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2009 DIGILAW 872 (CAL)

Nalinaksha Das v. STATE OF WEST BENGAL

2009-12-02

Ashim Kumar Roy

body2009
JUDGMENT 1. INVOKING section 482 of the Code of Criminal Procedure the petitioners have brought this criminal revision before this Court for quashing of the First Information Report, relating to the Shakespeare Sarani Police Station Case No. 119, dated March 5, 2009 under sections 420,120B of the Indian Penal Code. 2. MR. Tirthankar Ghosh, the learned Advocate, appearing on behalf of the petitioners raised following points in support of the prayer for quashing; (a) No case of cheating has been made out, as there is no allegation of initial deception, or willful misrepresentation and/or fraudulent intention in the FIR. (b) The complainant has simultaneously approached both the Civil and the Criminal Court over the self-same allegations. (c) The comparison of the plaint in the Civil Suit and the allegations made in the FIR would show that there has been suppression of material facts which touches the very root of the case. (d) Mere dishonour of cheque do not amount to an offence of cheating. (e) Mere non-payment also do not make out any case of cheating. (f) Nothing has been reflected in the complaint as to the participation of all the accused persons. (g) No act or overact has been attributed to them they are only named. It was further submitted by MR. Ghosh that a contract was awarded to the company of the petitioners by Eastern Railway for "At KPA - Rehabilitation of leaky roof of residential building and service building" and in connection with the saicfjob the petitioners' company in turn placed an order to the complainant company for supply of fibre glass based bitumen felt, bitumen, Shalikote primer. According to MR. Ghosh, not only there was a short supply but 20% of the goods so supplied to the railways have been rejected as the same was sub-standard and of inferior quality. He further submitted no quality guarantee certificate and the copy of the License issued by the Bureau of Indian Standards to the complainant company were provided to the petitioners company and as a result the same could not have been produced before the Railway Authorities, moreover the complainant company raised inflated bills. It was his further submissions that over the self-same dispute the opposite party has already filed a Title Suit and the same is pending. MR. Ghosh in support of his contentions relied upon the following decisions: (i) Sharon Michel and Ors. It was his further submissions that over the self-same dispute the opposite party has already filed a Title Suit and the same is pending. MR. Ghosh in support of his contentions relied upon the following decisions: (i) Sharon Michel and Ors. vs. State of Tamil Nadu and Anr., reported in 2009(2) SCC (Cri) 103, (ii) Vir Prakash Sharma vs. Anil Kumar Agarwal and Anr., reported in 2007(3) SCC (Cri) 370, (iii) V. Y. Jose and Anr. vs. State of Gujarat and Anr., reported in 2009(1) SCC (Cri) 996. MR. Sudipto Moitra, the learned Counsel, appearing on behalf of the complainant/opposite party vehemently opposed the prayer for quashing and submitted that the allegations made in the First Information Report clearly discloses commission of the offences. He further submitted merely because a civil suit is pending over the self-same allegations that cannot be a. ground for quashing of the criminal prosecution when the offence has been made out. According to MR. Moitra suppression, if any, being a question of facts cannot also be the ground for quashing. Lastly, MR. Moitra submitted that the claim of the petitioners that there was a short supply and 20% of the goods have been returned by the Railway Authorities as the same was sub-standard is absolutely false and in this connection they have submitted necessary papers to the Investigating Agency. Thus, he prayed for dismissal of the instant criminal revision with exemplary costs. MR. Sandipan Ganguly, the learned Counsel, appearing on behalf of the State produced the case diary and brought to the notice of this Court a document showing confirmation from the railways about the receipt of goods in question as per the ordered quantity as well as the fact the entire articles have passed the test of standard and have been utilized in the work. MR. Ganguly further submitted that investigation of the case is at a very initial stage and certainly from the allegations disclosed in the FIR and from the materials so far collected by the Investigating Agency it cannot be said that no offence has been made out. Thus the question of quashing of the FIR does not at all arise. Heard the learned Counsels appearing on behalf of the parties. Perused the materials on record more particularly the First Information Report and the evidentiary materials so far collected by the police during investigation. 3. Thus the question of quashing of the FIR does not at all arise. Heard the learned Counsels appearing on behalf of the parties. Perused the materials on record more particularly the First Information Report and the evidentiary materials so far collected by the police during investigation. 3. THIS is a case for quashing of an FIR. Thus, the only question requires consideration whether on the face of the allegations contained therein and on the evidentiary materials collected during the preliminary investigation any cognizable offence has been made out or not. It is well-settled quashing of an FIR is permissible only when on the face of the allegations contained therein together with the materials collected during preliminary investigation and without controverting the correctness of the same no offence is made out. At this stage plausible defence of the accused neither needed to be considered nor is good enough for quashing. 4. HAVING gone through the impugned FIR I found there has been following allegations; (a) On being approached by the accused persons the complainant's company made an offer to supply the fibre glass bitumen felt, bitumen, Shalikote primer and the complainant company after being satisfied with the quality of the sample placed its order. (b) It was specifically mentioned that goods would be supplied against post- dated cheque. (c) The accused persons gave a post-dated cheque of Rs. 9,80,057/-. (d) The complainant's company accordingly on 12th of November, 2008 delivered the materials at the project site to the accused persons. (e) With some mala fide and fraudulent intention in spite of delivery of goods the accused persons only endorsed the consignment note without the rubber stamp. (f) In spite of repeated demands no receipt challan was given and in the meantime the accused persons asked the complainant's company not to present the cheque and hold it for some days. (g) Thereafter, pursuant to a criminal conspiracy the accuseds fraudulently raised a plea that the goods so supplied were sub-standard. (h) Although, the complainant's company, immediately intended to replace the materials if same are found to be sub-standard, neither the alleged sub- standard materials were shown to the complainant's company nor the same were returned. On 12th January, 2009 the complainant's company deposited the said cheque for encashment but the same was returned unpaid with the remarks "stop payment". (h) Although, the complainant's company, immediately intended to replace the materials if same are found to be sub-standard, neither the alleged sub- standard materials were shown to the complainant's company nor the same were returned. On 12th January, 2009 the complainant's company deposited the said cheque for encashment but the same was returned unpaid with the remarks "stop payment". (i) The accused persons since the very inception had an intention to cheat the complainant's company and by virtue of their false and fraudulent representation intentionally deceived the, complainant and others and against a post-dated cheque took delivery of the materials on a false promise that cheque would be encashed on presentation thereby dishonestly induced the complainant's company to part with the goods without any intention to pay. (j) On enquiry it is found that the accused persons have fully used and utilized the materials supplied to them but took a false plea that a portion of the goods so supplied were sub-standard. (k) The complainant's company would not have supplied the said materials to the accused persons if not so deceived. Now, on the face of the aforesaid allegations and without disputing the correctness of the same, I am unable to accept the contention of the learned advocate of the petitioners that no offence has been made out. It is the definite case of the complainant that after obtaining the delivery of goods against a post-dated cheque, the payment has been withheld on a false plea that the materials so supplied was sub-standard and even when the complainant's company expressed his intention to replace those goods the same were not returned for replacement. It is also the definite case of the complainant that the goods in question which the accused persons received from them have been fully utilized in the work. It further appears from the case diary that there is one letter issued by the railway authorities wherefrom it appears the materials in question supplied to them were in order and as per specified standard and have been fully utilized in the job. Therefore, the contention of the petitioners that there was no prima facie case of cheating cannot be accepted. 5. Therefore, the contention of the petitioners that there was no prima facie case of cheating cannot be accepted. 5. ALTHOUGH, it has been urged by the learned Advocate of the petitioners this is a civil dispute arises out of commercial transactions but an offence of cheating is very well be committed even in course of commercial transactions where there are materials which supports commission of such offence. In this connection reliance may be placed in the case of Rajesh Bajaj vs. State of NCT of Delhi, reported in 1999 SCC (Cri) 401. Moreover, merely because an act has a civil profile that does not denude it of its criminal outfit unless the allegations fall short in making out a criminal case. No criminal prosecution can be thwarted at the initial stage merely because civil proceeding are also pending over the self-same allegations and at the same time there is no bar to the simultaneous continuation of a criminal proceeding even when both arises out of the same transaction, unless element of criminality is absent. In this connection reliance may be placed in the case of State of Punjab vs. Pritam Chand and Ors., reported in 2009(1) Crimes 370 (SC); Kamala Devi Agarwal vs. State of West Bengal and Ors., reported in 2002 SCC (Cri) 200; Shree Krishna Agency vs. State of Andhra Pradesh and Anr., reported in 2009(1) SCC (Cri) 241; Usha Ahooja vs. State of Haryana and Ors., reported in 1999 SCC (Cri) 1283; Rashida Kamaluddin Sayed and Anr. vs. Sk. Saheb Lai Madan through LRS and Anr., reported in 2007(2) SCC (Cri) 63. 6. IN the case of Sharon Michael and Ors. vs. State of Tamil Nadu and Anr. (supra), the Apex Court held even though the buyer rightly or wrongly refused to accept the goods, on the premise that the same were defective and sub- standard and even assuming the accused company was assured payment for such supplies, it would be a del credere agent. Its liability is, therefore, a civil liability. But in the present case the fact is altogether different. Its liability is, therefore, a civil liability. But in the present case the fact is altogether different. The accused persons after obtaining delivery against a post-dated cheque made no payment on a pretext that a portion of the goods which was supplied to them by the complainant company and in turn supplied to the railways were returned as sub-standard but on the face of the letter issued by the Railways, contained in the case diary, it appears the goods were upto the mark and have been fully utilized, thus the claim of the accuseds appears to be false. IN the other case relied upon by Mr. Ghosh in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Anr. (supra), the Apex Court held the dispute between the parties were essentially a civil dispute and non-payment or under payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. The ratio of the aforesaid decisions can very well be applied to those cases where on the face of the allegations contained in the FIR as well as from the materials collected during investigation no offence is made out, but not where, as in the present case not only the allegations in the FIR, as also the evidentiary materials gathered by the police during investigation clearly discloses commission of cognizable offences, more particularly when the stand taken by the accused that the goods supplied to him by the complainant were rejected by a third party, here the Railway Authority, to whom the same were supplied by the accused, appears to be false. Thus, in my opinion, there is hardly any chance to hold that this is a case of mere breach of contract. Top of everything the investigation is at a very nascent stage, and the facts are very hazy, thus, it would not be at all appropriate to scuttle the investigation at this stage by quashing the impugned First Information Report. This criminal revision has no merit and accordingly stands dismissed. 7. CRIMINAL Section is directed to deliver urgent photostat certified copy of this Judgement to the parties, if applied for, as early as possible. Appeal dismissed.