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2012 DIGILAW 958 (CAL)

Dipak Saha v. Suresh Pandey

2012-10-17

DIPAK SAHA RAY

body2012
Judgment :- Dipak Saha Ray, J. The present case arises out of an application Under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 for quashing the proceeding of Case No. C/3680 of 2009 Under Section 384/34 of the Indian Penal Code which is pending before the Learned Metropolitan Magistrate, 9th Court, Calcutta and also setting aside the order dated 9.6.2011 passed by the learned Metropolitan Magistrate, 9th Court, Calcutta in the said Case No. C/3680 of 2009. The relevant facts of the present case are, in a nutshell, as follows: Opposite Party No. 1 herein as complainant filed a petition of complaint before the Learned Additional Chief Metropolitan Magistrate, Calcutta praying for sending the said petition of complaint to the Officer-in-Charge Burtolla, Police Station for investigation after treating the petition of complaint as F.I.R. Under Section 156(3) of the Code of Criminal Procedure. But the Learned Additional Chief Metropolitan Magistrate without sending the petition of complaint to the concerned Police Station, treated the same as complaint Under Section 2(d) of the Code of Criminal Procedure with an observation that the dispute was purely civil dispute relating to non-performance of a contract. Thereafter, the case was transferred to the Metropolitan Magistrate, 9th Court for enquiry under the provision of Section 200 of the Criminal Procedure Code. Being aggrieved by the said observation of the Learned Additional Chief Metropolitan Magistrate, the complainant preferred a revisional application before the High Court which was registered as CRR No. 286 of 2010. The Hon'ble’ble Justice Ashim Kumar Banerjee disposed of the said revisional application with the following observation “.....Once the learned Magistrate took cognizance and directed the said complaint to be heard by a Magistrate, the earlier part of the order and/or observation referred to above, must be taken as a prima facie view of the learned Magistrate and such view must not prejudice the learned Magistrate who would be hearing the complaint Under Section 200 of the Criminal Procedure Code. The learned Magistrate should proceed in accordance with law and pass appropriate order on the same. With these observations, the revisional application as well as the application, being C.R.A.N. 1701 of 2010, are disposed of. The issue is long pending, the learned Magistrate should expedite the process….” In view of the aforesaid order, the Learned Trial Court examined the witnesses Under Section 200 of the code of Criminal Procedure. With these observations, the revisional application as well as the application, being C.R.A.N. 1701 of 2010, are disposed of. The issue is long pending, the learned Magistrate should expedite the process….” In view of the aforesaid order, the Learned Trial Court examined the witnesses Under Section 200 of the code of Criminal Procedure. Being not satisfied with the solemn affirmation of the witnesses and the materials produced by the complainant, the learned Magistrate asked the Officer-in-Charge Burtolla, Police Station to investigate the case under the provision of Section 200 of the Code of Criminal Procedure and to submit report before the Court. On the basis of the said direction, one S.P. Chowdhury, Sub-Inspector of Police investigated the matter and thereafter he submitted the report before the Court through the Officer-in-Charge, Burtolla Police Station. On receiving the said report, the Learned Trial Court by its impugned order issued process Under Section 384/34 of the Indian Penal Code against the accused persons as prima face case was made out against them. Being aggrieved by and dissatisfied with the said impugned order in the matter of issuance of process by the Learned Metropolitan Magistrate, the instant revisional application has been preferred. It is the case of the petitioners that the Opposite Party No. 1, issued cheques for refunding the consideration money mentioned in the agreement for sale as the said agreement could not be fulfilled by him and his henchmen i.e., Opposite Party No. 3 and 4. But the said cheques were dishonoured by the concerned Bank and accordingly, the petitioner sent notice to the Opposite Party herein. On getting such notice, the said Opposite Party filed petition of complaint before the Additional Chief Metropolitan Magistrate, Calcutta alleging that the petitioner and his men after entering office of the Opposite Party No. 1 forced him to issue post dated cheques in favour of the petitioner herein. The said petition of complaint was treated as complaint and registered as Case No. C/3680 of 2009. It has been argued by the learned Counsel for the petitioners that in order to protect the legal consequence in the matter of bouncing the cheque issued by the petitioners, the concerned case was initiated. It has been further argued that it is not expected from any prudent person that he/she after applying force by way of coercion and threat would obtain post dated cheques from any person. It has been further argued that it is not expected from any prudent person that he/she after applying force by way of coercion and threat would obtain post dated cheques from any person. According to the learned Counsel----had such cheques been obtained from the opposite party under coercion and threat, the matter would have been promptly reported by the aggrieved party of ordinary prudence to the Bank authority with a prayer for stopping payment on the impugned cheques; but in this case bank authority was not informed about the matter even before bouncing the said alleged post dated cheques which were said to have been obtained by the petitioner on coercion and threat. So, alleged facts and circumstances are inherently improbable and manifestly false and frivolous. It is further argued on behalf of the petitioner that the report under Section 202 of the Code of Criminal Procedure cannot be taken into account in connection with this case as the same was submitted by one Sub-Inspector of the concerned Police Station although the Officer-in-Charge of the concerned Police Station was directed by the learned Court below to investigate and submit report. It has also been argued that when the petition of complaint was filed by the complainant, the learned Additional Chief Metropolitan Magistrate, Calcutta, observed that the dispute is civil in nature; in view of such observation of the learned Magistrate, the complainant of this case ought to have prayed for relief before the Civil Court as no criminal liability was established in the said petition of complaint. As against this it is the contention of the learned Counsel for the Opposite Party that against the observation of the learned Additional Metropolitan Magistrate, a revisional application was filed before the Hon'ble High Court and in the said case which was registered as C.R.R No.286 of 2010, the Hon’ble Mr. Justice Ashim Kumar Banerjee directed the learned Magistrate to expedite the matter. The said order has not been challenged as yet and accordingly the petitioner is estopped from agitating the matter again. It is also argued that as per the provision of Section 2(O) of the Code of Criminal Procedure, Officer-in-Charge of Police Station authorised to direct any officer of his Police Station who is authorized to investigate any case as per the Act. It is also argued that as per the provision of Section 2(O) of the Code of Criminal Procedure, Officer-in-Charge of Police Station authorised to direct any officer of his Police Station who is authorized to investigate any case as per the Act. So the report submitted by the concerned Police Officer after investigating the matter as per the direction of the Officer-in-Charge, is legal and valid and as such the learned Magistrate has rightly issued the process after considering the said report, evidence and the materials on record. Admittedly, after receiving the petition of complaint, the learned Additional Metropolitan Magistrate observed that the dispute was civil in nature. Against such observation of the learned Magistrate a revisional application was filed and in the said revisional application Hon’ble Mr. Justice Ashim Kumar Banerjee directed the learned trial Court to expedite the process. The said order of this Court has not yet been challenged and, accordingly, it appears that the parties, at this stage, are estopped to challenge that the cognizance taken by the learned Magistrate was bad in law. It has been held in a decision reported in (2001)2 CAL LT438(HC) that “Thereafter, the learned Magistrate is competent to direct an investigation to be made by the Officer-in-Charge or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. It does not, however, speak that such investigation should be done alone by the Officer-in-Charge. Such investigation or enquiry is to be done by a police officer under the order of the Magistrate. In this case, the learned Additional Chief Judicial Magistrate directed the Officer-in-Charge for an enquiry not be himself, but he can do it by one of his subordinate officers. Since he is the head of the police station, such letter must be addressed to the Officer-in-Charge, but not to any other subordinate police officer. Accordingly, the letter was addressed to the Officer-in-Charge for compliance. It has not been stated that it is to be done by the Officer-in-Charge alone. Accordingly, I do not find any irregularity or illegality if such investigation was carried out by one of his subordinate officer working as Sub-Inspector in the said Police Station. I have carefully gone through the judgment reported in (1999) 2 CLJ page 86. I find that the principle decided in that case is not applicable in this case. Accordingly, I do not find any irregularity or illegality if such investigation was carried out by one of his subordinate officer working as Sub-Inspector in the said Police Station. I have carefully gone through the judgment reported in (1999) 2 CLJ page 86. I find that the principle decided in that case is not applicable in this case. No other point has been canvassed by the learned advocate in this case…….” [Paragraph-9] In view of the above it appears that no illegality has been done by the learned Magistrate in considering the report submitted Under Section 202 of the code of Criminal Procedure. It is the settled principle of law that the inherent power of the High Court under Section 482 of the Code of criminal Procedure can be exercised (i) to give effect to any order under this Code; (ii) to prevent abuse of the process of any Court; and (iii) or otherwise to secure the ends of justice. It is also well known that the dispute which is civil in nature and for such dispute civil remedy is available, is not the ground for dismissal of the criminal proceeding. They cannot be debarred any person to seek remedy if the complaint discloses criminal offence. In the instant case, on plain reading of the petition of complaint it appears that the contentions of the said petition of complaint disclose criminal offence. It is well settled that Under Section 482 of the Code of Criminal Procedure meticulous analysis of the case before the trial to find out whether the case would end in acquittal or conviction is not proper. The complaint cannot be quashed by invoking Section 482 of the Code of Criminal Procedure if averments in complaint prima facie make out a case for investigation. After considering the evidence and materials on record and also on the basis of the report submitted by the police Under Section 202 of the Criminal procedure Code, the learned Magistrate was prima facie satisfied that the accused persons have committed criminal offence. So, the said observation will have to be taken on the face value. Having regard to all such facts and circumstances I find no merit in the present application Under Section 401 read with Section 482 of the Code of Criminal Procedure 1973 which accordingly must be dismissed. So, the said observation will have to be taken on the face value. Having regard to all such facts and circumstances I find no merit in the present application Under Section 401 read with Section 482 of the Code of Criminal Procedure 1973 which accordingly must be dismissed. Accordingly the instant application Under Section 401 read with Section 482 of the Code of Criminal Procedure fails. The impugned order dated 9.6.2011 passed by the Metropolitan Magistrate, 9th Court, Calcutta in Case No. C/3680 of 2009 under Section 384/34 of the Indian Penal Code is hereby affirmed. As a consequence thereof the interim order which was passed on 21.7.2011 is hereby vacated. In view of the above CRAN No. 1038 of 2012 is also disposed of accordingly.