Arup Lal Mukhopadhyay v. Shanakar Chandra Dasgupta
2015-01-16
R.K.BAG
body2015
DigiLaw.ai
JUDGMENT : R.K. Bag, J. The Petitioners have filed this Revisional Application under section 482 of the Code of Criminal Procedure, 1973 for quashing the proceedings being Complaint Case No. 1450 of 2007 under sections 420/468/471/120B of the Indian Penal Code pending before the Court of the learned Metropolitan Magistrate, 13th Court, Calcutta. 2. The Petitioner No. 1 was the Manager of M/s. Wilson Surveyors and Adjusters Pvt. Limited. The Petitioner No.2 was the Managing Director of M/s. Wilson Surveyors and Adjusters Pvt. Limited. The Petitioner No.4 is the Manager, Claims and Recovery of M/s. Wilson Surveyors and Adjusters Pvt. Limited. The Petitioner No.3 is the Deputy General Manager of M/s. Wilson Surveyors and Adjusters Pvt. Limited. The Opposite Party was also the Director of M/s. Wilson Surveyors and Adjusters Pvt. Limited. The Opposite Party filed the petition of complaint against the Petitioners on the allegation that the Petitioners used to prepare fake reports on behalf of the parties for making insurance claim. The present Petitioners preferred two revisional applications before the High Court for quashing the criminal proceeding started against the Petitioners by the Opposite Party. However, the said Revisional Applications being CRR No. 1425 of 2007 and CRR No. 3487 of 2007 were disposed of on 20th May, 2011 without quashing the instant criminal proceeding pending against the Petitioners. 3. It is submitted by learned Counsel of both parties that the Opposite Party started one suit against some of the Petitioners and others claiming damage and compensation for malicious prosecution. The Hon’ble Single Bench of this Court by an order dated 10th March, 2011 passed in C.S. No. 240 of 2008 gave direction for deleting the names of the shareholders of the Company from the said suit as there was no cause of action against those shareholders. 4. The Opposite Party and his son challenged the said order passed by Hon’ble Single Judge before the Hon’ble Division Bench by preferring A.P.O No. 151 of 2011, A.P.O. No. 238 of 2012 and A.P.O. No. 239 of 2012. It appears from the order passed by the Hon’ble Division Bench on 4th March, 2013 that both parties settled their dispute amicably between themselves and the present Opposite Party accepted the Pay Order of Rs.20,00,000/- from the concerned Company.
It appears from the order passed by the Hon’ble Division Bench on 4th March, 2013 that both parties settled their dispute amicably between themselves and the present Opposite Party accepted the Pay Order of Rs.20,00,000/- from the concerned Company. It is recorded by the Hon’ble Division Bench that the Pay Order is accepted by the party in full and final settlement of the claim. The Hon’ble Division Bench has observed in the order dated 04.04.2013 as follows : “Parties agree, there would be no further litigation between themselves and they will withdraw all the civil proceedings and criminal complaints pending before the appropriate Courts.” 5. Mrs. Rituparna Ghosh, learned Counsel appearing on behalf of the Petitioners, contends that the Opposite Party being the complainant of Complaint Case No. 1450 of 2007 did not withdraw the complaint pending before the Court of learned Metropolitan Magistrate, Calcutta, in spite of receiving Rs. 20,00,000/- by way of amicable settlement of the dispute between the parties. Mrs. Ghosh further submits that the Petitioners had to invoke the Contempt Jurisdiction of this Court for intentional violation of the consent order dated 04.03.2013 by the Opposite Party. By disposing of the Contempt Application being C.C. No. 85 of 2013 on 12th August, 2013 the Hon’ble Division Bench observed as follows : “The parties have settled their discord in the civil side. The selfsame cause of action gave rise to the criminal litigation. The applicant is given liberty to proceed before the appropriate court for quashing of those two proceedings.” 6. By pointing out the above observation passed by the Hon’ble Division Bench in the contempt proceeding, Mrs. Ghosh submits that the Opposite Party did not withdraw the two criminal proceedings being Complaint Case No.35175 of 2008 and Complaint Case No. 1450 of 2007 pending before the Court of learned Metropolitan Magistrate, Calcutta. According to Mrs. Ghosh, both the proceedings are liable to be quashed by invoking inherent power of this Court under section 482 of the Code of Criminal Procedure, because both parties agree to withdraw all civil proceedings and criminal complaints before the appropriate Court of law when the dispute was settled amicably between the parties before the Hon’ble Division Bench of this Court. The further contention of Mrs.
The further contention of Mrs. Ghosh is that the Opposite Party changed his mind after changing learned Counsel appearing on behalf of the Opposite Party before the Hon’ble Division Bench on 4th March, 2013 and gave go-bye to the compromise effected between the parties after receiving Rs.20,00,000/- from the Company of the Petitioners. Mrs. Ghosh has urged this Court to consider that the Opposite Party may be directed to return Rs. 20,00,000/- to the Company of the Petitioners if the Opposite Party does not withdraw the complaint being Complaint Case No. 1450 of 2007 pending against the Petitioners before the Court of learned Metropolitan Magistrate, Calcutta. 7. Mr. L. Vishal Kumar, learned Counsel appearing on behalf of the Opposite Party, submits that the Opposite Party has no authority under the law to withdraw Complaint Case No. 35175 of 2008 which was initiated by learned Metropolitan Magistrate under section 340 of the Code of Criminal Procedure, 1973. Mr. Kumar further submits that the subject matter of Complaint Case No. 1450 of 2007 is totally different from the subject matter of the civil suit, wherein the dispute between the parties was settled. According to Mr. Kumar, the Opposite Party has no obligation under the law to withdraw Complaint Case No. 1450 of 2007 pending against the Petitioners before the Court of learned Metropolitan Magistrate, Calcutta. Mr. Kumar also submits that the Petitioner Nos. 3 and 4 were not parties to the suit and, as such, they are not entitled to get the benefit of order passed by the Hon’ble Division Bench, so far as the withdrawal of the complaint in the criminal proceedings is concerned. 8. It is pertinent to point out that the criminal proceeding pending against the Petitioners being Complaint Case No. 1450 of 2007 was not quashed by the Hon’ble Single Judge of this Court while disposing of CRR No. 1425 of 2007 and CRR No. 3487 of 2007 on 20th May, 2011. 9. The proposition of law laid down by the Supreme Court of India in the case of “Gian Singh v. State of Punjab & Anr”.
9. The proposition of law laid down by the Supreme Court of India in the case of “Gian Singh v. State of Punjab & Anr”. reported in (2013) 1 SCC (Cri) 160 is that the High Court may exercise the inherent power to quash the criminal proceeding or F.I.R. or complaint in respect of offences arising from commercial, financial, mercantile, civil, partnership or the offences arising out of matrimonial dispute relating to dowry or family dispute, where the wrong is basically private or personal in nature and the dispute is amicably settled between the victim and the offender, because continuation of the criminal proceeding in such case would tantamount to abuse of the process of the Court and against the interest of justice. In the instant case the Opposite Party, being the complainant of Complaint Case No. 1450 of 2007, is not willing to settle the dispute with the Petitioners amicably at this stage and as such, I am not in a position to invoke the inherent power of this Court under section 482 of the Code of Criminal Procedure for quashing the Criminal Proceeding pending against the Petitioners. The proposition of law laid down by the Apex Court in the case of “Gian Singh v. State of Punjab & Anr” (supra) can be made applicable only if both parties are willing to settle the dispute amicably between the parties. Since the dispute between the parties was settled before the Hon’ble Division Bench of this High Court and since Rs.20,00,000/- was paid by the Company of the Petitioners to the Opposite Party before the Hon’ble Division Bench of this Court, I am of the view that order of repayment of the amount of Rs.20,00,000/- to the Company of the Petitioners by the Opposite Party should not be passed by this Court sitting in a Single Bench exercising Revisional Jurisdiction under section 482 of the Code of Criminal Procedure. The Petitioners are at liberty to approach the appropriate forum for direction to the Opposite Party to refund Rs.20,00,000/- to the Company of the Petitioners. 10. With the above observation, this Revisional Application, being CRR No.3912 of 2013, is disposed of. Since the Revisional Application has already been disposed of today, the application for interim order being CRAN No. 3265 of 2014 has become in-fructuous and the same is also disposed of accordingly.
10. With the above observation, this Revisional Application, being CRR No.3912 of 2013, is disposed of. Since the Revisional Application has already been disposed of today, the application for interim order being CRAN No. 3265 of 2014 has become in-fructuous and the same is also disposed of accordingly. Urgent certified xerox copy of the judgment, if applied for, be given to the parties expeditiously after compliance with all legal formalities.