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2014 DIGILAW 1202 (CAL)

Salil Bose v. State of West Bengal

2014-12-22

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. Proceeding in Khatra Police Station case no.24/14 dated 05.04.2014 corresponding G.R. No.264/2014 under sections 420, 406, 506 read with section 34 of the Indian Penal Code has been assailed on the premise that the said proceeding was initiated on the basis of subsequent information lodged by the defacto-complainant, opposite party no.2 at the police station herein over the self-same incident. 2. It appears that on 09.10.2013 an application under section 156 (3) of the Cr.P.C. was taken out by the opposite party no.2 against one Tipu Sultan and six others alleging that the said persons being the Director and other office bearers of one M/s Golden Life Agro Indian Limited had induced the opposite party no.2 and various persons to invest in their company on false promise that the invested money would be returned to them with handsome profits. It is further alleged that after the investment the company closed down its business and did not make refund at all. In fact, cheques issued with regard to refund were dishonoured. In spite of direction given by the learned Additional Chief Judicial Magistrate, Khatra, Bankura, by order dated 09.10.2013 no First Information Report was registered. Under such circumstances, opposite party no.2 lodged another written complaint with the Inspector In-Charge, Khatra Police Station alleging that he deposited a sum of Rs. 8,59,600/- on false promise that the same shall be repaid with handsome interest. Initial instalment of Rs. 2,93,750/- was sought to be repaid to the petitioner vide cheque dated 25.04.2013 drawn on the State Bank of India. The said cheque was returned unpaid by the banker on presentation. It has been further alleged that the petitioner no.1 is the owner of the said company and had cheated a number of persons in similar manner. The petitioner no.2 is a relation of petitioner no.1 and acted in collusion with the latter in the alleged crime. Upon receipt of the said written complaint, impugned First Information Report being Khatra Police Station case No.24/2014 corresponding to GR No.264/2014 dated 05.04.2014 under sections 406/420/506/34 of the Indian Penal Code was registered for investigation. 3. Mr. The petitioner no.2 is a relation of petitioner no.1 and acted in collusion with the latter in the alleged crime. Upon receipt of the said written complaint, impugned First Information Report being Khatra Police Station case No.24/2014 corresponding to GR No.264/2014 dated 05.04.2014 under sections 406/420/506/34 of the Indian Penal Code was registered for investigation. 3. Mr. Chakraborty, learned counsel appearing for the petitioners submitted that the letter of complaint dated 05.04.2014 is a subsequent intimation of the alleged offence in as much as the opposite party no.2 had already lodged an earlier application under section 156 (3) of the Cr.P.C. which had been sent for investigation to the police vide order dated 09.10.2013. He further submitted that there was no whisper as to the role of the petitioners in the earlier application under section 156(3) of the Cr.P.C. The petitioners have been falsely implicated in the instant case with ulterior motive. There is nothing on record that petitioner no.1 is the owner of the company or that the petitioner no.2 had played any role with regard to the alleged crime. Mr. Chakraborty further submitted that the depositors have approached before the Writ Court in W.P. No.16338 of 2014 and an order was passed therein protecting their interest. He accordingly prayed for quashing of the impugned criminal case. In support of his submissions, he relied on decisions reported in AIR 2001 SC 2637 (T.T. Antony v. State of Keral and others) and (2010) 12 SCC 254 (Babubhai v. State of Gujarat and others). 4. Mr. Banerjee, learned Additional Public Prosecutor produced a report of I/C Khatra P.S. disclosing that intimation had been sent to the opposite party no.2 herein. However, nobody appears on behalf of the opposite party no.2. The said report is kept on record. 5. Mr. Banerjee referring to the said report submitted that in terms of direction given by the learned Magistrate on 09.10.2013 another criminal case being Khatra PS Case No.92/14 under sections 420/406/120B I.PC. has been registered for investigation against one Tipu Sultan and six others. He further submitted that notice under section 41(A) Cr.P.C. has been issued against the said accused persons. He submitted that the written complaint dated 05.04.2014 discloses a bigger conspiracy involving the petitioners in the matter of inducing innocent depositors through money circulation schemes floated on behalf of the aforesaid company. He further submitted that notice under section 41(A) Cr.P.C. has been issued against the said accused persons. He submitted that the written complaint dated 05.04.2014 discloses a bigger conspiracy involving the petitioners in the matter of inducing innocent depositors through money circulation schemes floated on behalf of the aforesaid company. The role of the petitioners in the crime have come out in the statements of witnesses recorded under section 161 Cr.P.C. Accordingly, no interference is called for in the instant case. 6. I have considered the rival submissions of the parties. I find that over the allegations of misappropriating deposits made by innocent investors on the false promise that they would be repaid the same with handsome interest, an application under section 156(3) Cr.P.C. was filed before the learned Additional Chief Judicial Magistrate, Khatra, Bankura. By order dated 09.10.2013 the said application was sent to the police authorities for registration as First Information Report. Such application is, therefore, the first intimation about the incident to the police authorities and ought to be treated as First Information Report. However, no steps were taken in the matter. Accordingly, the opposite party no.2 again intimated the incident to the police through a subsequent letter of complaint dated 05.04.2014 wherein he depicted the role of the petitioners in running of the aforesaid company which had misappropriated the deposits invested by himself and other depositors. Such subsequent intimation has been treated as First Information Report being Khatra P.S. Case No.24/14 dated 05.04.2014. Subsequently, Khatra P.S. Case No.92/2014 was registered pursuant to the aforesaid direction given by the learned Magistrate on 09.10.2013. It is therefore clear that the direction given by the learned Magistrate in order dated 09.10.2013 to treat the application under section 156(3) Cr.P.C. as First Information Report is the first intimation of the alleged crime to the police and precedes the written complaint dated 05.04.2014 which has been treated as F.I.R. in the instant case. However, substantial investigation has progressed pursuant to registration of such F.I.R. and it would be incorrect to throw out such materials which has already been collected. Bearing in find the aforesaid facts, I am of the opinion that instead of quashing of the impugned criminal case the investigation in both the cases ought to be amalgamated as they relate to the self same incident. Bearing in find the aforesaid facts, I am of the opinion that instead of quashing of the impugned criminal case the investigation in both the cases ought to be amalgamated as they relate to the self same incident. I do not agree with the submission of the learned counsel appearing for the petitioners that there is no material connecting the petitioners with the alleged crime. The role of the petitioners has been clearly delineated in the written complaint dated 05.04.2014. Furthermore, it appears from the statements recorded under section 161 Cr.P.C. that the petitioners had played an active role in running of the company and inducing the defacto-complainant and other depositors in making investments on false promises and thereafter misappropriating the same. 7. Accordingly, I am not inclined to quash the impugned proceeding so far as the petitioners are concerned. However, in view of the fact that both the First Information reports were registered in respect of self-same incident, I direct that both the cases shall be amalgamated together and the application under section 156(3) Cr.P.C. in M.P. Case No.28/2013 (FIR in Khatra PS Case no.92/14) be treated as First Information Report of such case. First Information Report in the instant case (Khatra PS case No.24/2014) shall be treated as subsequent statement of the defacto complainant recording under section 162 Cr.P.C. and the petitioners shall be arrayed as accused persons in the said amalgamated case. Statements of witnesses recorded under section 161 Cr.P.C. and the materials collected in the course of investigation of the instant case shall be deemed to be as a part of investigation of the amalgamated case. I observe that in view of the gravity of the offence and the necessity of proper investigation of the case for recovering the monies allegedly misappropriated by the petitioners and others accused persons under the aforesaid money circulation schemes, it was inadvisable on the part of the investigating agency to issue notices under section 41A of the Code in Khatra P.S. Case No.92/14. Such notices are quashed and the investigating agency is directed to proceed with the investigation of the amalgamated case against the petitioners and other accused persons (i.e. the accused persons in Khatra P.S. Case No.92/14) in an effective manner and in accordance with law with utmost promptitude and take it to its logical end. 8. Such notices are quashed and the investigating agency is directed to proceed with the investigation of the amalgamated case against the petitioners and other accused persons (i.e. the accused persons in Khatra P.S. Case No.92/14) in an effective manner and in accordance with law with utmost promptitude and take it to its logical end. 8. I am further of the opinion that the order passed in W.P. No.16338 of 2014 has no bearing on the legality of the registration of the criminal case against the petitioners and other accused persons. 9. With the aforesaid directions, the revision petition is disposed of. Consequently, the connected application being CRAN 3589 of 2014 is also disposed of.