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Gauhati High Court · body

2012 DIGILAW 88 (GAU)

Md. Abdul Rehman Shekh v. Mukut Bhattacharya

2012-01-23

B.D.AGARWAL

body2012
JUDGMENT B.D. Agarwal, J. 1. The accused in Complaint Case No. 48 of 2011 in the Court of learned Judicial First Class, Biswanath Chariali has filed this application under Section 482 of the Code of Criminal Procedure for quashing of the said criminal proceeding. The immediate cause for filing this quashing application is the issuance of process by the learned Magistrate against the accused taking cognizance of offence Under Sections 181/182/199/406 of the Indian Penal Code. Heard Mr. T.C. Khatri, learned senior counsel for the petitioner and Mr. G.C. Phukan, learned counsel for the sole respondent/complainant. In addition to the oral submissions, the learned counsels also submitted written synopsis of their argument. Besides this, I have also perused the complaint petition, initial statements of witnesses and other documents, filed with the criminal petition. 2. The gist of the complaint is that both the complainant and the accused were running a brick kiln, in the name and style of M/s. Purbanchal Brick Industries. Other than the petitioner and the respondent, two more persons were the partners of the said firm. As per mutual agreement, one of the partners was given charge of the industry per year. The accused was holding the charge for the industry for the year 2004-05. He was again given the charge of the industry for the year 2007-08. 3. The complainant's allegation is that the accused/petitioner developed ill-motive to convert the property of the firm in his individual name and also he has misappropriated the property of the firm. The other allegation of the complainant is that the accused did not submit the accounts of the business in his attempt to convert the industry in his own name. The accused/petitioner also changed the name of the firm from Purbanchal Brick Industry to Imrana Brick Industry, claiming himself to be the proprietor of the said industry. The complainant has further alleged that the accused submitted false affidavit before various statutory authorities, declaring himself as the owner of the industry. 4. As usual, the complainant's statement was recorded by the learned Judicial Magistrate under Section 200 of the Cr PC and taking cognizance of the offences has issued process against the accused. Being aggrieved with the action of the learned Judicial Magistrate for taking cognizance of the offences, the sole accused has preferred this quashing petition. 5. Mr. 4. As usual, the complainant's statement was recorded by the learned Judicial Magistrate under Section 200 of the Cr PC and taking cognizance of the offences has issued process against the accused. Being aggrieved with the action of the learned Judicial Magistrate for taking cognizance of the offences, the sole accused has preferred this quashing petition. 5. Mr. Khatri, learned senior counsel for the petitioner submitted that taking cognizance of offences under Section 181/ 182/199 of the IPC is illegal in as much as the learned Magistrate did not have requisite jurisdiction to take cognizance of the offences on the basis of complaint, lodged by a private individual. According to the learned counsel, a Magistrate can take cognizance of the aforesaid offence only upon receipt of written complaint by public servant or by the Court, before whom a false statement has been made or a false affidavit has been given, knowing fully well that the statements are incorrect. This submission was made relying upon various provisions under Section 195, Cr PC. 6. With regard to taking cognizance under Section 406 of the IPC, the learned senior counsel for the petitioner submitted that this is also untenable inasmuch as there cannot be any allegation of the criminal breach of trust against a partner in view of the law laid down by the Hon'ble Supreme Court in Velji Raghavji Patel v. State of Maharashtra, AIR 1965 SC 1433 : (1965) 2 SCR 429 and Anil Saran v. State of Bihar, (1995) 6 SCC 142 : AIR 1996 SC 204. 7. The criminal proceeding has further been attacked on the ground that the complainant's have also filed a civil suit in the Court of learned District Judge, Tezpur, being Title Suit No. 73 of 2010 and since the dispute is essentially of civil nature, the criminal proceeding should be quashed. 8. Per contra Mr. Phukan, learned counsel for the respondent submitted that Section 195, Cr PC would not come in the way of taking cognizance of offence under Section 181/182/199, IPC According to the learned counsel, this embargo is applicable only if false evidence is given before a judicial authority. According to the learned counsel since false informations were given before certain statutory authorities, other than the Court, there was no impediment for the Judicial magistrate to take cognizance of the aforesaid offences. According to the learned counsel since false informations were given before certain statutory authorities, other than the Court, there was no impediment for the Judicial magistrate to take cognizance of the aforesaid offences. With regard to the offence under Section 406 of the IPC, the learned counsel for the respondent submitted that the business of the firm was entrusted to the petitioner, including its property and as such, diversion of property of the firm would certainly attract the offence under Section 406, IPC. 9. Since, the case is destined to be remanded back to the trial Court I refrain from passing any observation as to whether the allegations made in the complaint make out a case of misappropriation of property. However, the observations made in both the cases need to be taken into consideration, hence, are extracted below : Velji Raghavji Patel v. State of Maharashtra Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of Section 405. In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted to the accused person. If in the absence of such a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words cannot be held to have been "entrusted" with dominion over partnership properties. Anil Saran v. State of Bihar 8. It is next contended that the appellant, being a partner in the complainant firm, cannot be said to have committed criminal breach of trust of his own funds and that, therefore, it is a case of civil liability only. The contention that one partner cannot commit criminal breach of trust against other partners, though prima facie alluring, on facts of this case, it does not appear to be tenable. The contention that one partner cannot commit criminal breach of trust against other partners, though prima facie alluring, on facts of this case, it does not appear to be tenable. Partnership firm is not a legal entity but a legal mode of doing business by all the partners. Until the firm is dissolved as per law and the accounts settled, all the partners have dominion in common over the property and funds of the firm. Only after the settlement of accounts and allotment of respective share, the partner becomes owner of his share. However, criminal breach of trust under Section 406 is not in respect of the property belonging to the partnership firm, but is an offence committed by a person in respect of the property which has been specially entrusted to such a person under a special contract and he holds that property in fiduciary capacity under special contract. If he misappropriates the same, it is an offence. 10. The law relating to inherent powers of the High Court under Section 482 of the Cr PC is no longer re-integra. Criteria for interfering in a criminal proceeding, even at its initial stage was laid down by Hon'ble Supreme Court long back in the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 . The law was further amplified in the case of State of Haryana v. Bhajan Lal, (1992) Supp 1 SCC 335. In this judgment, precisely, it has been held that if the allegations made in the FIR/complaint do not make out any case, at their face value or the imputations do not make out any cognizable offence or any case at all against the accused or if the allegations are absurd, inherently improbable or, inter alia, if the criminal proceeding is manifestly tainted with malice, such proceeding can be quashed even at initial stage. 11. The aforesaid views have been consistently approved by Hon'ble Supreme Court. In the case of State of Maharashtra v. At Devendrappa, (2002) 3 SCC 89 , their Lordships have dealt with the power that can be exercised ex-debito justitiae to do complete and substantial justice for the administration, for which alone, Courts exist. Their lordships have further observed that it would be abuse of the process of Court to allow any action that would result in injustice and prevent promotion of justice. Their lordships have further observed that it would be abuse of the process of Court to allow any action that would result in injustice and prevent promotion of justice. A note of caution has also been given in the judgment, so that the extraordinary power is not misused. The Hon'ble Apex Court has further held that while examining an application under Section 482, Cr PC, it is not permitted to meticulously examine the materials available before the trial Court. In this way, High Court possess inherent powers and would be absolutely within its jurisdiction to interfere in a criminal proceeding, provided it is found that continuation of the criminal proceeding would be sheer abuse of the process of law. 12. In the case of CBI v. Ravi Shankar Shrivastava, (2006) 7 SCC 188 , the Apex Court has held that the inherent power should not be exercised to stifle a legitimate prosecution and the High Court should refrain from giving prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court. In my considered opinion, though the accused/petitioner may have a good case to argue about the competency of the learned judicial Magistrate to issue process under Section 181/182/199, IPC without there being a written complaint by the concerned public servant, the criminal proceeding has also been assailed on other factual aspects as well. There is a controversy as to whether the accused was in dominion of the property of the joint business and whether there was misappropriation of any such property. Besides this, there is also an allegation of attempting to convert the partnership business into a proprietary business by way of changing the name of the firm. In view of these allegations and counter assertions, it is not advisable for me to hold that the learned Magistrate took cognizance of the complaint without applying his mind judiciously. 13. In the case of M.N. Ojha v. Alok Kumar Shrivastav, (2009) 9 SCC 682 , the Hon'ble Supreme Court has held in exercise of jurisdiction under Section 482, Cr PC, High Courts cannot go into the truth or otherwise of the allegations and appreciate the evidence, if any, available on record. 13. In the case of M.N. Ojha v. Alok Kumar Shrivastav, (2009) 9 SCC 682 , the Hon'ble Supreme Court has held in exercise of jurisdiction under Section 482, Cr PC, High Courts cannot go into the truth or otherwise of the allegations and appreciate the evidence, if any, available on record. Their Lordships have further observed that, normally, the High Court would not intervene in the criminal proceedings at the preliminary stage, when the investigation/enquiry is pending. 14. The above apart, the learned Judicial Magistrate has to examine the impugned offences under warrant procedure (Chapter-XIX-B). Under this chapter, Court has to first receive the evidence of the prosecution/complainant under Section 244, Cr PC. If, upon taking all the evidence of the prosecution, the Magistrate considers and is of the opinion that no case against the accused has been made out or would war- rant conviction, if the evidence remains un-rebutted, the Magistrate has the power to discharge an accused under Section 245. In this way, the learned Magistrate is yet to formally enter into the trial of the case In other words, the accused has a remedy to argue before the trial Magistrate about the legal embargo for taking cognizance of the offences under Section 181/182/199 and also under Section 406 of the IPC. 15. A criminal trial undergoes various stages. The law is set in motion from the date of taking cognizance of a complaint by a Judicial Magistrate or registration of an FIR at a police station and culminates with the judgment of the Court. Sans minor activities in the process, the trial can be broadly divided in three stages-- (i) taking cognizance of an offence; (ii) recording of prosecuting evidence and (iii) recording of defence evidence, if any, and judgment. In this case we are concerned with only first and second stages of trial. 16. Complaints and police reports are filed in the Court under Section 190 of the Code of Criminal Procedure. On receipt of a complaint, a Magistrate has two options. Either he can take cognizance of the offence (s) himself or the complaint may be forwarded to the concerned police station for investigation. If the second option is adopted it would not amount to taking cognizance of the offence(s). On receipt of a complaint, a Magistrate has two options. Either he can take cognizance of the offence (s) himself or the complaint may be forwarded to the concerned police station for investigation. If the second option is adopted it would not amount to taking cognizance of the offence(s). In the case of Dilawar Singh v. State of Delhi, (2007) 12 SCC 641 , the Hon'ble Supreme Court of India has observed that if a complaint, disclosing cognizable offences is forwarded to the police station, it would amount to exercising powers under Section 156 (3), Cr PC. If, however, the Magistrate decides to retain the complaint in the Court and examine the offences itself, he or she proceeds to take cognizance of the offences, adopting the procedure laid down under Chapter XV. This includes examination of the complainant on oath and the witnesses presented before him. If the Judicial Magistrate finds little substance in the accusations, he issues process against the accused under Section 204. 17. In the case of R.R. Chari v. State of U.P., AIR 1951 SC 207 , their Lordships of the Apex Court have approved the observations made in the case of Gopal Marwari v. Emperor as to what constitutes taking of cognizance and the said observations are as below : ...it was observed that the word "cognizance" is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The Court noticed that the word "cognizance" is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense. 18. In the case of Anil Saran (supra) the Apex Court has observed, as below, as to what would mean taking of cognizance of the offence(s) :-- ...Though the Court defines 'cognizable offence' and 'non-cognizable offence', the word 'cognizance' has not been defined in the Code. But it is now settled law that Court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc. Cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence... 19. But it is now settled law that Court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc. Cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence... 19. On the other hand, the procedures of trial of various categories of cases have been laid down under Chapters XVIII, XIX, XX and XXI, Cr PC. Upon entering into these Chapters, the Court is either abreast with complete brief of the prosecution case or at least obtains as much evidence as the complainant desires to give before the Court for framing of charges. Precisely, either the substance of accusations or the prosecution evidence is available before the Court, which is taken into consideration for framing of formal charges. However, the Court is not in such advantageous position at the stage of taking cognizance of offences. For taking cognizance of offences and issuance of process the Court gives only a cursory look to the complaint and initial statements of witnesses. Certainly, at the stage of framing of charges, the Court is in better position to assess the prosecution/complainant's case than at the stage of taking cognizance of the offences and issuing process to the accused. 20. In the aforesaid chapters of trial, there are various provisions where the accused persons can be discharged as well, if the Court, upon consideration of the prosecution documents/evidence is of the opinion that no case against the accused has been made out or that there is not sufficient ground for proceeding against the accused. There is plethora of authorities wherein it has been held that the trial begins from the stage of framing of charges. Hence, it is a crucial junction in the long route of a trial. There is equally good number of judicial pronouncements wherein it has been held that framing of charges vis-a-vis discharge of accused persons, without formal trial, is not an empty formality. Before discharging an accused without trial the Court has to examine all the merits and demerits of the case as well as gross weight of the prosecution/complainant's evidence. In view of these statutory prescriptions there is certainly a distinction and difference in the first and second stage of trial. Before discharging an accused without trial the Court has to examine all the merits and demerits of the case as well as gross weight of the prosecution/complainant's evidence. In view of these statutory prescriptions there is certainly a distinction and difference in the first and second stage of trial. I would say that the first stage of trial, i.e. taking cognizance of an offence, is just like opening the first page of a book. Hence, the High Court should be very cautious and circumspect to quash a criminal proceeding at this stage of a trial. 21. For the reasons, stated herein above, I am of the view that if the impugned criminal proceeding is quashed at the stage of issuance of process, in view of the materials on record, it would not only amount to infringement of the jurisdiction of the trial Court but would also amount to misuse of the inherent powers of the High Court. With the observations made in this judgment, the criminal proceeding stands dismissed. Petition dismissed.