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2015 DIGILAW 143 (CAL)

Aniruddha Kar v. State of West Bengal

2015-02-20

SHIB SADHAN SADHU

body2015
Judgment Shib Sadhan Sadhu, J. 1. The petitioner by means of the present petition under Section 482 of the Criminal Procedure Code, 1973 seeks to quash the entire proceedings of the G.R. Case No. 4437 of 2011 under Sections 120B/420/465/467/468/471 of the Indian Penal Code read with Sections 65/71/73/74 of the Information Technology Act, 2000 pending before the Court of Learned Chief Metropolitan Magistrate, Calcutta. 2. A petition of complaint was filed by the complainants (O.P.No.2 & 3 herein) against the present petitioner and 5 others alleging that the complainants are the Directors of a company named MRS Management Services Private Limited. They formed a new company named M/S. MRS Agro Tech Limited at the same address. The F.I.R. named accused persons became Director, Managing Director and Officers of the newly formed company and hatched a criminal conspiracy to grab the entire company depriving the complainants of their legitimate rights. The accused persons in pursuance of such conspiracy dishonestly and fraudulently prepared various false and forged documents like share certificate, forms and applications, Board Resolution etc. using various electronic gadgets and medium like computer, scanner, printer and internet etc. They also forged the signature of the complainants and submitted those before the R.O.C., West Bengal Circle as genuine through e-mail and illegally grabbed the company of the complainants for their wrongful gain causing wrongful loss of Rs.20,00,000/- to the complainants. 3. Mr. Siladitya Sanyal, Learned Advocate, appearing on behalf of the petitioner, argued that the facts, stated in the FIR and statements recorded under Section 161 Cr.P.C. even after accepted as it is, do not constitute the alleged offence so far as the present petitioner is concerned. He further contended that the petitioner is a bonafide holder of shares of the said company. He had no role to play so far as the commission of alleged offence is concerned. At best the dispute, if any, arose out of commercial transaction and as such the essential ingredients of the offence of cheating or forgery etc. are not made out and the institution of the criminal proceedings is a sheer abuse of process of law and thus the impugned proceeding is liable to be quashed. 4. On the other hand, Mr. At best the dispute, if any, arose out of commercial transaction and as such the essential ingredients of the offence of cheating or forgery etc. are not made out and the institution of the criminal proceedings is a sheer abuse of process of law and thus the impugned proceeding is liable to be quashed. 4. On the other hand, Mr. Ayan Basu, Learned Counsel appearing on behalf of the State, argued that from the contents of the FIR and the case diary statements, specially from that of the co-accused, a prima facie case of conspiracy to cheat the complainants with the help of some forged documents and alleged offence under the Information Technology Act is made out also against the present petitioner. Therefore, no interference is warranted since the investigation is still continuing. 5. I have considered the rival contentions advanced by the Learned Counsel for the parties and perused the entire materials available on record. I have also gone through the case diary carefully. 6. In Amit Kapoor Vs. Ramesh Chander and Anr. (2013) 1 SCC (Cri.) 986 : (2012) 9 SCC 460 , the Hon’ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 7. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decision, in order to find out whether a case of quashing criminal proceedings constituted upon FIR is made out so as to warrant interference by this Court invoking inherent power under Section 482 of the Code. 8. Entire allegations as stated in the written complaint and the case diary statements as placed on record reveal that the petitioner was actively involved in the matter of formation/incorporation of the company namely MRS Agro Tech Limited and he also signed the Articles of Memorandum. It further appears that the petitioner also agreed to join the company as new Director and a photocopy of Form-32 showing appointment of the present petitioner and another accused as Director/Managing Director of the aforesaid company on 25/07/2011 duly certified by the R.O.C., West Bengal was seized. It further appears that the petitioner also agreed to join the company as new Director and a photocopy of Form-32 showing appointment of the present petitioner and another accused as Director/Managing Director of the aforesaid company on 25/07/2011 duly certified by the R.O.C., West Bengal was seized. Therefore, it is evident that there are sufficient materials, which establish prima facie commission of an offence. 9. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioner for the offence complained of against him under the Indian Penal Code and the Information Technology Act, therefore, this Court is of the opinion that, prima facie, offence under the Indian Penal Code is made out against the petitioner. 10. Inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 11. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs. 12. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.