Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 670 (GAU)

Shyamal Kr. Choudhury v. State of Assam

2009-09-15

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Goswami, learned Counsel for the petitioner and Mr. B.B. Gogoi learned Additional Public Prosecutor for the State of Assam. 2. This application has been presented under Section 482 of the Criminal Procedure Code, 1973 for quashing the proceedings in Digboi PS Case No. 102 of 2002 corresponding to G.R. Case No. 307 of 2002 under Section 420 of the IPC, which was registered on the basis of the FIR lodged by the Chairman, Oil Valley School, Digboi and the charge sheet No. 84 of 2002, which is pending before the learned Judicial Magistrate, First Class, Margherita. 3. The material facts for the purpose of disposal of this application may be stated, thus: The petitioner is a proprietor of a firm known as, IMAGE CONSULTANT and a permanent resident of 16/2B, Jamir Lane, Kolkata-19, which is having expertise in the domain of turnkey construction of swimming pool, Jacuzzis and Spas, imported installation of pre-fabricated swimming pool etc. The petitioner claimed to have experience in this business for over 15 years. The petitioner, in the aforesaid business, has constructed various prestigious projects all over the country including the construction and consultancy services to Kalkata Cricket and Foot Ball Club, Haldia Petrochemical Ltd., TATA Iron and Steel Company Ltd., etc. It also claimed to have constructed Olympic size swimming pool for the 5th National Games. The complainant/ informant, Oil Valley School, Digboi, offered the petitioner's firm for construction of a swimming pool and accordingly, the petitioner submitted a consultancy offer on 21.9.2001 for construction of a swimming pool for the said School. The chairman of the said School accepted the proposal of the petitioner by signing in the duplicate copy of the same on 8.12.2001. The petitioner constructed the swimming pool to the entire satisfaction of the School authorities and the same was inaugurated on 2.6.2002. 4. On 3.1.2002, the petitioner sent a letter to one Ms. G. Bhattacherjee of the aforesaid school enclosing thereto a list of accessories and other materials that were required for the pool. In the said letter, it was categorically mentioned that the accessories could be purchased directly by the school authorities or in the alternative, the petitioner could also arrange for supply of the same. In case the school authorities desire to supply the materials by the petitioner, a sum of Rs. In the said letter, it was categorically mentioned that the accessories could be purchased directly by the school authorities or in the alternative, the petitioner could also arrange for supply of the same. In case the school authorities desire to supply the materials by the petitioner, a sum of Rs. 1,59,875 should be sent as an advance as per price list of the materials enclosed with the said letter and the balance as per terms and conditions of the payment. The school authorities desired that the petitioner should supply the equipments and accordingly the school authorities sent a demand draft for Rs. 1,59,875. By a letter dated 23.3.2002 one Shri S. Bhattacherjee of the said school wrote a letter to the petitioner's firm asking him to prepare and send a detailed list of the swimming pool accessories including their prices and other incidental expenses as well as labour payment so that the school authorities could plan and design the matter as per their financial position. A Fax message was also sent in that regard. The petitioner's firm vide its letter dated 26.3.2002 clarified the entire matter and indicated that there would be a discount of 35% approximately on MRP on pool accessories. 5. The petitioner's firm provided a complete item-wise break up of the materials to be supplied as well as their prices and accordingly, the school authorities sent a demand draft of Rs. 1,59,875 on 25.1.2002 to the petitioner. But after inauguration of the swimming pool, the Chairman of the said School lodged an FIR on 13.8.2002 with the Officer-in-Charge of the Digboi Police Station against the petitioner making allegations of deception by way of dishonest means realising exorbitant price of articles. The police, on receipt of the FIR, registered a case being Digboi P.S. Case No. 102/2002 under Section 420 of the IPC. The police, on completion of investigation, submitted charge sheet No. 84 of 2002 on 30.10.2002 against the petitioner showing him as an absconder. The petitioner was arrested in connection with the aforesaid case on the strength of a warrant of arrest issued by the learned Magistrate, First Class, Margherita. On his application made, he was enlarged on bail on 27.12.2002 with a direction to appear before the said court on or before 15.2.2003. The petitioner was arrested in connection with the aforesaid case on the strength of a warrant of arrest issued by the learned Magistrate, First Class, Margherita. On his application made, he was enlarged on bail on 27.12.2002 with a direction to appear before the said court on or before 15.2.2003. In the meantime, as directed by the SDJM, Margherita, he was supplied with copy of the charge sheet along with FIR and seizure list and thereafter, the matter was transferred to the learned Judicial Magistrate, First Class, Margherita for disposal. By another letter dated 18.12.2002, the learned Magistrate, issued warrant of arrest and P/A fixing the case on 15.2.2003 for appearance. The petitioner filed the present petition before this Court on 31.1.2002 and by an order dated 4.2.2003, while admitting the same, the further proceeding in Digboi P.S. Case No. 102 of 2002 under Section 420, IPC was stayed pending disposal of the revision petition. 6. Mr. Goswami, learned Counsel for the petitioner submits that there is no ingredient of offence punishable under Section 420, IPC inasmuch as on perusal of the ejahar, one would find that the dispute, if any, is of civil nature and the criminal prosecution has been launched in order to victimise the petitioner and the continuance of the proceeding would be against the interest of justice and as such, the ejahar as well as the charge sheet are liable to be quashed. His further submission is that the investigating authority without taking into consideration the manner in which the order for supply of materials/articles was placed and accepted by the informant/school authorities, particularly with reference to the letter dated 26.3.2002, issued by the petitioner and based on the statements of staff of the school, hastily submitted charge sheet perfunctorily and as such, the ejahar and the charge sheet are liable to be quashed. The continuance of the proceeding pending in the court of learned Judicial Magistrate, First Class, according to Mr. Goswami, would not be in the interest of justice and the same should be closed for securing the ends of justice. This Court, under Section 482, Cr. PC has power to quash the FIR and the charge sheet and for that matter it is necessary to quash the entire proceeding to prevent abuse of process of the court and to secure the ends of justice. This Court, under Section 482, Cr. PC has power to quash the FIR and the charge sheet and for that matter it is necessary to quash the entire proceeding to prevent abuse of process of the court and to secure the ends of justice. He, however, submits that the court has to exercise the power sparingly and with circumspection. In support of his above submissions, he places reliance on the following decided cases:- (1) State of Karnataka vs. L. Muniswamy, (1997) 2 SCC 699 (2) State of West Bengal vs. Swapan Kr. Guha and other, (1982) 1 SCC 561 (3) State of Haryana and other vs. Bhajanlal and other, (1992) Suppl (1) SCC 335 (4) State of M.P vs. Awadh Kishore Gupta and other, (2004) 1 SCC 691 (5) CBI vs. Akhilesh Singh, (2005) 1 SCC 478 (6) Som Mittal vs. Government of Karnataka, (2008) 3 SCC 574 (7) CBI vs. K.M. Sharan, (2008) 4 SCC 471 7. The power of the High Court under Section 482, Cr. PC to quash a criminal proceeding is an accepted position of law but such power should be exercised very sparingly and with circumspection and that too, in the rarest of the rare cases. This has been held so by the Apex Court in a number of cases more prominently in State of Haryana and other vs. Bhajanlal and other, (1992) Suppl (1) SCC 335 and Som Mittal (supra). In Som Mittal's case (supra), it is held that quashing of a complaint or criminal proceeding under Section 482, Cr. PC depends on the facts and circumstances of each case. The Apex Court in a series of decisions explained the scope and ambit of the power under Section482, Cr. PC. In Bhajanlal's case (supra), the Apex Court listed the categories of cases where power under Section 482, Cr. PC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Apex Court in a series of decisions explained the scope and ambit of the power under Section482, Cr. PC. In Bhajanlal's case (supra), the Apex Court listed the categories of cases where power under Section 482, Cr. PC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. It may be gainfully quoted from Para 102 of the said decision: In the backdrop of the interpretation of the various relevant provision of the Code under Chapter XIV and of the Principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power can be either to prevent abuse of the process of any court or otherwise to secure the ends of justice, that it may not be possible to lay down in precise clearly defined and sufficiently channellized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officer under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which the criminal proceeding is instituted) of the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, providing efficacious reduce for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with the mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. In the backdrop of the various decisions rendered by the Supreme Court in the matter of exercise of power under Section 482, Cr. PC this Court is to find out whether on the basis of the materials available on record and the allegations leveled against the petitioner in the FIR and the charge sheet, it can be concluded that no ingredient of offence under Section 420, IPC are present in the instant case. For this purpose, it would be proper to refer the main contention/allegation made in the FIR. The FIR runs with the main allegation that the informant entrusted the petitioner originally for consultancy offer for construction of swimming pool at our school, however, later on he approached vide his letter dated 26.3.2002 to supply swimming pool accessories and its infiltration unit at a discount approximately 35% on the MRP of pool accessories. He forwarded a price list vide letter dated 3.1.2002. As per terms, we have paid Rs. 3,19,750.00 + Rs. 30,000.00 vide different demand drafts. He forwarded a price list vide letter dated 3.1.2002. As per terms, we have paid Rs. 3,19,750.00 + Rs. 30,000.00 vide different demand drafts. But later on, we found that Sri Shamal Chowdhury with a fraudulent misrepresentation regarding the price of the pool accessories and filtration unit induced us to make a exorbitant payment and thereby cheat the school and its management, parents of the students and the members of the swimming pool. It is also alleged in the FIR that Sri Shyamal Chowdhury, in spite of our repeated request and reminders did not send any cash memo and bills in respect of purchase of articles from different manufacturer and supplier. Though vide his letter dated 20.6.2002 he assured us to send all memos and bills for material purchased once the materials are despatched to our school. 9. The gist of the allegation in the FIR is that as per the agreement, the petitioner although assured the school authorities to provide all materials required for swimming pool @ 35% less than the market price, charged more cost then the company price and failed to send/submit the cash memos and guarantee card, etc., regarding the materials purchased by him on behalf of the school authority. In fact, from record, it is found that before lodging the FIR dated 13.8.2002, the Chairman of the Oil Valley School sent a letter dated 27.7.2002 to the petitioner regarding supply of swimming pool accessories in violation of certain terms and conditions of the agreement with allegations to the effect that "some materials supplied by him were worn out and either used or second hand" and demanded replacement of the same by new ones. It was also alleged in the said letter that the petitioner charged 83% more cost from the school authority although he assured @35% less than market price. The school authority, therefore, asked Shyamal Chowdhury to send the original cash memos from the source of supply of the goods purchased by him with the money deposited with him by the school authority. Till filing of the aforesaid FIR, the petitioner failed to answer the informant and furnish the cash memos as demanded by the school authority. 10. The petitioner had the knowledge about the rate of the various items, which he voluntarily offered to supply to the school authority offering @ 35% discount on the MRP. Till filing of the aforesaid FIR, the petitioner failed to answer the informant and furnish the cash memos as demanded by the school authority. 10. The petitioner had the knowledge about the rate of the various items, which he voluntarily offered to supply to the school authority offering @ 35% discount on the MRP. The petitioner kept the school authority in darkness about the price list of the items fixed by the, manufacturer and supplied the swimming pool accessories without furnishing the cash memos to the school authorities. The cash memos were not shown to the school authority in spite of demand made to the petitioner. In the FIR, the Chairman of the school furnished details of the amount paid on each item supplied by the petitioner, which are found to be at much higher rates than the rates shown in the price list of the Menmaid swimming pool. In the letter dated 3.1.2002 (Annexure-II), the petitioner, while offering to supply the materials, furnished description of the accessories for swimming pool with rates but it was not indicated therein the basis of the said rate fixed by the petitioner, to be more precise, it has not been stated whether the rate quoted by the petitioner is/was as per the rate fixed by any manufacturer or wholesaler at the relevant point of time. The school authority, in good faith, placed order with the petitioner for supply of swimming pool accessories for which advance payments were made through demand drafts etc. The informant/school authority asked the petitioner to furnish the cash memos, which he failed to do so for reasons best known to him. The school authority, therefore, made allegation of realising money at the higher rate and also supply of some substandard accessories. In another letter dated 26.3.2002 (Annexure-IV) the petitioner assured the school authority to send all the cash memos and bills for the materials purchased but it was not done so. The conduct of the petitioner demonstrates that he had guilty intention from the beginning to deceive the school authority. The mens rea on the part of the petitioner in supplying the swimming pool accessories at the higher rate and also in supplying some substandard accessories is apparent and the informant has been able to show the same in the FIR itself. The FIR has thus, prima facie disclosed commission of cognizable offence against the accused-petitioner. 11. The mens rea on the part of the petitioner in supplying the swimming pool accessories at the higher rate and also in supplying some substandard accessories is apparent and the informant has been able to show the same in the FIR itself. The FIR has thus, prima facie disclosed commission of cognizable offence against the accused-petitioner. 11. In Ajoy Mitra vs. State of M.P. and other, (2003) 3 SCC 11 , it has been held that a guilty intention is an essential ingredient of the offence of cheating. In other words, mens rea on the part of the accused must be established before an accused can be convicted on the charge of cheating. In order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. It was, however, held that unless the complainant could show 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 the present case, it has already been discussed that when the petitioner offered to supply the swimming pool accessories vide letter dated 3.1.2002 (Annexure-II), he did not furnish the rate of the items fixed by the manufacturer. This would mean that the accused-petitioner had the mens rea from the beginning of the transaction to deceive the school authority. If he had no such ill intention, he would not have held back the rate of the various items fixed by the manufacturer, which he knew well about it or which he was in a position to procure and furnish to the informant. The petitioner held back the same till filing of the FIR. He has also held back the cash memos and bills in respect of the accessories/items purchased and supplied to the school authority. 12. It has been pleaded in the petition that the submission of the charge sheet is contrary to law and the same has been filed in collusion with the complainant in order to cause undue harassment to the petitioner for illegal gain and wrongful bargain. In other words, the petitioner had alleged mala fide intention on the part of the informant as well as the investigating authority. In other words, the petitioner had alleged mala fide intention on the part of the informant as well as the investigating authority. In this regard, it would be apt to refer to Awadh Kishore Gupta's case (supra), wherein it has been held that when information is lodged at the police station and an offence is registered, then the mala fide of the informant, would be of secondary importance. The allegations of mala fide against the informant are of no consequence and cannot itself be the basis for quashing the proceeding. 13. Now coming to the submission made by the learned Counsel for the petitioner that the offence alleged in the FIR is a civil dispute and the petitioner cannot be relegated to criminal trial, I would like to refer to Trisuns Chemical Industry vs. Rajesh Agarwal and other, (1999) 8 SCC 686 wherein, it has been held that the criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. In the aforesaid case, there was an agreement between the parties with arbitration clause for referring and resolving the dispute in respect of any transaction through arbitration. In Para 9 of the judgment, the Apex Court has observed as follows: 9. We are, unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording relief's to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act, which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had 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 as indicated in State of Haryana vs. Bhajan Lal. 14. It is no doubt correct to say that if any payment of an exorbitant rate has been received by the supplier or any substandard material has been supplied, the party receiving such material, may approach the civil court for appropriate remedy. 14. It is no doubt correct to say that if any payment of an exorbitant rate has been received by the supplier or any substandard material has been supplied, the party receiving such material, may approach the civil court for appropriate remedy. There would be indeed civil liability in regard to exorbitant rate and supply of substandard materials but it would certainly not absolve the accused-petitioner of criminal liability inasmuch as the informant, in his FIR, has been able to show prima facie case for initiating criminal proceeding against the accused-petitioner. The criminal liability of the petitioner is a matter to be decided by an appropriate court in the criminal trial. The accused-petitioner would get ample opportunity to prove his innocence and get himself discharged from the criminal charges by contesting the proceeding. 15. The offence cheating is defined in Section 415 of the IPC, which is quoted below: 415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. There are two parts in it. The first part begins with whoever, by deceiving any person fraudulently or dishonestly induce the person to deceive to deliver any property to any person or to consent that any person shall retain any property. This part particularly relates to property. The second part begins with intentionally induce the person so deceived to do or omit to do thing which he would not do or omit if he were not so deceived and which Act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 16. The definition of cheating has been elaborated by the Apex Court in Hridaya Ranjan Prasad Verma vs. State of Bihar, (2000) 4 SCC 168 . It is available at para 14 and it is quoted below: 14. 16. The definition of cheating has been elaborated by the Apex Court in Hridaya Ranjan Prasad Verma vs. State of Bihar, (2000) 4 SCC 168 . It is available at para 14 and it is quoted below: 14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. The present case could be understood better if we read the further elaboration made in para 15 of the said judgment. It reads as follows: 15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, 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. 17. On a bare perusal of the FIR, one could find that the petitioner from the beginning fraudulently or intentionally induced the informant with guilty intention to supply the materials at the much higher rate to be accepted by the informant. 17. On a bare perusal of the FIR, one could find that the petitioner from the beginning fraudulently or intentionally induced the informant with guilty intention to supply the materials at the much higher rate to be accepted by the informant. The existence of a dominant motive of intentional deception by the petitioner could be found, at least prima facie, on reading the FIR itself. On perusal and consideration of the FIR and the materials accompanying it, one could find that a case under Section 420, IPC against the petitioner has been made out prima facie and the benefit provided under the principle of law for quashing the FIR and charge sheet laid down in Bhajanlal's case (supra) could not be extended to the petitioner. 18. In view of the above discussions made in the light of the principles laid down by the Apex Court in the cases referred to above, I would refrain from passing any order quashing the FIR and the charge sheet in Digboi P.S. Case No. 102 of 2002 under Section 420, IPC and also quashing the connected criminal proceeding which is pending in the court of learned Judicial Magistrate, First Class, Margherita as prayed for by the petitioner. Accordingly, this petition is liable to be dismissed, which I do so. 19. Consequently, the interim order dated 4.2.2003 also stands vacated. The LCR be sent down forthwith to the learned trial court who shall proceed with the pending criminal proceeding in accordance with law. Petition dismissed.