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2011 DIGILAW 62 (CAL)

Sekh Abdul Sobur v. STATE OF WEST BENGAL

2011-01-17

ASHIM KUMAR BANERJEE

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JUDGMENT ASHIM KUMAR BANERJEE. J. 1. M.M.T.C. Ltd. is a Government of India undertaking having its office inter alia at Ruby House, India Exchange Place, Calcutta. The petitioner Abdul Sobur was the proprietor of M/s. Narayanpur Agri and Agricultural Development Project having its office at Burdwan. M.M.T.C. entered into an agreement for handling agency with the petitioner on June 26, 1996. On perusal of the agreement it appears that M.M.T.C. was in need of a storage space in Burdwan from where they could distribute fertilizer to the farmers. Under the agreement petitioner was to provide storage space where M.M.T.C. would keep the fertilizer under care of the petitioner. Petitioner would act as handling agent and would deliver fertilizer from their godown to the customers of M.M.T.C. as per the delivery orders issued by M.M.T.C. In turn, petitioner would get commission as per the agreement. There were other terms and conditions that the parties were to fulfil under the agreement. M.M.T.C. alleges that the petitioners failed to furnish stock statement as required under the agreement and thereby misappropriated fertilizer provided by M.M.T.C. to the petitioner for the purpose of keeping the same in trust and, in turn, deliver the same to the customers of M.M.T.C. M.M.T.C. lodged a complaint with the Police under Section 406, 409, 420 of the Indian Penal Code. The Police took cognizance and initiated proceeding as against the petitioner. The complaint was lodged on November 21, 1997. The charge sheet was submitted on January 24, 1999. The charges were ultimately framed by the learned Magistrate and trial commenced. At that stage, petitioner approached the learned Judge for his discharge by making an application. The learned Judge vide order dated May 18, 2010 rejected the said application filed on December 15, 2008 by observing that there were sufficient materials against the accused persons for presuming that he had committed an offence punishable under Section 409 read with Section 34 of the Indian Penal Code. Alternatively, they might be charged under Section 406/420 thereof as framed against them. The learned Judge of the special Court fixed dates of the trial, accordingly trial commenced. Being aggrieved by the said order dated May 18, 2010 the petitioner approached this Court inter alia praying for quashing of the said order dated May 18, 2010 as also the said proceeding. 2. MR. The learned Judge of the special Court fixed dates of the trial, accordingly trial commenced. Being aggrieved by the said order dated May 18, 2010 the petitioner approached this Court inter alia praying for quashing of the said order dated May 18, 2010 as also the said proceeding. 2. MR. Sandip Ghosal, learned Counsel appearing for the petitioner contended as follows :- i) The dispute was civil in nature. The M.M.T.C. limited already initiated civil proceedings for appropriate relief. Hence, on the self-same cause of action criminal proceeding was not maintainable. ii) The charge sheet would itself show that the alleged incident did not constitute an offence being committed by the petitioner. iii) Substantial payments were made from time to time and last of such payment was made in 2010. Hence, M.M.T.C. was not entitled to proceed with the criminal case simultaneously. Elaborating his submission Mr. Ghosal relied on a copy of the interlocutory application filed in this Court in its Original Side. On perusal of this said application it appears that a civil suit making money claim for rupees fortysix lacs twenty three thousand approximately was filed by M.M.T.C. as against the petitioner on account of outstanding dues. In the said petition M.M.T.C. claimed that petitioner was their dealer in respect of fertilizer and the said sum was due and payable as outstanding on account of unpaid price of the fertilizer. 3. MR. Ghosal further contended that since M.M.T.C. chose to proceed before the civil forum on the identical cause of action criminal proceeding was not maintainable. He also relied on correspondence exchanged between the parties that would show that substantial payments were made from time to time as referred to above. 4. OPPOSING the application Mr. Sib Shankar Banerjee, learned counsel appearing for M.M.T.C. contended as follows :- i) Against a single transaction there might be civil as well as criminal liability. Hence, initiation of civil action would not create any bar in proceeding against the petitioner before the criminal Court. ii) The FIR was lodged in 1997. The petitioner did not raise any objection at that stage. It was only when the trial was about to commence the petitioner approached this Court and the learned Judge was right in rejecting such application. ii) The FIR was lodged in 1997. The petitioner did not raise any objection at that stage. It was only when the trial was about to commence the petitioner approached this Court and the learned Judge was right in rejecting such application. iii) Alleged part payments relied on by the petitioner were on account of proceedings initiated under Section 138 of the Negotiable Instrument Act pending before the criminal Court as would appear from the petitioner’s letter dated August 27, 2010. iv) The civil proceeding referred to above, was for a different transaction. Hence, no reliance could be placed thereupon. v) The instant cause of action arose from a breach committed under the agreement dated June 27, 1996 which constituted both civil and criminal liability and M.M.T.C. was entitled to adopt both the courses. vi) Entrustment of fertilizer under the said agreement would amount to bailment of goods and petitioner was a bailee. Misappropriation of such goods would amount to criminal breach of trust attracting Section 406 and Section 409 in view of the goods being belonged to M.M.T.C, a Government undertaking. Elaborating his argument Mr. Banerjee relied on a bunch of documents filed in Court with copy served upon Mr. Ghosal. The said bunch be treated as a part of the record. It appears that an arbitration proceeding was initiated in respect of the civil liability. An award was passed for rupees fifty-eight lacs seventy four thousand one hundred and fifty seven. He also contended that initiation of the said arbitration proceeding which culminated in an award could not absolve the criminal liability of the petitioner for which the criminal proceeding was initiated. 5. ELABORATING his argument Mr. Banerjee relied on the following decisions :- i) All India Reporter 1979 Supreme Court Page-94 (Ratilal Bhanji Mithani -VS- State of Maharashtra) ii) 1992 Supplementary Volume-I Supreme Court Cases Page-335 (State of Haryana and Others -VS- Bhajan Lal and Others) iii) All India Reporter 2004 Supreme Court Page-38 (Regu Mahesh alias Regu Maheswar Rao –VS-Rajendra Pratap Bhanj and Another) iv) Bharat Parish -VS- Central Investigation of Bureau and Another on 14 July 2008 6. WHILE giving reply to what was argued by Mr. Banerjee, Mr. Ghosal contended that the dispute was purely civil in nature. The respondent already encashed the bank guarantee for rupees ten lacs. The petitioner paid a sum of rupees fifty lacs. WHILE giving reply to what was argued by Mr. Banerjee, Mr. Ghosal contended that the dispute was purely civil in nature. The respondent already encashed the bank guarantee for rupees ten lacs. The petitioner paid a sum of rupees fifty lacs. The respondents would be at liberty to adjust the said sum of rupees sixty lacs against the total outstanding in respect of all claims and the shortfall might be paid by instalments, for that criminal proceeding was not maintainable. He further contended that the sum of rupees fifty lacs had not been adjusted as yet despite the letter dated August 27, 2010 relied on by the respondents and produced through the bunch of documents. Mr. Ghosal further contended that the subject matter of the present case emanated from the agreement which was also made the basis of the arbitration being a civil forum. Hence, the criminal proceeding was liable to be stayed. Mr. Ghosal relied on the following decisions to support his contentions :- i) 1991 Supreme Court Cases (Criminal) Page-1055 (Bal Kishan Das -VS- P.C. Nayar) ii) 1996 Supreme Court Cases (Criminal) Page-1104 (Satish Mehra -VS- Delhi Administration and Another) iii) 2005 Supreme Court Cases (Criminal) Page-415 (State of Orissa -VS- Debendra Nath Padhi) iv) 2005 Supreme Court Cases (Criminal) Page-1515 (Hotline Teletubes and Components Ltd. and Others -VS- State of Bihar and Another) v) 2009 Volume-I Supreme Court Cases (Criminal) Page-721 (Rukmini Narvekar -VS- Vijaya Satardekar and Others) vi) 2009 Volume-I Supreme Court Cases (Criminal) Page-996 (V.Y. Jose and Another -VS- State of Gujarat and Another) vii) 2010 Volume-II Supreme Court Cases (Criminal) Page-223 (Dalip Kaur and Others -VS- Jagnar Singh and Another) Mr. Banerjee distinguished the cases cited by Mr. Ghosal while giving reply. According to him, the cases cited by Mr. Ghosal were not on Section 409 involving defalcation of Government property. Hence, the proposition of law decided therein would have no application. The decision in the case of Hotline Teletubes (Supra) related to non payment of price of goods sold and delivered and as such would have no application in the present case. He also contended that decision in the case of State of Orissa -VS- Debendra Nath Padhi (Supra) was overruled by the subsequent decision in the case of Bharat Parikh (Supra). Mr. Banerjee prayed for dismissal of the revisional application. 7. I have considered the rival contentions. He also contended that decision in the case of State of Orissa -VS- Debendra Nath Padhi (Supra) was overruled by the subsequent decision in the case of Bharat Parikh (Supra). Mr. Banerjee prayed for dismissal of the revisional application. 7. I have considered the rival contentions. The scope of Section 482 was limited. If we look to the latest decision cited by Mr. Banerjee in the case of Bharat Parish (Supra) we would find that the Apex Court was of the opinion that after the stage of framing of charge evidence was to be laid on behalf of the prosecution to prove the charge. Hence the Court should be given an opportunity to proceed with the trial to find out whether the charges could be proved by the prosecution or not. The Apex Court relied on the decision in the case of Bhajan Lal (Supra) and observed that a criminal proceeding could only be quashed in an exceptional circumstance and that too, to secure ends of justice. In the instant case, the complaint was lodged in 1997. In 1998 M.M.T.C. filed the civil suit making money claim before the High Court. It is not clear from the petition filed before the High Court in the money suit whether the said suit was arising out of the same transaction. M.M.T.C. also did not refer to the agreement dated June 27, 1996 in the said petition. The subsequent arbitration proceeding was however initiated for the alleged breach committed under the said agreement dated June 26, 1996. The arbitration proceeding was initiated in terms of order of this Court dated January 4, 1999. It also appears from the award that the order referring the dispute to the arbitration was by consent of parties. If it was so, the petitioner could have approached the Court for quashing of the criminal proceeding at that stage. He did not do so. I feel that the petitioner missed the bus. The FIR was lodged in 1997. Charge-sheet was submitted on January 24, 1999 whereas the order directing arbitration to be commenced was passed on January 4, 1999. The petitioner ought to have come and approached the Court for quashing contemporaneously. He waited till 2008 or 2010 when the Court below directed trial to commence. 8. The FIR was lodged in 1997. Charge-sheet was submitted on January 24, 1999 whereas the order directing arbitration to be commenced was passed on January 4, 1999. The petitioner ought to have come and approached the Court for quashing contemporaneously. He waited till 2008 or 2010 when the Court below directed trial to commence. 8. SUBSEQUENT payments made by the petitioner was in relation to the cases initiated under Section 138 of the Negotiable Instrument Act as would appear from the petitioner’s own letter dated August 27, 2010. It further appears that the petitioner tried to have the dispute resolved once for all by referring the same to Dispute Settlement Committee in 2002/03. The dispute could not be resolved. From the facts narrated above, it is not clear whether the parties had one single series of transaction for which payments could be adjusted or it was arising out of different transactions for which distinctive civil liabilities occurred. Mr. Ghosal contended that the charge-sheet did not disclose any offence as defalcation of stock as alleged by M.M.T.C. in absence of stock statement, was belied by the charge sheet wherefrom it would appear that the prosecution itself relied on the stock statements given from time to time and seized by the Police. In our view, such issue could have been considered had petitioner come up for quashing contemporaneously. The belated prayer for quashing did not deserve any consideration. The special Court was right in rejecting the prayer for discharge after observing that there were sufficient materials. This Court in an application under Section 482, should not upset such view of the Court below in a grossly belated proceeding. It is true that the facts are so complex it is difficult to say conclusively whether the criminal proceeding was maintainable. However, such venture is not necessary, as it does not deserve consideration in view of belated approach. 9. MR. Banerjee prayed for direction for filing affidavit so that he could bring on record the documents filed before this Court referred to above. In my view, in a criminal revisional application affidavit is not a must. I already permitted documents to come on record. MR. Ghosal did not object to the same. Hence, filing of affidavit would be a mere formality, so I did not grant such prayer. The application fails and is hereby dismissed. 10. In my view, in a criminal revisional application affidavit is not a must. I already permitted documents to come on record. MR. Ghosal did not object to the same. Hence, filing of affidavit would be a mere formality, so I did not grant such prayer. The application fails and is hereby dismissed. 10. THE order of dismissal would however not preclude the petitioner to contend before the Special Court that the proceeding was not maintainable and the Court below would be at liberty to take a final decision upon considering the evidence so to come out in trial. Urgent xerox certified copy will be given to the parties, if applied for.