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2014 DIGILAW 1203 (CAL)

Tarun Mitra v. State of West Bengal

2014-12-23

SUBRATA TALUKDAR

body2014
Judgment Subrata Talukdar, J. In this application Under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) the petitioners challenge the proceeding being Case no. C/105 of 2010 arising out of MP Case no.219 of 2009 under Sections 341/386/406/420/447/448/453 of the Indian Penal Code (for short IPC) presently pending before the Ld. Judicial Magistrate, Bidhan Nagar, District 24-Parganas North. The petitioners, inter alia, on the platform of the several grounds made out in the present application pray for quashing of the said impugned proceeding. The short facts of the case, according to the petitioner, are as follows:- a) That the petitioner nos. 1 and 2 are the Chairman and Secretary respectively of the Mahakal Co-operative Housing Society Ltd. (herein after referred to for short as the said Society or only the Society). The petitioner nos. 3 and 4 are members of the said society. b) The Opposite Party no.2 (for short OP2) and her husband, one Shri Rana Roy were admitted as the members of the said Society. At the time of their admission the OP2 and her husband were also members of one Jaiyta Co-operative Housing Society Ltd. In view of the dual membership of the OP2 and her husband in both the cooperative societies, the said Society adopted a resolution at its Board meeting dated 17th October, 2007 thereby disqualifying the membership of the OP2 and her husband from the roll of its members in terms of Rule 136 R of the West Bengal Co-operative Societies Rules, 1987 (for short the 1987 Rules). The OP2 and her husband were, thereafter, requested to resign their membership from the said Society. c) In view of the above noted developments, the OP2 and her husband made an attempt to transfer their membership in the Jaiyta Co-operative in favour of their son, Rishi Roy, who is the OP3 in this application. Furthermore, in view of the failure on the part of both the OP2 and her husband to act in terms of the request to resign their membership, the said Society adopted a resolution at its meeting of the Board of Directors (for short BOD) on 27th June 2008 thereby terminating the membership of the OP no.2 and her husband. Furthermore, in view of the failure on the part of both the OP2 and her husband to act in terms of the request to resign their membership, the said Society adopted a resolution at its meeting of the Board of Directors (for short BOD) on 27th June 2008 thereby terminating the membership of the OP no.2 and her husband. d) Upon termination of their membership the OP2 and her husband caused to be issued a legal notice to the said Society dated 31st July, 2008 therein claiming recall of the resolution terminating their membership. The said notice dated 31st July, 2008 was replied to by the said Society on 14th August, 2008 and the OP2 and her husband accepted an amount of Rs. 6 lakhs, from the said Society by account payee cheques being part of the full and final settlement of Rs.12,09,750. e) Thereafter, the OP2 and her husband called upon the said Society through the petitioner nos. 1 and 2 to pay the balance amount in favour of OP3. However, neither the OP2 nor her husband tendered their resignation from the roll of members of the said Society for which on the 25th of March, 2009 the Society had to remind the OP2 and her husband to receive the balance amount after tendering their resignation. f) Subsequently OP3, acting as the Constituted Attorney of the OP2 filed a complaint under Section 156 (3) Cr.P.C. in the Court of the Ld. Additional Chief Judicial Magistrate at Bidhan Nagar (for short ACJM) dated 9th September. 2009. Admitting the said complaint the Ld. Magistrate was pleased to direct the Inspector-in-charge, South Bidhan Nagar Police Station to investigate the complaint and file a report. It is relevant to note that the complaint was treated as a FIR under Sections 447/448/453/341/386/406/420 read with Section 120 (B) IPC. g) Following the direction of the Ld. ACJM the police submitted a Final Report no. 87/2010 dated 22nd July, 2010 stating, inter alia, that the dispute between the parties is civil nature and, on the basis of the final report citing mistake of fact (for short FRMF), prayed for discharge of the petitioners/accused citing lack of evidence. h) Aggrieved by the filing of the said FRMF no.87/2010 dated 22nd July, 2010 the OP3-cum-Constituted Attorney filed a petition of objection before the Ld. ACJM on the 30th of October, 2009. The Ld. h) Aggrieved by the filing of the said FRMF no.87/2010 dated 22nd July, 2010 the OP3-cum-Constituted Attorney filed a petition of objection before the Ld. ACJM on the 30th of October, 2009. The Ld. ACJM was pleased to accept the said petition of objection and took cognizance of the matter. The Ld. ACJM, thereafter, transferred the case record to the Ld. Judicial Magistrate for further proceeding and, as a consequence of such steps taken by Court, complaint case was registered on 4th of October, 2010. Thereafter, on taking of evidence under Section 200 Cr.P.C. the Ld. Magistrate was pleased to hold that there was sufficient prima face material to proceed against the petitioners/accused under Sections 386/406/420/448/453/120B IPC and, therefore, issued process. i) That upon issuance of process the petitioners/accused, on receipt of summons, appeared before the Ld. Magistrate and took bail. On 13th of December 2012, the petitioners filed an application challenging the cognizance taken. Such petition was rejected by the Ld. Magistrate on 4th February, 2013 fixing 22nd April 2013 for taking evidence. j) In the meantime the OP2 filed a writ petition before this Court being WP 1125 (W) of 2012 praying, inter alia, for restoration of possession of Flat no.401 of the said Society. The said writ petition was dismissed by an Hon’ble Single Bench with a direction upon the writ petitioner to approach the Registrar of Co-operative Societies, West Bengal for resolution of the dispute which involved points of limitation and maintainability. k) The OP2 challenged the order in the writ petition dated 18th April, 2012 in an intra-court mandamus appeal being MAT no.835 of 2012 which was dismissed by an Hon’ble Division Bench along with its connected application on 18th June 2012. l) Thereafter, on 26th of September 2012 one Dipankar Bhattacharyya, acting as the Constituted Attorney of the OP2 and her husband filed Dispute Case No.52/RCS of 2012 before the Ld. Assistant Registrar Co-operative Societies (for short ARCS), West Bengal with the prayer for recovery/restoration of the possession of Flat No.401 of the said Society unto them as also cancellation of the resolution of the said society terminating their membership. m) The said Society entered its appearance in Dispute Case no.52/RCS of 2012 and contested the same by filing written objection. After hearing the parties the Ld. ARCS was pleased to dismiss the Dispute Case no.52/RCS on 5th of February 2013. Sri Sanyal, Ld. m) The said Society entered its appearance in Dispute Case no.52/RCS of 2012 and contested the same by filing written objection. After hearing the parties the Ld. ARCS was pleased to dismiss the Dispute Case no.52/RCS on 5th of February 2013. Sri Sanyal, Ld. Counsel appeared for the present petitioners has argued the following:- i) That the flat in question was never under the physical possession of the OP2 de-facto complainant. In such view of the matter the allegation of illegal house trespass against the petitioners cannot stand. ii) That the petitioners have already refunded the sum of Rs.6 lakhs to the de-facto complainant – OP2 out of the total settlement amount of Rs.12, 09,750. The balance amount was payable to the OP2 and her husband on furnishing a Deed of Relinquishment. Admittedly, such Deed of Relinquishment duly approved by the DRCS and the Urban Development Authority, Government of West Bengal was not furnished in favour of the Society by the OP2 and her husband. In view of such failure to furnish the document required under the settlement, no liability can be fastened on the petitioners for non-payment of the balance sum. iii) That the criminal proceeding has not been instituted by the OP2 de-facto complainant but, on her behalf by her Constituted Attorney and therefore, such proceeding ceases to be maintainable in the eyes of law. iv) The police investigation has culminated in a final discharge report of FRMF. It has been found that the dispute between the parties is purely civil in nature. It has been submitted by the investigation agency that the petitioners/accused should be discharged due to the lack of sufficient evidence. v) Under Section 200 Cr.P.C. it is incumbent upon the Ld. Magistrate to take cognizance of an offence registered on the basis of a complaint by examining the complainant on oath. The Ld. Magistrate is required to reduce in writing the examination of the complainant on oath which is then required to be signed by the complainant. The examination of the complainant on oath can be dispensed with under law only under two situations, viz. first, if the complainant is found to be a person acting or purporting to act in the discharge of his official duties and second, when the complaint is instituted by the Court itself. vi) In all other scenarios the complainant is required to be physically examined by the Ld. first, if the complainant is found to be a person acting or purporting to act in the discharge of his official duties and second, when the complaint is instituted by the Court itself. vi) In all other scenarios the complainant is required to be physically examined by the Ld. Magistrate under Sections 256/249 of the Cr.P.C. which also clothe the Ld. Magistrate with the jurisdiction to dismiss the complaint in the absence of the complainant. vii) On the above scores Ld. Counsel for the petitioner has argued that the complaint and the no-objection filed on behalf of the OP2 deserve to be rejected in limine. viii) It is also evident that important facts have been suppressed in the complaint and, also on that score the criminal proceeding is not maintainable. ix) Shri Sanyal relies upon the following decisions in support of his argument:- Associated Cement Company Ld. Vs. Keshava Anand (reported in 1998 SCC Criminal page 475 at para 19); Sanjay Bansal Vs. Jawaharlal Bats (reported in 2009 volume SCC criminal page 262 at paras 8 & 9); Janki Vashdeo Bhojwani and Ors. Vs. Indus Ind Bank Limited and Ors. (reported in AIR 2005 SC page 439 at paras 12, 13, 14 & 22); Gangadhar Janardan Aahtre Vs. State of Maharashtra (reported in AIR 2004 Supreme Court page 4753 at paras 6, 9 & 13); Shri Sanyal, therefore, prays for quashing of the impugned proceeding. This Court notices that in spite of filing affidavit-of-service none has appeared on behalf of the OP nos. 1,2 & 3 to oppose the application. Heard the parties. Considered the materials on record. At the very outset this Court notices that the ingredients of the dispute between the parties is civil in nature. It has not been controverted before this Court that in terms of the 1987 Cooperative Rules both the OP2 and her husband were required to take admission in the said Society only in the event they were not simultaneously members of another co-operative society. Therefore, in view of their simultaneous membership of two co-operative societies, the BOD of the said Society represented by the present petitioners acted under the 1987 rules to disqualify the OP2 and her husband from membership. It is also noticed by this Court that the OP2 and her husband acted in furtherance of settlement of the dispute by accepting a cheque of Rs. It is also noticed by this Court that the OP2 and her husband acted in furtherance of settlement of the dispute by accepting a cheque of Rs. 6 lakhs towards part payment of the final amount of Rs.12,09,750. It is further noticed by this Court that even after accepting the amount of Rs. 6 lakh the OP2 and her husband did not tender their resignation from the roll of members of the said society and, thereby frustrated the final settlement. To the mind of this Court in the wake of such civil disputes having cropped up between the parties, the OP2 caused the criminal complaint to be filed as an afterthought. This Court also noticed that the charges of criminal trespass, wrongful restraint and extortion have been lodged against the petitioners without the essence of such charges found present in the facts and circumstance of the dispute. This Court notices that the petitioners acted as the office-bearers of the said Society in discharge of their official functions without any mens rea imputed to a criminal act qua the OP2 and OP3. Similarly, from the facts and circumstances it does not emerge that the petitioners wrongfully represented to the OP2 and the OP3 at the threshold warranting their implication in a charge of cheating under Section 420 IPC. It is further noticed that in effect the OPs, recognising the civil (emphasis supplied) nature of the dispute, carried the same in an intra-court mandamus appeal after the Hon’ble Single Bench dismissed the WP No. 1125(W) of 2012. Having also lost in the mandamus appeal being MAT 835 of 2013 the OPs approached the Ld. ARCS who, ultimately, dismissed the Dispute Case on 5th February, 2013. In the light of the abovenoted conspectus of facts and circumstances the further fact cannot be lost sight of that police investigation culminated in a final report citing the nature of the dispute to be civil in nature. To the mind of this Court the OPs have indulged in forum shopping with an intention to harass the petitioner. The Ld. Magistrate while allowing the protest/no-objection petition of the Constituted Attorney of the de facto complainant did not have the benefit of considering in his order dated 4th February, 2013 passed in C-105/2010 the several legal remedies applied for by the OPs. The Ld. Magistrate while allowing the protest/no-objection petition of the Constituted Attorney of the de facto complainant did not have the benefit of considering in his order dated 4th February, 2013 passed in C-105/2010 the several legal remedies applied for by the OPs. This Court also finds substance in the argument of Shri Sanyal that for issuance of process under Section 200 Cr.P.C. the OP2/complainant ought to have been examined in person by the Ld. Magistrate empowered to taken cognizance. In the backdrop of the above discussion this Court finds it fit to quash the proceeding in Case No. C/105 of 2010 arising out MP case No. 219 of 209 presently pending before the Ld. Judicial Magistrate Bidhannagar qua the petitioners. CRR 858 of 2013 is thus allowed. There will be, however, no order as to costs. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.