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2012 DIGILAW 589 (CAL)

Laltu @ Dipak Mukherjee v. State

2012-07-06

DIPAK SAHA RAY

body2012
JUDGMENT: DIPAK SAHA RAY, J. 1. THE present case arises out of an application under Section 482 of the Code of Criminal Procedure 1973 for quashing the criminal proceeding of Nandakumar P.S. Case No. 131 of 2006 dated 17.12.2006 corresponding to G.R. case No. 853 of 2006 under Sections 420/467/468/471 of the Indian Penal Code which is pending before the learned Chief Judicial Magistrate, Purba Medinipur. 2. THE relevant facts of the present case are, in a nutshell, as follows: 3. O.P. No. 2 herein as defacto complainant filed a petition of complaint before the learned Chief Judicial Magistrate, Purba Medinipur which was sent to the O.C., Nandakumar P.S. for investigation after treating that same as FIR under Section 156(3) of the Code of Criminal Procedure. Accordingly, Nandakumar P.S. case No. 131 of 2006 dated 17.12.2006 under Section 420/467/468/471 of the Indian Penal Code was started. In the said petition of complaint the defacto complainant alleged therein inter alia that accused No. 1 since deceased, was a contractor and the proprietor of one S.M. Construction and accused No. 2 being the husband of accused No. 1 was the main supervisor of all construction works on behalf of his wife-proprietor. In the said petition of complaint, the defacto complainant has further contended that he entered into agreements with the accused persons for execution of jobs and for supplying materials, labours etc. The accused persons in terms of agreements made payments from time to time for running works and also obtained receipts. It has been alleged that in terms of agreement dated 19.2.2005, accused No. 1 being the proprietor issued three cheques which were dishonoured. In the said petition of complaint, it has been further alleged by O.P. No. 2/defacto complainant that in response to his lawyer's notice in the matter of payment of the amount of three cheques which were dishonoured, the accused persons also sent lawyer's letter informing that they paid the amount of the said three dishonoured cheques and they sent photocopies of the receipts in question alongwith their lawyer's letter in support of their contention. It is the case of the defacto complainant that the accused person never paid the amount of the said cheques and the receipts sent alongwith the lawyer's letter were forged. 4. It is the case of the defacto complainant that the accused person never paid the amount of the said cheques and the receipts sent alongwith the lawyer's letter were forged. 4. IT is the case of the petitioner/accused herein that the defacto complainant filed the said case with an ulterior motive to harass them. In this case, the petitioner/accused has alleged that charge sheet does not constitute any offence under Sections 420/467/468/471 of the Indian Penal Code and accordingly, the proceeding is required to be quashed. It is also the contention of the petitioner/accused person that the dispute between the parties essentially a civil dispute and does not amount to the commission of criminal offence. 5. THE learned counsel for the petitioner has submitted that the defacto complainant/opposite party No. 2 herein in his petition of complaint never stated that the accused persons dishonestly induce the defacto complainant for executing the said agreements and that no allegation whatsoever has been made in the said petition of complaint that the accused persons had an intention to cheat the defacto complainant from the very inception. The learned counsel has further submitted that the defacto complainant/opposite party No. 2 herein in para 5 of his petition of complaint has specifically admitted that the accused persons in terms of agreement paid amount from time to time for the running works and obtained receipts. From the said averment it is evident that no ingredient of offence under Section 420 IPC is disclosed in the petition of complaint. It is further submitted that mere dishonour of cheque issued by the accused person do not constitute any offence under Section 420 IPC. The learned counsel has also contended that the alleged forged receipts which were said to have been forged by the accused persons were not seized by the Police during investigation. The said receipts are required for just and proper adjudication of the instant case, because in absence of such receipts, it cannot be said that there was any forgery in the receipts in question. The learned counsel has further argued that the signatures of the accused were sent to the handwriting expert twice and the handwriting expert submitted his reports after comparing the signatures of the accused with the signatures on the questioned document. The learned counsel has further argued that the signatures of the accused were sent to the handwriting expert twice and the handwriting expert submitted his reports after comparing the signatures of the accused with the signatures on the questioned document. In the said reports, the handwriting expert failed to give any opinion that the concerned documents bear the signatures of the accused. It is submitted by the learned counsel for the accused person that the defacto complainant alleged that photocopy of the receipts which were sent to the defacto complainant alongwith the lawyer's letter, were forged to establish that the accused paid the entire balance amount including the amount of cheques which were dishonoured. So, the said three documents (receipts) are vital documents to establish the offence of forgery. But the said documents were not seized during investigation. So, mere submission of charge sheet is not sufficient to establish that a prima facie case under Sections 467/468/471 IPC has been made out where the essential document for proving the offence were not seized. 6. THE learned counsel for the O.P./State has submitted that after investigation, charge sheet has been submitted meaning thereby that a prima facie case has been made out. Since charge sheet prima facie constitutes offences, the allegation made therein will have to be taken on the face value. Accordingly the proceeding in question cannot be quashed. 7. THE learned counsel for the defacto complainant/opposite party No. 2 has submitted that if averments in complaint prima facie make out a case for investigation, the High Court cannot quash the complaint merely because one or two ingredients of the offence have not been stated in details. It is further submitted that as per Section 482 of Code of Criminal Procedure meticulous analysis of the case before trial to find out whether the case could end in acquittal or conviction is not proper. Reference has been made to the decisions of the Hon'ble Supreme Court reported in AIR 1992 SC 604 [State of Haryana vs. Bhajan Lal]; 1999 SCC (Cri) 401 [Rajesh Bajaj vs. State of NCT of Delhi] and 1999 SCC (Cri) 405 [N.K.Ogle vs. Sanwaldas @ Sanwalmal Ahuja]. 8. THERE is no controversy that charge sheet has been submitted under Sections 420/467/468/471 of the Indian Penal Code against the accused person. 8. THERE is no controversy that charge sheet has been submitted under Sections 420/467/468/471 of the Indian Penal Code against the accused person. There is also no controversy that there was agreements between the parties to the effect that the defacto complainant/opposite party No. 2 would execute works as sub-contractor under the accused persons. There does not appear to be any controversy that the accused persons in terms of agreement made payment from time to time for running works and obtained receipts. There is also no dispute that the accused persons 1/proprietor of the Farm since deceased, issued three cheques in favour of the defacto complainant which were dishououred. 9. THE dispute mainly relates to the question as to:- i) whether there was any inducement on the part of the accused persons; ii) whether the accused persons had any intention to cheat the defacto complainant from the very inception; and iii) whether the accused persons made any forgery in the receipts by incorporating the amount of the dishonoured cheques. 10. AFTER taking into consideration all relevant facts and materials and giving due regard to the submission made by the learned counsel for both the parties, it appears that three points are required to be considered i)whether or not there is sufficient ground for proceeding against the petitioner/accused person; ii) whether there is an abuse of process of court and iii) whether ends of justice demands quashing of the proceeding. 11. ON perusal of the petition of complaint, it appears that the defacto complainant in his complaint has never alleged that the accused persons dishonestly induced him to enter into the said agreements. It further appears from para 5 of the petition of complaint that the accused persons in terms of the agreements paid the amount from time to time for running works and obtained receipts. The said averment also does not go to show that the accused had an intention to cheat the defacto complainant from the very inception. So it appears that the essential ingredients of offence under Section 420 IPC are found absent in the petition the Complaint. 12. IN the petition of complaint, it is specifically stated that the present accused who is the husband of accused No. 1/proprietor of the Farm, was the main supervisor of all construction works for and on behalf of his wife proprietor (para 2 of the petition of complaint). 12. IN the petition of complaint, it is specifically stated that the present accused who is the husband of accused No. 1/proprietor of the Farm, was the main supervisor of all construction works for and on behalf of his wife proprietor (para 2 of the petition of complaint). So, it appears that the defacto complainant/opposite party No. 2 never alleged that the present accused used to look after the business of that Farm and that he also used to supervise the Office works. There is also no allegation in the petition of complaint that in collusion with his wife, the present accused forged the receipts etc. and used the same as genuine. On the other hand, it appears that all the documents viz. agreements, cheques etc. were signed by the accused No. 1, since deceased. It further appears that the handwriting expert has failed twice to give any opinion as to whether or not the signatures appear on the agreements belong to the present accused. Moreover, it is not the case of the prosecution that the signatures on the agreements were forged by the accused persons. 13. THE last but not the least, vital documents of this case that is the alleged receipts which are alleged to have been forged by the accused persons by incorporating therein the amount of the dishonoured cheques, were not seized in connection with the case. 14. HAVING regard to above facts and circumstances and materials on record, it appears that during investigation the Police has failed to establish any prima facie case against the present accused. 15. IN view of the above, I find merit in the present application under Section 482 of the Code of Criminal Procedure which accordingly must be allowed. 16. ACCORDINGLY, the instant application under Section 482 of the Code of Criminal Procedure succeeds. CRR 1701 of 2011 is allowed and in the nature and background of the case without cost. 17. THE proceeding of Nandakumar P.S. Case No. 131 of 2006 dated 17.12.2006 corresponding to G.R. Case No. 853 of 2006 is hereby quashed. Let a copy of this judgment be sent to the learned trial court for information and necessary action. 18. URGENT Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.