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2009 DIGILAW 882 (CAL)

Dhirendra Nath Maity v. Gourav Himatsingka

2009-12-07

P.S.DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1.) The opposite party herein lodged a petition of complaint with the learned Chief Metropolitan Magistrate alleging offences under Sections 406/ 411/467/120B of the Indian Penal Code on the following facts:-The opposite partys father Dipak Kumar Himatsingka and mother Smt. Rohini Himatsingka would reside in Mumbai. Accused No. 1 Rakesh Himatsingka is the uncle of the complainant, while accused No.2 is an employee of the accused No. 1 who has been carrying on business at Premises No.6 Old Post Office Street, Kolkata-700 001. Accused No. 3 is the wife of the accused No.1 and accused Nos. 4 and 5 are daughters of accused No.1. The complainants parents held 5 shares of M/s Shree Co-operative Housing Society Limited of 52/2 Ballygunge Circular Road, Calcutta-19. They were allotted nearly 50 per cent of the total land measuring about 26 cottahs at 13, Gurusaday Road, Calcutta-19, the market value of which would be about Rs. 3.50 crores. By an unregistered general power of attorney dated 8th August, 1994 the parents of the complainant nominated the complainants grandfather B.P. Himatsingka, since deceased, as their constituted, attorney since they were residing in Mumbai and were unable to look after their affairs in Calcutta. The grandfather of the complainant was suffering from various ailments and left for abroad. The grandfather of the complainant and the complainants parents executed a deed of revocation of the power of attorney whereby power of attorney was revoked on 29th May, 1996. Such revocation was to the knowledge of accused Nos.1 and 3. Dispute arose after the death of the grandfather of the complainant between the complainants parents and the accused Nos. 1 and 3 who are the uncle and aunt of the de facto complainant. The complainants parents requested the accused Nos. 1 and 3 to hand over all the original share certificates of the society but they avoided on flimsy pretext from time to time. After the death of the complainants grandfather the original share certificates and other documents came to be in the custody of the accused No.1 and 3. The complainants parents requested the accused Nos. 1 and 3 to hand over all the original share certificates of the society but they avoided on flimsy pretext from time to time. After the death of the complainants grandfather the original share certificates and other documents came to be in the custody of the accused No.1 and 3. The accused No.1 with intention to deprive the complainants parents of their valuable securities started removing all the certificates documents, papers belonging to the complainant, his parents and brother from the depository in the third floor at 6, Old Post Office Street, Calcutta-1 Accused No.1 in collusion with the accused No. 2, said to be an employee of the accused No.1, took control of the documents. This was noticed by the complainant who was in Calcutta on 19th September, 1997. The complainant immediately lodged a complaint with the Hare Street P.S. It was also brought to the knowledge of the complainants father by the complainant, and the complainants parents by letter dated 4.10.1997 and 9.10.1997 informed the Co-operative society that the shares held in their names were misplaced and requested the Society not to transfer the shares in case the same was moved without prior intimation to them, but all on a sudden the society by letter dated 30.12.1997 informed the complainant that the shares had been transferred in the name of the minor son of the accused No. 1 and 3 and in the name of the HUF of the accused 1 that consisted of accused Nos.1, 3, 4 and 5 and the minor son of the accused No.1 and (2.) The said society is functioning from the residence of the solicitor of the accused No.1. The fraudulent transfer was made sometime in November, 1996 on the basis of a deed purportedly signed by late B.P. Himatsingka as constituted attorney on 22.11.1996, that is much after the revocation of the said power of attorney. (3.) The present application has been filed by the accused No.2 who is said to be the employee of the accused Nos. The fraudulent transfer was made sometime in November, 1996 on the basis of a deed purportedly signed by late B.P. Himatsingka as constituted attorney on 22.11.1996, that is much after the revocation of the said power of attorney. (3.) The present application has been filed by the accused No.2 who is said to be the employee of the accused Nos. 1 and 3 and the ground for quashing of the proceeding against the present petitioner is that there is no material whatsoever against the petitioner to connect him with the charges framed; no offences punishable under Sections 120B read with Sections 406/468/471 of the IPC has been made out against the petitioner, that the evidence on record does not give rise to any suspicion against the petitioner of his entering into conspiracy with the accused Nos.1 and 3 that in the FIR lodged by the complainant with the Hare Street P.S. on 19.9.1997 he was not named, but he was named in the present complaint that evidence of Gourav Himatsingka PW5 and Dipak Kr. Himatsingka PW6 did not show that the petitioner had committed any covert or overt act, far less commission of forgery or removal of shares and documents that might constitute offences as alleged, that the petitioner not being a member of the family there was no question of him being part of any conspiracy to misappropriate the shares of the parents of the complainant that the alleged story of removal of the shares on September , 19,1997 has not been told by the complainant in the complaint as the shares had already been transferred in 1996 itself, that the materials on record even if remaining unrebutted were not such as would warrant conviction and accordingly the proceedings should be quashed so far as the petitioner is concerned. (4.) Learned Metropolitan Magistrate, 11th Court, Calcutta, recorded evidence of eleven witnesses before charge and on the basis of the materials he framed charges against the accused persons under Section 406 IPC. Originally there were five accused persons of whom Sonal Himatsingka and Mallika Himatsingka who are the daughters of the accused Nos.1 and 3 moved revisional application before this Court praying for quashing of the proceeding as against them and this Court in CRR No.1135 of 2007 and CRR No. 3043 of 2007 quashed the proceeding as against the daughters of the accused Nos. 1 and 3 by order dated 16th September, 2008. According to the petitioner the reasons for which the two daughters of the accused Nos. 1 and 3 were let off are equally applicable to the present petitioner, an employee of the accused No.l. (5.) This was the ground taken along with other grounds before the learned Magistrate by the petitioner in his petition dated 4th March, 2009 whereby he prayed for his discharge. The learned, Magistrate by the order dated 24th March, 2009 observed that charges have been framed there is no scope for discharge amidst the trial, more particularly when the learned Magistrate is vested with no inherent power to do so, accordingly the petition was rejected. (6.) After the petition was rejected by the learned Magistrate the present application has been filed by the petitioner-accused No. 2 praying for discharge challenging the order of the learned Magistrate dated 24th March, 2009. (7.) Mr. Sudipto Moitra, learned advocate appearing for the petitioner submitted that so far as the petitioner is concerned he had no monetary interest in the transaction nor was he a beneficiary; he was merely an employee of the accused No.1. When the de facto complainant first lodged a complaint with the Officer-in-Charge of Hare Street P.S. on September 19, 1997 alleging that the Rakesh Himatsingka and others were dishonestly misappropriating or converting to their own use the valuable securities, shares or documents belonging to his grandfather B. P. Himatsingka the name of the petitioner was not there in that complaint. Thus, it is submitted that with ulterior motive in the petition of complaint before the learned C. M.M. the name of the petitioner has been incorporated in order to malign him wrongfully. Secondly, the transfer of shares by B.P. Himatsingka on 26.12.1996 was to the knowledge of the complainant and also his parents which is why in the first complaint with the O.C., Hare Street P.S. lodged on September 19, 1997 the factum of transfer of shares has been withheld. It is submitted that accused No. 2s being a mere witness to the deed of transfer purportedly executed by B.P. Himatsingka does not ipso facto prove that the petitioner No.2 conspired with the other accused persons. Furthermore, allegation of removal of documents from the depository at 6 Old Post Office Street does not constitute offences. It is submitted that accused No. 2s being a mere witness to the deed of transfer purportedly executed by B.P. Himatsingka does not ipso facto prove that the petitioner No.2 conspired with the other accused persons. Furthermore, allegation of removal of documents from the depository at 6 Old Post Office Street does not constitute offences. Thus, it is submitted there is no ingredient of Section 120B IPC against the petitioner and no meeting of minds in which the petitioner can be said to be a participant. Mere suspicion cannot take the place of proof and no conspiracy can be inferred on the strength of the fact that the petitioner signed a deed of transfer as a witness. Mr. Moitra referred to certain decisions in Debabrata Bandopadhyay and Ors. v. The State of West Bengal and anr., AIR 1969 SC 189 . Lennart Schussler and anr. v. The Director of Enforcement and anr., 1970 SCC (Cri) 73. Union of India and anr. v. Prafulla Kumar Samal and anr., 1979SCC (Cri) 609. State Bank of Maharastra v. Jitendra Bhimraj Bijjaya and Anr., AIR 1990 SC 1962 . J. Th. Zwart and Ors. v. Indrani Mukherjee, 1990 CHN (1) 62 K.T.M.S. Mohd. v. Union of India, 1992 (3) SCC 179. Pepsi Foods Ltd. v. Special Jurisdiction Magistrate and Ors., 1998 (5) SCC 749 State of H.P. v. Jailal and Ors.;. 1999 SCC.(Cri) 1184. Dilwar Balu Kurane v. State of Maharashtra, 2002 (2) SCC 135 . Pradip Kumar v. State of Bihar, (2007) 3 SCC (Cri) 402. and Soma Chakraborty v. State through C.B.I., (2007) 5 SCC 403 . (8.) These decisions require to be studied. In Debabrata Bandopadhyay (Supra) it has been held that for a conspiracy to be hatched there must be some foundation of gain or purpose. The conspirators would at least know that there was nothing to be gained by disobeying the orders since the money was already paid out. It is found that the case is on the fact that there was an order of the Sessions Judge directing the District Magistrate to deliver the sale proceeds to the accused on the accuseds furnishing bond to be covered by the sale proceeds to the satisfaction of the District Magistrate, but listed of the District Magistrate the bonds were accepted by the Additional District Magistrate. It was a contempt proceeding before the High Court and the matter came to the Supreme Court in appeal preferred by one of the contempnors. The learned Sessions Judges order of December 23,1963 was stayed by the High Court on January 13, 1964 Payment of money was made under the order of the Sessions Judge and the stay order dated January 13, 1964 was communicated by the Sessions Judge to the District Magistrate on 16th January, 1964. High Court held the officers responsible for payment, guilty of contempt on the ground that payment was made as a result of well thought out scheme and conspiracy, In that context the Honble Supreme Court said that the said orders were ineffective since there was nothing to stay and the officers cannot be said to have been actuated by a motive to frustrate the said orders. This decision which is fact oriented does not help the petitioner. With regard to the element of conspiracy the other decision is Lennart Schussler (supra). Now this decision is against certain facts and it was found that the appellant was an accessory, not a conspirator. It was held that if a person agreed with a robber to receive the stolen property and arranged for its safe keeping he does not become a conspirator with the robber in the commission of the offence of robbery. The allegation against the appellant is that he provided facility for its retention in Sweden. This decision is not helpful to the petitioner. The decision in Hiralal Jain (Supra) reveals that there was no oral evidence to speak of conspiracy. The documentary evidence revealed that the appellant made application on behalf of the other accused that he filed their vokalatnama and identified them as the real claimant and it cannot be said that the appellant did anything beyond what a lawyer is authorised to do. Now a lawyer accepts vokalatnama on being satisfied of its execution by a litigant who executes such vokalatnama in favour of the lawyer. Normally a lawyer may not know whether the litigant executing vokalatnama was the rightful claimant. In the instant case the petitioner does not plead that he did not know B.P. Himatsingka. Now a lawyer accepts vokalatnama on being satisfied of its execution by a litigant who executes such vokalatnama in favour of the lawyer. Normally a lawyer may not know whether the litigant executing vokalatnama was the rightful claimant. In the instant case the petitioner does not plead that he did not know B.P. Himatsingka. Identity of B.P. Himatsingka was allegedly not unknown to the petitioner and he became a witness to the deed of transfer allegedly executed by B.P. Himatsingka who allegedly was not in Calcutta on the date of its execution in the city. Therefore, this decision is purely inapplicable. In Union of India and another (supra) it was held that unless there was meeting of minds no conspiracy can be deciphered. In the case of Niranjan Singh (supra) which is a case under TADA it was held that at the stage of framing charge the Court may for limited purpose sift evidence. It will be seen presently as to what evidence has been adduced in order to ascertain whether prosecution should be nipped in the bud amidst the trial or allowed to be continued with to its logical destination. The decision in J. Th. Zwart. and Ors. (supra) which dealt with conspiracy does not appear to be applicable to the facts of the case because it was held that the incorporation or inclusion of a false statement in a document could not ipso facto make the document to be false, for a document to be false it has to tell a lie about itself. In the instant case admittedly the petitioner is a witness to the execution of a document purportedly executed by a person who was not allegedly present in Calcutta on the date of its execution. In K.T.M.S. Mohd. (supra) the Supreme Court dealt with allegation of false statement punishable under Section 1.93 IPC and the statement was recorded under Section 13 of the FERA. This decision has no manner of application in this case. In State of Himachal Pradesh (supra) it was held that allegation that quantity of scabbed apple stated to have been purchased from the accused could not have been produced in their orchards sought to be established by an expert could not be substantiated because evidence was found incredible and it was held that an expert is one who has made the subject upon which he speaks a matter of particular study. It is an appeal against an order of acquittal and the facts did not appear to have any manner of application. Mr. Moitra referred to Pepsi Foods Ltd. to submit that the power of the High Court is there to discharge an accused at the stage of framing of charge. This decision reiterates the principle of law of which I am not unmindful. The decision in Dilwar Balu (supra) followed the principle laid down in Union of India v. Prafulla Kr. Samal and held that the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out. and where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing charge and proceeding with the trial. In Pradip Kumar (supra) State of Bihar (supra) High Court dismissed an application under Section 227 of the Constitution of India in a summary manner and the High Court was asked for fresh consideration. In Soma Chakraborty (supra) it was held the strong suspicion can be the basis of framing of charge but Court must say that there exists some materials therefor. (9.) The opposite party submitted a written notes of argument containing statements in brief of the witnesses so far examined and referred to the decisions in Ratilal Bhanji Mithani v. State of Gujarat and Ors., AIR 1979 SC 94 Bharat Purikh v. C.B.I., (2008) 10 SCC 109 Sanghi Brothers (Indore) Pvt. Ltd., v. Sanjoy Chowdhury and ors., (2008) 10 SCC 681 . Hemchand v. State of Jharkhand, (2008) 5 SCC 113 . State of Maharashtra and Ors. v. Somnath Thapa and ors., 1996 SCC (Cri) 820. Mohant Abhey Dass v. S. Gurdial Singh and Ors., AIR 1971 SC 834 . State of Delhi v. Gyan Devi and ors., 2000 SCC (Cri) 1486. and State v. S. Bangarappa, 2001 SCC (Cri) 152. (10.) Complainants parents executed a power of attorney in respect of five shares of a co-operative society in favour of the complainants grandfather on 8.8.1994 which was revoked through a deed on 29.5.1996. It was allegedly to the knowledge of the accused persons. The grandfather B.P. Himatsingka died on 9.4.1997 while the deed of transfer was purportedly executed by B.P. Himatsingka on 22.11.1996. It was allegedly to the knowledge of the accused persons. The grandfather B.P. Himatsingka died on 9.4.1997 while the deed of transfer was purportedly executed by B.P. Himatsingka on 22.11.1996. Allegations run that the accused No.1 with intention to deprive the complainants parents started removing all certificates, documents papers from the depository created in safe custody by the accused No.1 in collusion with accused No. 2. Whether the allegation is true or false is a different matter, but in the petition of complaint there is clear averment of collusion of the accused No.2 with the accused No.1 in the manner of removal of certificates, documents, papers etc. Mr. Moitras argument is that mere removal of the documents is not enough but the complaint has to be read as a whole the sum and substance of the complaint is that when B.P. Himatsingka was in Bombay the accused persons 1, 2, and 3 started removing the documents from the depository and prior thereto, exactly on 22.11.1996 the accused persons got a deed of transfer executed showing B.P. Himatsingka to be an executor when he was not in Calcutta, At paragraph 12 of the petition of complaint it has been stated that the signature in the deed of transfer is forged inasmuch as B.P. Himatsingka was not in Calcutta on the date of execution of the alleged deed and the witness to the execution of the deed of transfer allegedly made B.P. Himatsingka was no other than the accused No.2 himself. Now, PW1 is one Kamal Chowdhury who was a formal witness. PW2 Shri P.V. Narayan of Indian Airlines said that he issued a letter on 8.10.1998 addressed to Mr. Dipak Himatsingka in his official capacity certifying that Mr. B.P. Himatsingka and another travelled from Calcutta to Bombay by Indian Airlines on 22.11.1996. PW4 I.C. Maheshwari who gave evidence on behalf of the co-operative society produced a letter dated 4.10.1997 addressed to the society by R. Himatsing regarding loss of share certificates. He also produced another letter dated 22.11.1997. He said that he sent the original share certificates to accused No. 1. who acknowledged the same. PW5 Gourav Himatsingka said in his evidence that his grandfather was suffering from ailments hence his parents revoked the power of attorney by two separate deeds of revocation on 29.11.1.996. He also produced another letter dated 22.11.1997. He said that he sent the original share certificates to accused No. 1. who acknowledged the same. PW5 Gourav Himatsingka said in his evidence that his grandfather was suffering from ailments hence his parents revoked the power of attorney by two separate deeds of revocation on 29.11.1.996. His grandfather died on 9.4.1997 and after his demise certain disputes arose between his parents and the accused Nos. 1 and 3. His parents requested accused Nos. 1 and 3 to hand over the original five share certificates which they refused and by taking control of the documents from the common depository the accused Nos. 1 and 3 forwarded some false excuses. On 19.9.1997 the accused Nos.1, 2 and 3 started removing various share certificates from such common depository and he was present at the time and wanted to stop such transfer but he was unable to do so. He immediately filed complaint with Hare Street P.S. and informed the society that the share certificates were misplaced and requested them not to transfer the share certificates but the society informed his parents that shares had been transferred in the name of the minor son of Rakesh and others on the basis of a deed of transfer executed by B.P. Himatsingka. Signature of his grandfather was forged and accused No.2 who is the petitioner could not be a witness to the execution of such transfer deed by B.P. Himatsingka on that day when he was not in Calcutta; further, no consideration for transfer was paid by the accused persons. (11.) PW5 stated that his uncle and aunt never handed over the share certificates and on 19.4.1997 the accused Nos. 2 and 3 and others started removing various securities including share certificates papers and documents from the depository situated in the 3rd floor, Temple Chambers, 6 Old Post Office Street, Calcutta which accused No.1 and 3 took control of wrongfully after the death of his grandfather. He stated that his grandfather was not present in Calcutta on 22.11.1996 which is the alleged deed of execution of transfer deed. The accused No.2 who is the petitioner herein could not have witnessed the execution of the said deed on the same date in Calcutta. PW6 implicated the accused No.2 in the matter of removal of valuable securities, papers share certificates from the depository, along with other accused persons. The accused No.2 who is the petitioner herein could not have witnessed the execution of the said deed on the same date in Calcutta. PW6 implicated the accused No.2 in the matter of removal of valuable securities, papers share certificates from the depository, along with other accused persons. The petitioner signed the deed as a witness to testify the execution of the deed by B.P. Himatsingka which is said to have been found forged by the handwriting expert. It has been submitted through the written note of arguments that a witness to the execution of a document does not become a witness to the genuineness of the contents of the document but becomes a witness of the execution meaning thereby the witness is satisfied of the identity of the person whose execution he was attesting to. Further, it has been contended in the written note of argument that after the learned Magistrate framed charges against the petitioner along with others the petitioner did not assail the order of framing of charge; only when Sonal Himatsingka and Mallika Himatsingka prayed for quashing of the charges as against them only and when this Court allowed their applications the present petitioner chose to assail the order of framing of charge as against him and to prefer quashing of a proceeding PW5 and 6 have implicated the petitioner. However, the argument of Mr. Moitra was that, that in the earlier complaint filed before the O.C., Hare Street P.S. on 19.9.1997 the name of the petitioner was not mentioned but in that complaint there was mention of agents and employees of Rakesh Himatsingka and Anita Himatsingka. (12.) In Ratilal Bhanji (Supra) the Honble Supreme Court held that once charge is framed the Magistrate cannot cancel it and discharge the accused. Of course, this application has been filed for quashing of the proceeding but when charge was already framed and recording of evidence of the witnesses has already started it is not proper to quash the proceedings. Bharat Parikh (supra) followed Ratilal Bhanji and held the same view. In Sanghi Brothers (supra) it was held that when charges were framed it Was not necessary for the High Court to form opinion about the prospect of conviction and the High Courts interference under Section 482 of the Cr.P.C. that charges were not sustainable was not warranted. Bharat Parikh (supra) followed Ratilal Bhanji and held the same view. In Sanghi Brothers (supra) it was held that when charges were framed it Was not necessary for the High Court to form opinion about the prospect of conviction and the High Courts interference under Section 482 of the Cr.P.C. that charges were not sustainable was not warranted. In Hemchand (supra) it was held that at this stage of framing of charge weighing the evidence is not necessary. In Mohant Abbey Das (supra) it was held that when on allegation made against an accused prima facie case is made out they should not be discharged. The decision in State of Delhi (supra) is important because in that case charges were framed and a few witnesses had already been examined and then the High Court interfered to evaluate the material evidence, which was deprecated. Thus, what has been deprecated is as follows:- a) There must not be a roving enquiry to ascertain whether the evidence adduced by the prosecution would ultimately lead to conviction or not; b) Charge can be framed when there is ground for presuming that the accused has committed offence; c) Provision of Section 482 Cr.P.C. should not be invoked for quashing a charge unless there are strong reasons to hold so in the interest of justice and to avoid the abuse of the process of the Court; d) Evidence should not be evaluated to decide the credibility of a witness. (13.) Thus so far as the petitioner is concerned, there is clear allegation in examination in chief that in collusion with the accused No.1 and 3 he joined them in removing all documents and shares from the common depository after the accused Nos. 1 and 3 managed to gain control of the said common depository and that he signed a deed of transfer as a witness allegedly executed by B.P. Himatsingka who was not in Calcutta on that day. In such scenario, it is difficult to hold for this Court that no prima facie case has been existing for framing of charge so far as the petitioner is concerned. Whether he was a beneficiary or not could be a matter between the accused No. 1 and the petitioner, but the allegation is that a person who was not in Calcutta was alleged to have executed a deed of transfer. Whether he was a beneficiary or not could be a matter between the accused No. 1 and the petitioner, but the allegation is that a person who was not in Calcutta was alleged to have executed a deed of transfer. It appears that all the decisions cited by Mr. Moitra were rendered in appeal by the Honble Supreme Court and they were derived in consideration of the facts and circumstances of each particular case. No two cases can be identical it is not deniable that the Court is powerless to sift evidence for the purpose of finding out whether charge can be framed or not. It is not in dispute that the Court at any point of time may make an order of discharge but it is only when the Court would find that no case has been made out. The learned Magistrate has completed recording of evidence of the witnesses before charge. He has framed charges and I am told by learned advocate for the opposite parties that certain witnesses also have been cross-examined after charge. If this is so, it is not proper for this Court to make an order of discharge by quashing the proceeding on the ground that the petition of complaint and the evidence before charge are not sufficient enough to indicate a prima facie case so as to warrant framing charge. It is the settled position of law that the power under Section 482 Cr.P.C. can be invoked only in rare instances where continuation of a criminal proceeding would be an abuse of the process of law or when the petition of complaint/FIR does not disclose any offence either, or when the complaint or the FIR is the product of mala fide. Certain concrete allegations of fact have been levelled against the petitioner in the petition of complaint and PW5 has given evidence before charge concerning the allegations of fact against the petitioner and others. Whether the said allegations of fact are true or not cannot be decided at this stage. It is not possible for the Court to say what evidence would transpire in cross examination. It is not permissible for this Court to say at this moment that continuation of trial could be an abuse of the process of the Court. (14.) Considered as such, the application is dismissed. It is not possible for the Court to say what evidence would transpire in cross examination. It is not permissible for this Court to say at this moment that continuation of trial could be an abuse of the process of the Court. (14.) Considered as such, the application is dismissed. Urgent Xerox certified copy, if applied for, be given to the parties as expeditiously possible. Petition dismissed.