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2014 DIGILAW 166 (TRI)

Sanjib Sarkar v. State of Tripura

2014-05-06

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- By this intra-court appeal, the judgment and order dated 29.05.2012 by the learned Single Judge delivered in W.P.(Crl.) No. 01/2012 has been called in question. By the said judgment and order, the writ petition filed by the appellant herein for quashing the First Information Report (FIR) registered as West Agartala P.S. Case No. 08/2010 under Section 420 of the IPC and the chargesheet dated 26.06.2010, submitted pursuant to the investigation of the said FIR and also the orders dated 04.11.2010 and 17.01.2012, whereby the Addl. Chief Judicial Magistrate, West Tripura, Agartala took cognizance of the offence under Section 420 of the IPC, pursuant to the said chargesheet and rejected the prayer of discharge respectively, has been dismissed. 2. In short, the facts that would be required for consideration of the challenge may be introduced at the outset. Based on the FIR filed by the respondent No. 2, West Agartala P.S. Case No. 08/2010 under Section 420of the IPC was registered. The respondent No. 2 had disclosed in the said FIR that the appellant, the Business Development Manager (BDM) of Adis Marketing Pvt. Ltd. alongwith another Utpal Dutta, Vice Chairman, Silchar Division of the said Adis Marketing Pvt. Ltd., had approached the respondent No. 2 and two others to take dealership of different articles of daily use, produced and marketed by the said Adis Marketing Pvt. Ltd.. They had asked the informant and two others, namely Pyari Mohan Sharma and Arup Kumar Roy to deposit certain amount and, accordingly, the respondent No. 2 deposited ` 50,000 and Pyari Mohan Sharma deposited Rs. 49,000 to the appellant. Another person, namely Arup Kumar Roy had deposited Rs. 25,000 in the account of Utpal Dutta. According to the respondent No. 2, he was induced having a mind of cheating him finally and thus despite making the required deposit he was not appointed as the dealer of the said company, even after several meetings. 3. On completion of the investigation, the charge-sheet was filed by the police. Then the Chief Judicial Magistrate, West Tripura, Agartala, by the order dated 04.11.2010 had taken cognizance of the offence punishable under Section 420 of the IPC and issued process against the appellant. The appellant appeared in response to the said court process and obtained the bail. 3. On completion of the investigation, the charge-sheet was filed by the police. Then the Chief Judicial Magistrate, West Tripura, Agartala, by the order dated 04.11.2010 had taken cognizance of the offence punishable under Section 420 of the IPC and issued process against the appellant. The appellant appeared in response to the said court process and obtained the bail. Subsequently, the appellant had filed a petition for discharging him from the liability of the case, but the said prayer was rejected by the order dated 17.01.2012. The said order has been put under challenge by the petition filed under Article 226 of the constitution. 4. Having perused the impugned order dated 17.01.2012, it appeared to the learned single judge that on the materials the chargesheet has been filed or cognizance has been taken it would not be appropriate to scuttle the trial. On such basis the writ petition filed by the appellant has been dismissed. 5. Mr. A. Bhowmik, learned counsel appearing for the appellant has quite strenuously submitted that neither from the contents of the FIR or from the materials formed part of the Final Police Form, no case against the appellant under Section 420 of the IPC is or can be made out and, hence, the FIR, the chargesheet and the order taking cognizance as well as the order rejecting the prayer for discharge are liable to be quashed. According to Mr. Bhowmik, in absence of the Company, the appellant cannot be prosecuted. The appellant has no power to enter into an agreement for the company of his own and he had accepted the payment from the complainant for the company to grant dealership, but ultimately the company failed to appoint the complainant as the dealer or to supply the goods. As such, it is a breach, remedy for which is available in the civil action. Mr. Bhowmik, learned counsel has further submitted that the communications/correspondences between the complainant and the respondent No. 4, now struck off, would show that the complainant has submitted the security deposit through the appellant. Mr. Bhowmik has further made an attempt to show that in the FIR it has been urged by the complainant, the respondent No. 2, for recovery of the security deposit. According to Mr. Bhowmik, learned counsel, the controversy "is purely civil in nature". Again, referring to the provisions of Section 420 of the IPC, Mr. Mr. Bhowmik has further made an attempt to show that in the FIR it has been urged by the complainant, the respondent No. 2, for recovery of the security deposit. According to Mr. Bhowmik, learned counsel, the controversy "is purely civil in nature". Again, referring to the provisions of Section 420 of the IPC, Mr. Bhowmik, learned counsel appearing for the appellant has contended that there is no representation with intention to deceive the complainant by the appellant and in absence of such representation there is no foundation to take cognizance under Section 420 of the IPC. On reference to a decision of the apex court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr., reported in (2000) 4 SCC 168 , Mr. Bhowmik has contended that in determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. Mr. Bhowmik, learned counsel appearing for the appellant has repeatedly urged this court that no such intention to defraud the respondent No. 2 is available either from the FIR or from the chargesheet. He has further questioned the legality of the impugned judgment on the ground that absence of the principal Company, the prosecution cannot run against the appellant. 6. In Iridium India Telecom Ltd. Vs. He has further questioned the legality of the impugned judgment on the ground that absence of the principal Company, the prosecution cannot run against the appellant. 6. In Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors., reported in (2011) 1 SCC 74 , it has been held by the apex court that a body corporate can no longer claim immunity from the criminal prosecution on the ground that the body corporate being the juristic person is incapable of having the necessary mens rea for a criminal offence. However, Mr. Bhowmik, learned counsel appearing for the appellant has acceded that the apex court in Iridium India Telecom Ltd. (supra) has also held that by way of forming a legal fiction the criminal intent of a person or group or persons who guide the business of the company would be imputed to the body corporate. 7. By filing additional affidavit in the appeal, the appellant has placed some additional materials inclusive of the emails sent by him and the reply from the Managing Director, to show that he had no fraudulent intention to deceive the respondent No. 2. 8. Finally, Mr. Bhowmik, learned counsel appearing for the appellant has criticised the impugned judgment inasmuch as its foundation is based on misreading of Bowrings Fine Art Auctioneers Private Limited & Ors. Vs. Central Bureau of Investigation & Anr., reported in (2011) 11 SCC 491 . According to Mr. Bhowmik, the ratio laid down in the above decision has no universal application. In Bowrings Fine Art Auctioneers Private Limited (supra), the apex court has held that: It is evident from the record that after registration of the first information report CBI made detailed investigation in the matter and filed charge-sheet for the offence punishable under Section 25(1) read with Section 3 of the Act. The trial court having taken cognizance of offences framed charges against all the concerned. The appellants have even filed discharge application before the trial court on 21.8.2006. It is not clear from the averments made in the writ petition as to the result of the said application. On the facts and in the circumstances, it is not possible at this stage to quash the very first information report, since much water has flown after registration of the FIR by CBI. 9. Appearing for the State, Mr. It is not clear from the averments made in the writ petition as to the result of the said application. On the facts and in the circumstances, it is not possible at this stage to quash the very first information report, since much water has flown after registration of the FIR by CBI. 9. Appearing for the State, Mr. R.C. Debnath, learned counsel has submitted that in catena of decisions, such as (i) State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors., reported in AIR 1982 SC 949 , (ii) State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335 and (iii) Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., reported in (1998) 5 SCC 749 , the apex court has consistently held that criminal action can be interfered with and quashed by the High Court in exercise of its jurisdiction either under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure when it would be apparent on reading of the First Information Report or the Final Police Report that there is no material to form the basis of criminal action. The inquiry, as such, has been restricted to reading on the prima facie materials to prosecute the person who seeks the quashing. No further inquiry, time and again the Supreme Court has held, can be embarked on for that purpose. 10. In order to appreciate the respective contentions of the counsel for the parties, this court has scrutinised the records so placed alongwith the writ petition and with the additional affidavit filed by the appellant. No doubt, even though Bowrings Fine Art Auctioneers Private Limited (supra) does not lay any universal rule, but it has held that when the Final Police Form (the chargesheet) is filed, the First Information Report is rendered to a piece of material, as by means of the detailed investigation further materials are collected. On perusal of the FIR, it cannot be said that there is no material of inducement and there is no prima facie material of inducement or cheating. To avoid prejudice to the parties, we are refrained from making elaborate observations in this regard. Apart that, a preliminary scrutiny of the records was carried out by the Addl. On perusal of the FIR, it cannot be said that there is no material of inducement and there is no prima facie material of inducement or cheating. To avoid prejudice to the parties, we are refrained from making elaborate observations in this regard. Apart that, a preliminary scrutiny of the records was carried out by the Addl. Chief Judicial Magistrate, West Tripura, Agartala, while rejecting the prayer for discharge from the criminal liability. The other grounds of objection as resorted by the appellant are that by not filing the chargesheet against the company, the appellant cannot be prosecuted, is absolutely unsustainable. In Iridium India Telecom Ltd. (supra), what the apex court has enunciated is that the body corporate can no longer claim immunity from the criminal prosecution on the ground that the body corporate being the juristic person is incapable of having the necessary mens rea for a criminal offence. In this regard, we are of the considered opinion that if it is found by the trial court that the company had the mens rea in commission of the offence, the company or its other officers may be made accused for facing the trial under Section 319 of the Code of Criminal Procedure. But, the appellant cannot derive any benefit for non-arraignment of the body corporate. By placing reliance on the additional materials, it may be so that on the veracity of those materials the appellant would be relieved of the criminal liability. It cannot be stated so with certainty at this stage. We are constrained to hold that in a proceeding, challenging the criminal action against the appellant, under Section 226 of the Constitution, this court cannot look into such documents/records produce beyond the police, which may be very material for the defence in the trial, if duly introduced in the evidence by the accused. 11. A larger Bench of the apex court in Vijayander Kumar & Ors. Vs. State of Rajasthan & Anr., reported in (2014) 3 SCC 389 , has held that if the complaint discloses only a simple case of civil dispute between the parties and there is absolutely absence of requisite averments to make out a case of cheating, the criminal proceeding can be quashed. Vs. State of Rajasthan & Anr., reported in (2014) 3 SCC 389 , has held that if the complaint discloses only a simple case of civil dispute between the parties and there is absolutely absence of requisite averments to make out a case of cheating, the criminal proceeding can be quashed. At the same time, in Vijayander Kumar (supra), the Supreme Court has succinctly held that: At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at the appropriate stage. 12. There cannot be any dispute that when a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition has been supported by the several judgments of the apex court noted in para 16 of Ravindra Kumar Madhanlal Goenka Vs. Rugmini Ram Raghav Spinners (P) Ltd., reported in (2009) 11 SCC 529 . 13. Having held so, we do not find any infirmity in the finding of the learned Single Judge and as consequence thereof we dismiss this appeal. However, there shall be no costs.