loan of Rs. 8. 2004 under Section 420/406 of the I. P. C. against the present petitioner. Investigation was started and at that time the accused petitioner filed this petition for quashing of the proceeding obtaining an interim order of stay long ago. (4.) THE accuseds contention are that it is not that the accused got loan of Rs. 25 lac but that he got loan of Rs. 50,00, OOO/-in two instalments of Rs. 25 lac each and the complainant has not made the actual picture here. The petitioner paid to the complainant company a sum of Rs. 42,16,921/ -. Allegations in the complaint are false and fabricated and only a part of amount of loan is due and payable. The petitioner has been regularly paying money from time to time and there was no criminal intention on the part of the petitioner. Story in the FIR are all false and fabricated. There was no material to prove the case against the petitioner. The proceeding is a mala fide one, to wreck vengeance against the petitioner and accordingly, the proceeding should be quashed. (5.) I have heard Mr. Amit Bhattacharjees, learned Advocate appearing for the petitioner and Mr. Tarique Quasimuddin, learned Advocate appearing for the O. P. (6.) MR. Bhattacharjee, learned Advocate appearing for the petitioner submitted that mere dishonourment of the cheque would not constitute offence of cheating and where it appears that the parties have been in business transaction for a long time payments of money have been made from time to time it was quite inappropriate for the complainant to lodge a complaint under Section 420 of the I. P. C. Decisions in Hriday Ranjan Prasad Verma and Ors. v. State of Bihar and Anr., 2000 C Cr LR (SC) 293, Hari Prasad Chamaria v. Bishun Kumar Surekha and Ors. , 1993 SCC (Cr) 1082, K. C. Builder and Anr. v. Assistant Commissioner of Income Tax, 2004 SCC (Cr) 1092, All Cargo Movers (I) Private Limited and Ors. v. Dhanesh Badarmaljain-and Anr. , (2007)4 Crimes 163 (SC) have been cited along with the decisions in State of Haryana v. Bhajanlal, 1992 Supple (1) SCC 335 and R. B. Kapoorv. State of Punjab, AIR 1960 SC 866 which have made the law clear that the quashing of a criminal proceeding under Section 482 of the Cr.P.C. has to be a rarest of rare case. State of Punjab, AIR 1960 SC 866 which have made the law clear that the quashing of a criminal proceeding under Section 482 of the Cr.P.C. has to be a rarest of rare case. Several guidelines are there in the State of Haryana v. Bhajanlal (supra). Only when it is prima facie found that no offence is disclosed in the complaint or in the FIR, or when the complaint of the FIR is a mala fide one, or when there is no evidence of legal character or when there is legal bar to be taking cognizance of the offence, then and then only a complaint or the FIR can be quashed under Section 482 of the Cr.P.C. Here the FIR relates to the allegation that the complainant advanced a loan of Rs. 25 lac and it was understood by and between the parties that the loan would be repaid with interest by 125 days. Accused-petitioner on expiry of three months issued a cheque bearing No. 586064 dated 24.22.2998 for Rs. 93,493/- towards payment of interest in favour of the complainant but the cheque got dishonoured. Then the accused issued a cheque being No. 586074 dated 24.12.1998 for Rs. 10 lac towards payment of the principal amount which was also dishonoured. Then allegedly representations were made with the accused person for the payment of loan and thereafter the accused issued three cheques for Rs. 11,12,192/-, 63,425/- and 50,000/-which were all dishonoured. Then the instant case has been filed. (7.) NOW the petitioner comes up with a case that a sum of Rs. 50 lac was advanced in favour of the petitioner, not Rs. 25 lac and the said fact has been suppressed by the complainant and further that the petitioner has so far paid a total sum of Rs. 42,16,921/-and that only a small amount of loan is due and payable. It is not proper and appropriate for this Court in the context of the conflicting versions of the accused to arrive at a fact finding while exercising the power under Section 482 of the Cr. P. C. Apparently, five cheques were presented to the bank as were issued by the complainant and all the cheques were dishonoured. According to the complainant, as per his petition the accused person proceeded with dishonest intention to dupe the complainant to the tune of Rs. P. C. Apparently, five cheques were presented to the bank as were issued by the complainant and all the cheques were dishonoured. According to the complainant, as per his petition the accused person proceeded with dishonest intention to dupe the complainant to the tune of Rs. 45, 63,624/- on the false pretext of short term loan. It has been stated in the petition of complaint that it had been known to the complainant that the accused would fraudulently and dishonestly induce the complainant to part with the money so as to obtain wrongful gain he would not have parted with the money to the tune of Rs. 25 lac. Apparently, elements of Section 420 of the I. P. C. have been alleged, no matter whether they come to be proved at the investigation or not. (8.) LEARNED Counsel for the opposite party submitted that it is not permissible for the Court to decide the case with reference to the allegations of facts narrated in the revisional application because those allegations of facts may at best constitute a line of defence and while exercising jurisdiction under Section 482 of the Cr.P.C. it will not be appropriate on the part of the High Court to examine the defence plea. It is submitted that there are innumerable decisions of the Honble Supreme Court as also of the other High Courts on the point raised as to whether there could be or could not be a case of cheating when the complainant is denied payments in a given fact situation. It is submitted that all the decisions of the Honble Supreme Court are based on facts and circumstances of each particular case and none of the decisions can be made universally applicable to any and every case that would come up to this Court for consideration under Section 482 of the Cr. P. C. My attention has been drawn to the decisions in State of Orissa and Anr. v. Swaroj Kr. Sahoo, (2006)2 SCC (Cr) 272, State of Karnataka v. M. Devendrappa and Anr. , (2002)2 SCC (Cr) 539 : 2002 C Cr LR (SC) 324, State of Orissa v. Devendra Nath Padhi, 2005 SCC (Cr) 415 : (2005)1 C Cr LR (SC) 487, Rajesh Bajaj v. State-NCT of Delhi and Ors. , 1999 SCC (Cr) 401 : 1999 C Cr LR (SC) 234, State of Madhya Pradesh v. Awadh Kishore Gupta and Ors. , (2002)2 SCC (Cr) 539 : 2002 C Cr LR (SC) 324, State of Orissa v. Devendra Nath Padhi, 2005 SCC (Cr) 415 : (2005)1 C Cr LR (SC) 487, Rajesh Bajaj v. State-NCT of Delhi and Ors. , 1999 SCC (Cr) 401 : 1999 C Cr LR (SC) 234, State of Madhya Pradesh v. Awadh Kishore Gupta and Ors. , 2004 SCC (Cr) 353 : 2004 C Cr LR (SC) 127 to argue that when the criminal ball has been set into motion it would not be appropriate for the Court to stifle the Investigation of the case by the police and more particularly when the instant case the police has examined a number of witnesses the defence cannot bank upon its own story before the trial commences. (9.) THE decision in Alpic Finance Limited v. P. Sadhasiban and Anr., JT (2001)2 SC 588 had a fact situation where it was palpably clear that the appellant had an oblique motive of causing harassment to the respondent by seizing the entire articles through the magisterial proceedings. It was a lease agreement by and between the parties and the respondents allegedly failed to discharge the contractual obligation. (10.) IN S. W. Palanitkar and Ors. v. State of Bihar and Anr. , 2002 SCC (Cr) 129 there was an agreement between the parties for consignment of goods. It was observed by. Honble Supreme Court that at the time of agreement none of the other appellants either met the respondent No. 2 or induced him to enter into any agreement with a view to cheat him. There was supply of 400 tons of fertilizer also, and in this fact situation it was observed that it could be not deciphered that the accused had dishonest intention at the commencement of the transaction. The decision in G. V. Rao v. L. H. V. Prasad and Ors. , 2000 SCC (Cr) 733 : 2000 C Cr LR (SC) 302 is in a peculiar fact situation. Here the petitioner was represented that the respondents belonged to a certain caste/community. He belonged to a forward caste but after marriage it was found that the girl belonged to a lower caste. Their Lordships directed the parties to mutually settle the dispute and dismissed the petition. Here the petitioner was represented that the respondents belonged to a certain caste/community. He belonged to a forward caste but after marriage it was found that the girl belonged to a lower caste. Their Lordships directed the parties to mutually settle the dispute and dismissed the petition. In Hirday Ran/an Prasad Vermas (supra) case herein the appellant agreed to sell their land to a cooperative society represented by respondent No. 2 who paid Rs. 11,00,000 by way of drafts. Appellants executed a sale deed in respect of the land in favour of the society. The appellants delivered possession to the society on registration of the sale deed. Respondent No. 2 handed over three cheques which were bounced. Appellants filed a case under Section 406/420 of the Indian Penal Code and they also filed three suits for realization of the amount due. Respondent No. 2 filed a complaint against the appellants alleging offences under Sections 420/423/469/504/120b of the Indian Penal Code. It was alleged that the accused/appellant cheated the society by giving false, concocted and wrongful information and induced the complainant to enter into negotiations and to advance them a heavy amount. The appellants alleged that the criminal case against them was a counter blast to the civil case and a civil suit was filed against the respondent No. 2. In this fact situation the Honble Supreme Court quashed the proceeding. In Uma Sankar Gopalika v. State of Bihar and Anr. , (2006)2 SCC (Cr) 49 there was a hire purchase agreement between the parties. The complainant made over his part of investment by paying a sum of Rs. 1,60,000/- and also the documents. Complainant could repay only three instalments to the financier. Meanwhile, the vehicle became traceless and insurance claim was made. The appellant called on the complainant and induced him to permit the appellant to handle the insurance claim which was acceded to by the complainant on assurances given by the appellant that when claim of Rs. 4,20,000/-is received from the insurance company, out of that sum a sum of Rs.2,60,000/- would be paid to the complainant. Upon this assurance, a complaint was made by the accused persons before the Consumer Forum and the claim was allowed. Insurance company issued a cheque for Rs. 4,20,000/- but the same amount a sum of Rs. 2,60,000/-was not paid to the complainant. Upon this assurance, a complaint was made by the accused persons before the Consumer Forum and the claim was allowed. Insurance company issued a cheque for Rs. 4,20,000/- but the same amount a sum of Rs. 2,60,000/-was not paid to the complainant. It was observed that it was a breach of the contract and criminal proceeding was quashed. In Ram Biraj Devi v. Umesh Kumar Singh and Anr. , JT (2006)2 SC 133 : (2006)2 C Cr LR (SC) 118, it was an agreement for sale of a property and the version of the complainant was found to be self-contradictory. In Vir Prakash Sharma v. Anit Kumar Agarwal and Anr, (2007)3 SCC (Cr) 370 : (2008)1 C Cr LR (SC) 28, it was held that merely because the accused issued cheques which got dishonoured the same by itself could not mean that he cheated the complainant. The decision in Theeapalli Raghavai v. Station House Officer and Ors. , JT (2007)4 SC 493 : (2007)2 C Cr LR (SC) 59, the facts were that there was a dispute between the subcontractor and the complainant and the dispute related to measurement of the materials. In All Cargo Movers (supra) there was delivery of this consignees to the original consignee but the same was allegedly rejected on the ground of being inferior in quality. Their Lordships held that bare perusal of the letters/notices would clearly show that no allegation had been made at the material time that it was the appellant who had caused delivery of the goods. Thus, we find that each case has been decided in its own merit but the central point that the existence of fraudulent intention at the inception of the transaction must not be missed. (11.) THE defence plea as stated earlier cannot be considered at this stage and when the investigation has been taken up such a defence plea by the police cannot be taken to be true without trial. The facts situation is complex and when the investigation has been taken up it does not appear to be reasonable to halt the investigation. In this connection, reference may be made to State of Orissa v. Devendranath Padhi (supra) where it was held that where investigation was not completed or where charge sheet has been issued quashing of the proceeding by appreciating evidence is impermissible. In this connection, reference may be made to State of Orissa v. Devendranath Padhi (supra) where it was held that where investigation was not completed or where charge sheet has been issued quashing of the proceeding by appreciating evidence is impermissible. In this case it was held that the inherent power should not be exercised to stifle a legitimate prosecution and the High Court should normally retrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved cannot be seen without sufficient materials. The above position was again reiterated in State of Karnataka v. Md. Debendrappa, 2002 SCC (Cr) 539. (12.) IN the circumstances the revisional application is dismissed and interim orders are vacated. (13.) COPY of this order shall be sent to the ACJM, Alipore for information and necessary action.