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2014 DIGILAW 317 (CAL)

Jitendra Kumar Mohanlal v. State of West Bengal

2014-04-03

SUBRATA TALUKDAR

body2014
JUDGMENT Subrata Talukdar, J. 1. This is a petition under Section 397/401 read with Section 482 of the Code of Criminal Procedure filed by two of the accused persons in Complaint Case No. C/243/2012 under Sections 379/411/420/423/467/468/474/120B of the Indian Penal Code presently pending before the learned 14th Metropolitan Magistrate, Calcutta. By order dated 10th April, 2012 and 17th July, 2012 cognizance was taken against all the accused persons and process was issued. Aggrieved thereby the present accused persons as petitioners have taken out this Criminal Revisional Application numbered CRR 3023 of 2012. 2. The Opposite Party No.2 is the de facto complainant. 3. The brief facts of the case are as follows:- (i) The opposite party No.2 was the registered share holder in respect of 200 equity shares of Rs. 10 each bearing share certificate numbers and distinctive numbers respectively of Jindal Ferro Alloys Limited. (ii) That in the year 1996 the said 200 shares were misplaced/lost from the custody of the opposite party no.2. The incident was reported to the then Jindal Ferro Alloys Limited at its registered office in Delhi. The opposite party no. 2 also requested for non-transfer of the said shares in favour of third parties and, for issuance of duplicate shares in lieu of the said misplaced/lost shares. (iii) The opposite party No.2 was informed that one M/s Globe Stocks and Securities Limited (which is the accused no.1 in the criminal complaint) had claimed the said 200 shares and lodged the same for transfer in their favour. According to the O.P. No. 2, 100 shares out of the 200 shares were wrongfully transferred in favour of M/S Globe Stocks and Securities Limited. The O.P. No.2 alleges forgery in the transferred documents and further alleges that he has been cheated of his rightful ownership to the property in question, viz., 100 shares. (iv) The remaining 100 shares were also illegally and fraudulently processed by the accused no.1. M/s Globe Stocks and Securities Limited (for short M/s Globe Stocks) and the O.P. No. 2 alleges forgery and cheating on that score too. (v) The O.P. No.2 thereafter knocked on the doors of different for a for relief on account of the said 200 shares. M/s Globe Stocks and Securities Limited (for short M/s Globe Stocks) and the O.P. No. 2 alleges forgery and cheating on that score too. (v) The O.P. No.2 thereafter knocked on the doors of different for a for relief on account of the said 200 shares. The O.P. No.2 filed a complaint before the Consumer Disputes Redressal Forum against Jindal Strips Limited which, upon the merger and/or amalgamation with Jindal Ferro Alloys Limited, is presently styled as M/S Nalwa Sons Investment Limited. The said complaint was dismissed on 21st May, 2002. (vi) Thereafter the O.P. No.2 filed Civil Suit No. 142 of 2002 against Jindal Strips/ NSIL and M/s Globe Stocks & Securities Limited which was dismissed vide order dated 25th January, 2005 by the learned 3rd Civil Court (Jr. Division) at Howrah being Title Suit No. 142 of 2002. The subsequent Title Appeal preferred by the O.P. No.2 before the learned First Additional Fast Track Court, Howrah against the judgment dated 25th January, 2005 being Title 4. Appeal No. 32 of 2005 was also dismissed on 25th January, 2010. (vii) The O.P. No.2 also carried the proceedings in respect of the selfsame shares in question before the Company Law Board at Delhi being Company Petition No. 13/111/10. The learned Company Law Board vide its order dated 28th February, 2011 directed Jindal Strips / NSIL to cancel the transfer of the shares in question in favour of any third Party and issue fresh share certificates in favour of the O.P. No.2. (viii) The order of the learned Company Law Board dated 28th February, 2011 was challenged before the Hon’ble Delhi High Court being Company Appeal (SB) No. 15 of 2011 and stay was granted of the order dated 28th February, 2011 vide order dated 06th April, 2011. The petitioners annex the copies of the orders as passed from time to time in CRR No. 3023 of 2012. (ix) Similarly, the Hon’ble High Court of Punjab and Haryana vide order dated 29th April, 2011 in Company Appeal No. 14 of 2011came into seisin of the share dispute between O.P. No.2 and M/s Jindal Strips / NSIL ( M/s Nalwa Sons Investment Limited) being the erstwhile Jindal Ferro Alloys Limited. (ix) Similarly, the Hon’ble High Court of Punjab and Haryana vide order dated 29th April, 2011 in Company Appeal No. 14 of 2011came into seisin of the share dispute between O.P. No.2 and M/s Jindal Strips / NSIL ( M/s Nalwa Sons Investment Limited) being the erstwhile Jindal Ferro Alloys Limited. (x) It is pertinent to reiterate that during pendency of the dispute Jindal Ferro Alloys Limited was merged with Jindal Strips Limited which is presently known as M/s Nalwa Sons Investment Limited (jointly called Jindal Strips / NSIL). Subsequently Jindal Strips/ NSIL was demerged into two companies namely Jindal Strips and Jindal Steel and Power Limited (for short JSPL). (xi) According to the petitioners the said 200 shares stood transferred in favour of one Mr. Sunil Hardesmal Kanjwani on the basis of duly executed transfer deed dated 04th October, 1996 by the opposite party no.2. The said Sri Kanjwani became the owner of the said 100 shares bearing certificate and distinctive numbers with effect from 17th October, 1996. (xii) Further, according to the petitioners the Opposite Party No.2 wrote his first letter to Jindal Strips/ NSIL on 04th August, 1997, that is after a gap of one year from the date of transfer of shares of Jindal Strips/ NSIL in favour of Sri Kanjwani. Jindal Ferro Alloys Limited, the predecessor company of Jindal Strips/NSIL denies having received any letter from the O.P.No.2 on the subject prior to 4th August, 1997, although the Opposite Party No.2 asserts that the loss of the share certificates was first intimated by him to the company on 9th September, 1996. (xiii) Thereafter, on 24th June, 1998, Jindal Strips/ NSIL received the letter dated 19th June, 1998 addressed to its predecessor company Jindal Strips from M/s Globe Stocks informing Jindal Ferro Alloys Limited that the 100 shares of the opposite party no.2 are lying in their custody. (xiv) According to the said letter the shares were delivered to M/s Globe Stocks by one of their underbrokers namely, M/s Jwala Consultant. The said shares were lying non-transferred due to bad delivery. M/s Globe Stocks sought details of the O.P. No.2 from M/s Jindal Ferro Allows Limited for the purpose of dealing with him directly. (xv) It was further informed by M/s Globe Stocks that another 100 shares were also delivered to them by M/s Jwala Consultant. The said shares were lying non-transferred due to bad delivery. M/s Globe Stocks sought details of the O.P. No.2 from M/s Jindal Ferro Allows Limited for the purpose of dealing with him directly. (xv) It was further informed by M/s Globe Stocks that another 100 shares were also delivered to them by M/s Jwala Consultant. However, the said shares already stood transferred in favour of a third party. (xvi) On 17th November, 1998 M/s Jindal Strips/ NSIL wrote to the O.P. No.2 with copy to M/s Globe Stocks annexing copy of letter dated 19th June, 1998 and advising the O.P.No.2 to mutually sort out the matter of the 100 shares claimed to be lying in the custody of M/s Globe Stocks. (xvii) The petitioners allege that in spite of such information the O.P. No.2 never contacted M/s Globe Stocks or M/s Jwala Consultant. (xviii) The petitioners have furnished the correspondence with O.P. No.2 and from M/s Globe Stocks by way of annexures to CRR 3023 of 2012. (xix) In the above back drop the petitioners allege that after a delay of 14 years from the purported loss/misplacement of the shares, the O.P. No.2, after exhausting his remedies before several fora, filed the Complaint Case No0. C/243/2012 before the learned Additional Chief Metropolitan Magistrate at Kolkata. In the said complaint, along with the petitioners, 14 other persons were arrayed as the accused including M/s Globe Stocks, as the accused No.1. (xx) The said complaint was transferred to the Court of the learned 14th Metropolitan Magistrate, Kolkata who took cognizance of the same vide order dated 10th April, 2012 and issued process vide order dated 17th July,2012 under Sections 379/411/420/423/467/468/474/120B of the Indian Penal Code. (xxi) Aggrieved thereby the present petitioners have filed CRR 3023 of 2012 praying for quashing of the proceedings. 5. Sri Basu, learned Senior Counsel submits that this is a dispute which is purely civil in nature. The facts in this case, according to him, amply demonstrates that there is no mens rea involved on the part of the present petitioners qua the 200 lost/misplaced shares in question. 6. Sri Basu submits that the course of events pleaded in CRR 3023 of 2012 are indicative of the fact that a pure civil lis cropped up between the parties in respect of the shares in question. 6. Sri Basu submits that the course of events pleaded in CRR 3023 of 2012 are indicative of the fact that a pure civil lis cropped up between the parties in respect of the shares in question. The O.P. No.2, after unsuccessfully trying his recourse before several civil for a and Courts has, by way of a counterblast lodged the present criminal complaint after a gap of nearly 14 years. 7. Sri Basu also urges this Court to take notice of the Settlement Agreement (for short the Agreement) arrived at between the parties dated 24th January, 2014 under aegis of the Delhi High Court Mediation and Conciliation Centre. It is, inter alia, stated in the Agreement as follows:- “That VKS (the Opposite Party No.2) unconditionally, irrevocably undertakes that he will also withdraw /take requisite steps to cancel/quash GDE No. 1883 lodged by him at Howrah Police Station on 21st May, 2010 and withdraw the criminal proceedings bearing case number C/243/2012 against Jindal Group and GSSL and their respective chairpersons, directors, promoters employees and officers etc”. 8. The copy of the said Settlement Agreement is produced before this Court. 9. The Settlement Agreement further provides as follows:- a) That with regard to 100 shares which were lying with M/s Globe Stocks, the Jindal Group has received a no objection from M/s Globe Stocks for issuance of duplicate/new share certificates along with all corporate benefits in favour of the O.P.No.2. The O.P. No.2 has also submitted an indemnity bond and other necessary documents required for this purpose to the Jindal Group; b) That with regard to the remaining 100 shares the Jindal Group have agreed to compensate the O.P. No.2 by paying Rs. 7.5 lakhs as full and final settlement; c) That the O.P.No.2 unconditionally and irrevocably undertakes upon receipt of the benefits/compensation in respect of the 200 shares to withdraw the present complaint proceedings pending before the learned 14th Metropolitan Magistrate being case No. c/243/2012; d) Both the parties unconditionally and irrevocably undertake to withdraw all other pending litigation between them and against their men and officers on the basis of the Settlement Agreement at their own costs. Both parties further unconditionally and irrevocably discharge each other from all present and future liabilities in connection with the said dispute. The copy of the Settlement Agreement is made a part of this Judgment. 10. Both parties further unconditionally and irrevocably discharge each other from all present and future liabilities in connection with the said dispute. The copy of the Settlement Agreement is made a part of this Judgment. 10. Sri Basu submits that in the light of the ratio laid down in Gian Singh Vs. State of Punjab and Anr. (reported in (2012) 10 Supreme Court Cases 303) the present case is fit to be quashed in exercise of the power of this Court under Section 482 of the Cr.P.C by taking note of the compromise arrived at between the parties. He argues that the present criminal case stands on a predominantly civil footing and no element of criminality qua the petitioners can be attached. He submits that further continuance of the criminal proceeding would tantamount to the abuse of the process of law in spite of the settlement arrived at between the parties. 11. Sri Basu also relies upon a judgment of the of Hon’ble Apex Court in Criminal Appeal No. 517 of 2014 in the matter of CBI, ACB Mumbai Vs. Narendra Lal Jain & Ors. 12. In Narendra Lal Jain on the basis of two FIRs separate charge sheets were filed and Special Cases no. 15 of 95 and 20 of 95 were registered before the learned Special Court, Mumbai under Section 120B, 420 IPC read with Sections 5(2) and 5(1) (d) of the Prevention of Corruption Act, 1947 corresponding to Section 13 (2) and read with Section 13 (1) (d) of the Prevention of Corruption Act, 1998 ( for short P.C. Act) 13. During pendency of the criminal proceeding the Bank instituted a suit for recovery of the amounts claimed from the accused persons who were impleaded as respondents. The said suits were disposed of in terms of Consent Decrees dated 23rd April, 2001. It was recorded in the said Consent Decree as follows:- “10. Agreed and declared that dispute between the parties hereto were purely and simply of civil nature and on payment mentioned as aforesaid made by the Respondents the appellants have no grievance of whatsoever nature including of the CBI complaint against the Respondents.” 14. It was recorded in the said Consent Decree as follows:- “10. Agreed and declared that dispute between the parties hereto were purely and simply of civil nature and on payment mentioned as aforesaid made by the Respondents the appellants have no grievance of whatsoever nature including of the CBI complaint against the Respondents.” 14. On the dismissal of the discharge application filed by the accused persons by the learned Trial Court, the same was challenged before the High Court and the High court negated the view of the learned Trial court and set aside the criminal proceeding. Aggrieved thereby the CBI approached the Hon’ble Apex Court. 15. Sri Basu points out that the Hon’ble Apex Court after considering several judicial authorities on the issue arrived at the following findings:- “10. In the present case, as already seen, the offence with which the accused–respondents had been charged are under Section 120B/420 of the Indian Penal code. The Civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the notice of the Court. While the offence under Section 420 IPC is compoundable the offence under Section 120-B is not. To the latter offence the ratio laid down in B.S. Joshi (Supra) and Nikhil Merchant (Supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (Supra) (Para 61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC. 11. In the present case, having regard, to the fact that the liabililty to make good the monetary loss suffered by the bank had been mutually settled between the parties and accused had accepted the liability in the regard. The High Court had thought it fit to invoke its power under Section 482 Cr.P.C. We do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. Section 482 of the Code inheres in the High court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C. 12. We, therefore, decline to interfere with the impugned order dated 28.10.2005 passed by the High Court and dismiss this appeal. We, however, make it clear that the proceedings in Special Case No. 15/95 and 20/95 stands interfered with by the present order only in respect of accused-respondents Narendra Lal Jain and Ramanlal Lalchand Jai.” 16. Sri Basu submits that the observations of the Hon’ble Apex Court in Narendra Lal Jain are apposite to the facts of this case. 17. Sri Ranjit Roy, appearing on behalf of the opposite party No. 2 places before this Court the Affidavit of Consent affirmed by the Opposite Party No.2 in which the following is stated :- “8. In view of the said compromise and the amicable settlement arrived between the said parties as indicated herein before there is no chance of recording a conviction against these accused and the entire exercise of the trial is destined to be an exercise in futility and the continuance of further proceedings as against the petitioner Nos. 1 and 2 would be an abuse of process of Court. 9. I humbly submit before this Hon’ble Court that I have no objection of any kind if the proceeding being case No. C243 of 2012 under Section 379/411/420/423/467/468/474/120B of the Indian Penal Code now pending in the Court of the learned Metropolitan Magistrate 14th Court, Calcutta is quashed qua the petitioners. 10. I further submit that I do not have any objection if the prayer made by the petitioners in CRR 3023 of 2012 are allowed. 11. This instant affidavit is being affirmed by me voluntarily and without being influenced by any one. 18. This Court notices the judgment of the Hon’ble Apex Court in CBI Vs. 10. I further submit that I do not have any objection if the prayer made by the petitioners in CRR 3023 of 2012 are allowed. 11. This instant affidavit is being affirmed by me voluntarily and without being influenced by any one. 18. This Court notices the judgment of the Hon’ble Apex Court in CBI Vs. Jagjit Singh reported in 2013 Vol.10 SCC page 686. The Hon’ble Apex Court was pleased to set aside the order of the High Court quashing the proceedings against the accused persons under Sections 120B/420/467/468/472 I.P.C. read with Section 13(1) (d) and 13 (2) of the Prevention of Corruption Act (for short the P.C. Act 1988) being the private respondents-directors of company and gave direction to the Trial Court to proceed with the matter. 19. In CBI Vs. Jagjit Singh the CBI approached the Hon’ble Apex Court after the High Court quashed the proceeding on the basis of a settlement arrived at between the parties. Setting aside the order of the High Court the Bench was pleased to hold as follows:- “15. The debt with was due to the Bank was recovered by the Bank pursuant to an order passed by the Debts Recovery Tribunal. Therefore, it cannot be said that there is a compromise between the offender and the victim. The offences when committed in relation with banking activities including offences under Sections 420/471 IPC have harmful effect on the public and threaten the well-being of the society. These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Prima facie, one may state that the bank is the victim in such cases but, in fact, the society in general, including customers of the bank is the sufferer. In the present case, there was neither an allegation regarding any abuse of process of any court nor anything on record to suggest that the offenders were entitled to secure the order in the ends of justice.” 20. While refusing to quash the proceeding having regard to the impact of the offence alleged on society in general, the Hon’ble Apex Court in Jagjit Singh had the occasion to discuss several decisions including that of Gian Singh Vs. State of Punjab as follows: “Discussing different provisions and taking into consideration the different decisions of this Court, the larger Bench in Gian Singh held as follows: (See pp. State of Punjab as follows: “Discussing different provisions and taking into consideration the different decisions of this Court, the larger Bench in Gian Singh held as follows: (See pp. 342- 343, para-61). 61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in according the guideline engrafted in such power viz.: (i) to secure the ends of Justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can bed prescribed. However, before exercise of such power, the High court must have due regard to the nature and gravity of crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like Prevention of Corruption Act or the offence committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominantly civil flavor stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute (emphasis supplied). or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute (emphasis supplied). In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High court must consider whether it would unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 21. To the mind of this Court the observations in Gian Singh case are apposite to the facts of this case. This Court must notice the predominantly civil flavor in a private transaction between the parties. Such a private transaction had resulted in personal wrong to one of the parties, viz the Opposite Party No.2, which had been subsequently settled inter se. Recognizing the civil nature of the transaction the Opposite Party No. 2 had first knocked on several civil fora and Courts for redressal of his grievances. 22. Admittedly, the present criminal complaint was filed after a huge delay of 14 years at a juncture when the opposite party no.2 failed to obtain adequate relief from the Civil fora and Courts. This Court therefore finds substance in the contention of Sri Basu that the criminal complaint initiated by the Opposite Party was in the nature of a counterblast. 23. This Court also notices the specific statements made by the Opposite Party No.2 in the Consent Affidavit filed before this court in connection with CRR 3023 of 2012. The Consent Affidavit is based on the Settlement Agreement dated 24.01.2014 which has been quoted hereinabove in this Judgment. 23. This Court also notices the specific statements made by the Opposite Party No.2 in the Consent Affidavit filed before this court in connection with CRR 3023 of 2012. The Consent Affidavit is based on the Settlement Agreement dated 24.01.2014 which has been quoted hereinabove in this Judgment. To the mind of this Court the Opposite Party No.2 on being remedied and/or compensated of the civil personal wrong claimed to be suffered by him has unconditionally agreed to withdraw the present criminal proceeding. At this juncture this Court also notices that in Narendra Lal Jain & Anr, the Hon’ble Apex Court was pleased to take note of the specific undertaking in the Consent Decree between the parties, pari materia to the facts of this Case and, grant relief to the accused-respondents. 24. To the mind of this Court the ratio of the Judgment in Jagjit Singh appear to apply with full force qua the offences that seriously impact society in general. However, in the facts of the present case, except the private nature of the civil wrong suffered by the O.P. No.2, the ripples of its impact on society in general are hard to discern. In such view of the matter this Court while respectfully noticing the ratio in Jagjit Singh’ case is of the view that the same is not squarely applicable to the facts of this case. 25. On the contrary this Court is of the further opinion that the ratio of the Hon’ble Apex Court in Gian Singh which permit quashing of criminal proceedings in circumstances where the disputes arise from commercial, financial, mercantile, civil and like transaction and the said disputes are settled on compromise between the victim and the alleged wrongdoer, it would be oppressive and not in the interests of justice to further continue with the criminal proceeding. 26. In the back drop of the above discussion this Court therefore directs that the proceedings in the Complaint Case no. C/243/2012 pending before the learned 14th Metropolitan Magistrate, Calcutta are quashed including orders dated 10th April, 2012 and 17th July 2012 qua the petitioners only. 27. CRR 3023 of 2012 is accordingly disposed of. There will be no order as to costs. Petition disposed of.