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2008 DIGILAW 639 (JHR)

Tanushree Banerjee v. State of Jharkhand

2008-06-25

D.K.SINHA

body2008
Order The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the entire criminal proceedings in a Complaint vide C.P. Case No. 392 of 2005 and the order impugned dated 3.2.2007 passed by Sri B.K. Lal, Judicial Magistrate, 1st Class, Bokaro who; upon finding prima facie materials against the petitioner in an enquiry under Section 202 of Cr. P.C. directed summons to be issued against the petitioner Tanushree Banerjee for the alleged offence under Sections 406/ 420/120B of the Indian Penal Code. 2. The prosecution story in. short for the appreciation of the merit of this case was, that the complainant-opposite party No.2 Rajendra Prasad, filed a complaint aforesaid in the Court of the Chief Judicial Magistrate, Bokaro against as many as four accused persons, including the petitioner, Tanushree Banerjee alleging, inter alia, that the accused Meena Kumari, Mani Devi and Ajit Kumar, all the partners of the 'M/s Data Craft Technology' along-with the petitioner who was the Manager (Adm.) in the said firm, committed criminal breach of trust in furtherance of their common intention by dishonestly inducing the complainant-opposite party No.2 to invest and deliver a sum of Rs.4 lakhs in the said firm pursuant to an agreement and promise that the amount so invested by him shall. be returned with interest. It was further alleged in the complaint that the accused persons in lieu of such investment issued six post dated cheques, total to the tune of Rs.5,18,000/- as per terms and conditions, but when the said cheques were presented by the complainant-opposite party No. 2 for payment, it were returned to him with the endorsement and memo of the drawee’s Bank dated 27.5.2005 that the account holders had 'already closed their accounts' and in this manner the cheques issued by the accused persons returned unpaid. The complainant/opposite party No. 2 then sent a legal notice on 10.6.2005 calling upon the accused persons to pay the cheque amount in cash totaling to the tune of Rs.5,18,000/- within 15 days from the date of receipt of the letter but the accused persons failed to do so within the statutory period, hence the cause of action for the complaint. The complainant/opposite party No. 2 finally alleged that the accused persons in furtherance of their common intention and with ulterior motive induced several persons including him to invest money in the said firm and thereby cheated all the investors in the same manner as they cheated him individually. The complainant had given list of the persons who were cheated at the hands of the accused persons and dishonestly caused wrongful loss to the investors but wrongful gains to themselves. 3. Mr. Kaushik Sarkhel, the learned counsel pointed out that from the plain reading of the complaint case, it would be evidently clear that the petitioner was acting as Manager (Administration) and was assigned the duty of convincing people and making them agreed for investment in the said firm as admittedly, she was a salary paid employee in M/s Data Craft Technology. She used to get her salary through cheques issued by the firm duly signed by the partners. It would not be but of place to mention, the learned counsel exhorted, that salary paid to her through cheques were also dishonoured and to that effect the father of the petitioner preferred a complaint case No. 421 of 2006 in the Court of C.J.M., Bokaro. against the partners (co-accused) of the said firm for the alleged offence under Sections 420/ 384/389/467/468/471/406/506 read with Section 120B of the Indian Penal Code for causing deception to her during employment of the petitioner in their firm. Advancing his argument Mr. Sarkhel submitted that a certificate was issued to the petitioner by the firm M/s Data Craft Technology under the signature of the co-accused Meena Kumar Lone of the partners in the firm, certifying that Tanushree Banerjee (petitioner) joined her company as a paid employee on monthly salary basis and that she had no personal claims or liabilities regarding any business proceedings of the said company and that she used to work as per instructions of the partners which was being followed by her. It was further certified therein that any public dealing regarding financial or any other matter had no personal relation with Tanushree Banerjee (petitioner) (Annexure-4). 4. The attention of this Court was attracted towards the fact that after enquiry under Section 202 of Cr. It was further certified therein that any public dealing regarding financial or any other matter had no personal relation with Tanushree Banerjee (petitioner) (Annexure-4). 4. The attention of this Court was attracted towards the fact that after enquiry under Section 202 of Cr. P.C. the learned Magistrate took cognizance of the offence under Section 420 of the Indian Penal Code and under Section 138 of Negotiable Instrument Act only against three accused persons excluding the petitioner upon finding no criminal liability with respect to such offence against her. The complainant-opposite party No. 2 then preferred Cr. Rev. No. 141 of 2005 in the court of the learned Sessions Judge, Bokaro who by his order dated 7.3.2006 set aside the order passed by the learned Judicial Magistrate dated 26.9.2005 with the direction:- "So far as the operative portion of issuing processes is concerned, the learned Magistrate is directed to pass order for issuing of processes against all the accused persons named in the complaint petition. Accordingly, this revision stands allowed." 5. Mr. Kaushik Sarkhel, the learned counsel pointed out that against the impugned order passed by the Sessions Judge in Cr. Rev. No. 141 of 2005 on 7.3.2006 a Cr. Rev. No. 240 of 2006 was preferred by the petitioner in this Court and by order dated 26.7.2006 this Court set aside the order passed by the Sessions Judge by holding that the learned Sessions Judge by the impugned order directed the Trial Magistrate to pass order for issuing all processes against all the accused persons named in the complaint petition including the petitioner Tanushree Banerjee without appreciation of the prima facie materials. The matter was remitted back to the court of Shri Manish, Judicial Magistrate, 1st Class, Bokaro for fresh determination of prima facie liability against the petitioner Tanushree Banerjee and to pass a speaking order in accordance with law in supers-ession of his earlier order dated 26.9.2005 in C.P. Case No. 392 of 2005 corresponding to T.R. No. 1577 of 2005. 6. Pursuant to such observation, the learned Judicial Magistrate vide order dated 3.2.2007 passed the impugned order in the following manner:- "on perusal of the complaint petition, documents filed by the complainant as well as the witnesses examined in the stage of enquiry I come to the conclusion that a prima facie case is made out under Section 138 of N.1. Pursuant to such observation, the learned Judicial Magistrate vide order dated 3.2.2007 passed the impugned order in the following manner:- "on perusal of the complaint petition, documents filed by the complainant as well as the witnesses examined in the stage of enquiry I come to the conclusion that a prima facie case is made out under Section 138 of N.1. Act and 420/120B of the IPC against three accused persons namely Ajit Kumar, Meena Devi and Mani Devi partners of M/s Data Craft Technology, B.S. City, Bokaro and under Sections 406/420 and 120B of IPC against the accused Tanushree Banerjee (Petitioner). Let the summons be issued against the accused persons." 7. The counsel pointed out that the learned Judicial Magistrate on reappraisal of the materials on the record and by reviewing his own order illegally, found prima facie materials for the alleged offence under Sections 406/420/120B of IPC against Tanushree Banerjee (petitioner) though she was exonerated from her criminal liability in the earlier order by the Judicial Magistrate. Accordingly, being aggrieved the petitioner prayed for the quashment of the order dated 3.2.2007. 8. On the point of law Mr. Sarkhel submitted that on the plain reading of the complaint petition, even if the allegation is to be taken in its entirety to be true, no offence either under Section 406 or under Section 420 Indian Penal Code is made out against the petitioner Tanushree Banerjee who was never entrusted by the firm to induce the opposite party No. 2 to part with a huge amount. The job of the petitioner was to make the investors understand about the offers of the firm and she had just complied to the instructions of the partners of the firm, as per the service condition, which was the part and parcel of her job. The complainant no where alleged that he entrusted cash amount to her and she dishonestly misappropriated the amount to her own use or she disposed of the same in violation of terms of agreement prescribing the mode in which such trust was to be discharged. Similarly it was no where alleged that the petitioner cheated the complainant/Opposite Party No. 2 or fraudulently or dishonestly induced him to invest his money in the M/s Data Craft Technology. On the other hand, according to business policy of the firm, she invited the investors to invest in the said firm against profits. Similarly it was no where alleged that the petitioner cheated the complainant/Opposite Party No. 2 or fraudulently or dishonestly induced him to invest his money in the M/s Data Craft Technology. On the other hand, according to business policy of the firm, she invited the investors to invest in the said firm against profits. In this manner no offence much less under Sections 420/ 406/120B of IPC is made out against the petitioner. Advancing his argument the learned counsel submitted that complainant-opposite party no. 2 for the similar cause of action and similar allegation against the petitioner and co-accused filed a police case giving rise to G.A. No. 1218 of 2004 in which the petitioner and others were called upon to stand charge for the offence under Sections 467/468/471/406/ 420/120B of the Indian Penal Code. This Court in Cr. Rev. No. 183 of 2007 by a detailed order dated 14.12.2007 after appreciation of the merit of the case of the petitioner allowed the Cr. Rev. by setting aside the impugned order dated 25.1.2007 passed by Sri. B.K. Lal Judicial Magistrate, Bokaro in G.R. No. 1218 of 2004 and the petitioner Tanushree Banerjee was discharged from her criminal liability. In the instant case, the complainant/opposite party No. 2 for the similar cause of action, filed the complaint case which was not maintainable as against the petitioner as she has been put to double jeopardy by vexatious and malicious prosecution at the hands of complainant/opposite party NO.2. The petitioner was a lady at her young age, not at all concerned with the profit and loss of the firm as she being not the beneficiary, Mr. Sarkhel added. 9. A counter affidavit has been filed on behalf of the complainant/opposite party No. 2 refuting the contention by stating that the petitioner was one of the partners of M/s Data Craft Technology, acting in disguise as a Manager, forming part of the management of the firm and this fact was admitted by the mother of the petitioner Bani Shikha Banerjee on oath in C.P. Case No. 421 of 2005 in her deposition. It was admitted that the petitioner's cheque of Rs.40,000/- was dishonoured on 4.11.2004 but the petitioner neither issued any notice as per the N.I. Act nor she filed any case against the partners of M/s Data Craft Technology for recovery of the same as she was the non-contractual beneficiary of the firm. It was admitted that the petitioner's cheque of Rs.40,000/- was dishonoured on 4.11.2004 but the petitioner neither issued any notice as per the N.I. Act nor she filed any case against the partners of M/s Data Craft Technology for recovery of the same as she was the non-contractual beneficiary of the firm. The complainant/ opposite party No. 2 admitted in his counter affidavit about the institution of an other case vide Sector-IV P.S. Case No. 108 of 2004 corresponding to G.R. No. 1218 of 2004 in relation to different cheques issued by the partners which were also returned unpaid and for that as there was a separate cause of action, in the circumstances, the question of double jeopardy against the petitioner did not arise. The complainant/opposite party No. 2 revealed in his counter affidavit that the petitioner was having joint liability along-with the other partners of the firm as she was taking money even in her own name by cheques and cash and as such she acted much beyond her limits of an employee which could be evident from the bank confirmation issued by the H.D.F.C. Bank and Punjab National Bank, Bokaro (Annexures-4 and 4/1). Finally it was submitted that there was no material in the quashing petition preferred on behalf of the petitioner for the relief as claimed and so it was fit to be dismissed. 10. A rejoinder to the counter affidavit was filed on behalf of the petitioner in which mother of the petitioner stated on oath that the petitioner was a temporary employee of the firm as would be evident from the employment certificate annexed with the main quashing petition and she was assigned with the duty of counselling and clerical job. As such she used to act as per instruction of the partners of the said firm. There was no allegation at all in the complaint case that the petitioner in any manner misappropriated any amount or she had personally received any amount other than on behalf of M/s Data Craft Technology. Money receipts were signed by the duly authorized partner of. the firm Mrs. Meena Kumari. There was no allegation at all in the complaint case that the petitioner in any manner misappropriated any amount or she had personally received any amount other than on behalf of M/s Data Craft Technology. Money receipts were signed by the duly authorized partner of. the firm Mrs. Meena Kumari. It was further stated that complainant/opposite party No. 2 was very much active in the business of Data Craft Technology who instigated Ajit Kumar, whose wife and mother were the partners, to open a franchisee of Data Craft Technology, which was a sister concern of M/s Newton M.P. Technology, Bangalore and the complainant/opposite party No. 2 used to obtain the official documents of Bangalore based such company and this fact was sufficient to show that the complainant/opposite party No.2 was actively involved in the management of the Data Craft Technology which stood corroborated in the complaint case No. 421 of 2005 filed by the father of the petitioner against Ajit Singh and other partners of M/s Data Craft Technology wherein, it was averred that complainant/opposite party No.2 and his associates had fraudulently induced/allured and cheated to harass the petitioner herein and her family members and complainant/opposite party No. 2 was a sleeping partner of the said firm. Having been satisfied prima facie with the materials in such complaint case, cognizance of the offence was taken under Sections 420/506 of the Indian Penal Code against Ajit Kumar and other partners including the complainant/opposite party No. 2 herein pending in the Court of Shri Akhilesh Kumar, Judicial Magistrate, Bokaro vide C.P. Case No. 421 of 2005. 11. Having regard to the facts and circumstances of the case, conscious consideration on the arguments and the affidavits filed on behalf of the parties, I find that the complainant/opposite party NO.2, besides the present Complaint Case No. 392 of 2005, preferred a police case also vide B.S. City, Sector-IV P.S. Case No. 108 of 2004 corresponding to G.A. No. 1218 of 2004 in which, after submission of the charge-sheet the petitioner was called upon to stand charge under Sections 467/468/471/406/420/120B of the Indian Penal Code almost with similar allegation against her without explanation for the need of two criminal cases instituted simultaneously. The complainant/opposite party No. 2 who admitted institution of complaint case and police case simultaneously has made futile attempt to convince this court for different causes for action that complaint was instituted for bouncing of cheques of unpaid amount of Rs.2,17,000/- whereas police case was lodged for bouncing of six post dated cheques issued by the partners of M/s Data Craft Technology for unpaid sum of Rs.5,18,000/- and in both the cases the complainant/opposite party No.2 admitted the petitioner Tanushree Banerjee as the Manager (Administration) of M/s Data Craft Technology and not a partner of the said firm. 12. The petitioner Tanushree Banerjee has been discharged from her criminal liability for the alleged offence in G.R. No. 1218 of 2004 by the order of this Court in Criminal Revision No. 183 of 2007 on 14.12.2007. 13. I further find that the father of the petitioner namely A.K. Banerjee filed a complaint vide C.P. Case No. 421 of 2005 before the C.J.M. alleging inter alia that a sum of Rs. 40,000/- invested by him in M/s Data Craft Technology was not returned by its partners and in that . case the petitioner appearing as a witness of the complainant, during course of enquiry under Section 202 Cr. P.C., supported the claim of her father and on the materials whereof collected, cognizance of the offence was taken against all the partners of M/s Data. Craft Technology including against the O.P. NO.2 Rajendra Prasad and this fact stands substantiated that the petitioner Tanushree Banerjee was not the partner in the said firm so as to share the criminal liability if at all. 14. The complainant/opposite party No. 2 by filing the Xerox copy of the certificate issued by one of the partners of M/s Data Craft Technology has supported the defence of the petitioner that she was working there and joined in the company as paid employee on the monthly salary basis and that she had no personal claims or liabilities regarding any business proceedings taking place in the company and that she used to work under the instructions of the firm and follow the same. It is evidently clear from the certificate filed in counter affidavit and I am convinced that the petitioner was not liable for any transaction or in the profit or loss of the firm and she used to follow the instruction as she was bound to do as per service condition. 15. I find substance in the argument of the learned counsel for the petitioner as recorded in paragraph 8 of this order that in the circumstances no offence under. Section 406 or 420 or 120B IPC is made out for want of her mens rea of causing deception, cheating or any kind of inducement to the opposite party No.2 to deliver any property or amount thereby causing dishonestly misappropriation for her personal gains. Admittedly, whatever amount she received, it was received in the capacity of Manager (Administration) as the monthly paid employee for and on behalf of M/s Data Craft Technology. I find that for the alleged charge/offence against the partners of the said firm she cannot be held criminally liable. 16. Under the aforesaid premises, the order impugned dated 3.2.2007 passed in C.P. Case No. 392 of 2005 by Shri B.K. Lai, Judicial Magistrate, 1st Class, Bokaro whereby summons was directed to be issued against the petitioner Tanushree Banerjee needs interference and accordingly, this order is set aside. She is discharged from her criminal liability in this case, accordingly, Criminal Misc. Petition is allowed.