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2015 DIGILAW 98 (CAL)

Nuruzzaman Khan v. State of West Bengal

2015-02-04

SUBRATA TALUKDAR

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JUDGMENT SUBRATA TALUKDAR, J. In this application the petitioner has challenged the charge-sheet No. 47 of 2012 dated 27th July, 2012 filed in connection with Haldia Police Station Case No. 14 of 2012 dated 19th January, 2012 in G.R. Case No. 88 of 2012 under Sections 420/406/506 IPC and pending in the court of the Ld. Additional Chief Judicial Magistrate, Haldia. The petitioner also challenges the cognizance taken by the Ld. A.C.J.M. vide order dated 6th July, 2012. The petitioner is the accused whereas the opposite party No. 2 is the defacto complainant. It has been, inter alia, alleged by the OP2-defacto complainant that he was engaged by the petitioner-accused to supervise the works of waste oil collection from merchant vessels at the Dock Complex at Haldia. The petitioner being a registered civil contractor and oils re-processor engaged the OP2 in supervising the waste oil collection from shipping vessels. The OP2-defacto complainant alleges that although for the initial period of his engagement he was paid his remuneration by the petitioner, subsequently the petitioner requested him to continue with the works on assurance of payment. However, since the OP2 was not paid the alleged amount of Rs. 15 lakhs for his services, on his demanding such money, he was threatened with dire consequences by the petitioner and having no other recourse for realisation of his dues he has filed the present complaint. The investigating officer found that a prima facie charge under Sections 420/406/506 IPC has been “well established” against the present petitioner-accused and filed the charge-sheet thereby paving the way for trial. Sri Abdur Rakib, Ld. Counsel appearing for the petitioner strenuously argues that the transaction between the parties fell in the domain of civil disputes. Sri Rakib points out that the OP2-defacto complainant had kept quiet for a period of one and half years when he did not choose to file any complaint. He urges this Court to consider that the OP2 was an authorized agent of the petitioner’s company by the name and style of M/s N.K. Company licensed to supervise the work of collecting waste oil from shipping vessels. Ld. Counsel further submits that the OP2 had received all his payments for the works done by him and the present complaint is of an omnibus nature. The present complaint fails to specify the exact amount of dues allegedly receivable by the complainant against particular periods. Ld. Counsel further submits that the OP2 had received all his payments for the works done by him and the present complaint is of an omnibus nature. The present complaint fails to specify the exact amount of dues allegedly receivable by the complainant against particular periods. Sri Rakib submits that the complaint is woefully lacking in particulars and therefore ought not to have been entertained at the threshold. It is the further contention of Ld. Counsel that in view of the formal nature of engagement of the complainant under the petitioner and the remuneration paid to the complainant from time to time, the question of false inducement at the threshold does not arise. Ld. Counsel also submits that no property of the OP2-complinant was kept in the custody of the petitioner warranting a breach of trust charge under Section 406 IPC. He also points out the charge of criminal intimidation is merely an embellishment. In support of his contention Sri Rakib relies upon the decisions of the Hon’ble Apex Court reported in Anil Mahajan vs. Bhor Industries Ltd. and Another, 2005 (10) SCC 228 and Dalip Kaur and Others vs. Jagnar Singh and Another, 2009 (14) SCC 696 . On the strength of the above noted decisions Ld. Counsel urges this Court to quash the charge-sheet and the order taking cognizance. Per contra, Sri Sekhar Pal, Ld. Counsel for the OP2-defacto complainant admits that the petitioner had a licence to handle waste oil from the shipping vessels at Haldia Dock. It is also admitted that the OP2 was entrusted with the work of supervising such collection of waste oil on behalf of the petitioner. A copy of the letter of engagement of the OP2 by the petitioner dated 5th February, 2010 is produced before this Court by Sri Pal. Sri Pal argues that the deprivation to the complainant of his dues when promised payments by the petitioner amounts to cheating and breach of trust as alleged in the complaint. He strongly relies upon a decision of the Hon’ble Single Bench of the Andhra Pradesh High Court reported in M/s. Raman-Teels (Tech) & Process Engineering Ltd. and Others vs. M/s. Howrah Industries, Secunderabad and Others, 2000 Criminal Law Journal 603 in support of his argument that exercise of jurisdiction under Section 482 Cr. He strongly relies upon a decision of the Hon’ble Single Bench of the Andhra Pradesh High Court reported in M/s. Raman-Teels (Tech) & Process Engineering Ltd. and Others vs. M/s. Howrah Industries, Secunderabad and Others, 2000 Criminal Law Journal 603 in support of his argument that exercise of jurisdiction under Section 482 Cr. P.C. by this Court does not mean that a complaint must be subjected to meticulous and microscopic examination to ascertain whether every ingredient of the offences alleged have been made out. Sri Pal submits that the complaint is liable to be proceeded with since prima facie materials disclose the commission of the alleged offences. Sri Subir Banerjee, Ld. Additional Public Prosecutor appearing for the State Opposite Party apprises this Court through a report filed by the investigating officer that charge is yet to be framed in the proceeding. Such report, submitted before this Court today, be placed with the record. Submitting further Sri Banerjee points out that since the OP2-defacto complainant was made to continue with the work on inducement by the petitioner that his dues will be cleared, prima facie such inducement will attract the mischief of Section 420 IPC. Besides, there is a specific allegation in the complaint that the OP2 was threatened by the petitioner and hence a charge under Section 506 IPC shall lie. However, in his usual fairness, Sri Banerjee submits that it cannot be gathered from the facts that the petitioner exerted any dominion over the property of OP2 which may result in a charge under Section 406 IPC. Having considered the rival submissions and the materials on record this Court finds that the engagement of the OP2-complainant by the petitioner for collection of waste oil on behalf of the company of the petitioner was formal in nature. As already noted above such engagement letter was handed over by Ld. Counsel for the OP2 to this Court at the time of hearing. It is also an admitted position that the OP2-complainant received remuneration for the work performed by him in the past. This Court finds substance in the contention of Sri Rakib, Ld. Counsel for the petitioner that the OP2 has merely stated that an amount of Rs. 15 lakhs is due to him without specifying the period or respective periods during which and the particulars of works in respect of which such amount became due. This Court finds substance in the contention of Sri Rakib, Ld. Counsel for the petitioner that the OP2 has merely stated that an amount of Rs. 15 lakhs is due to him without specifying the period or respective periods during which and the particulars of works in respect of which such amount became due. This Court also finds substance in the argument of Sri Rakib that in the past the complainant had received his dues and in the event of any present default, such liability is only civil in nature. This Court is of the view that the ratio of the judgment in Anil Mahajan’s Case (supra) applies to the facts of this case and it was necessary for the complainant to show that there was a dishonest intention on the part of the petitioner at the very beginning of the transaction. The Hon’ble Apex Court has held that mere failure to keep a promise at a subsequent stage shall not make out a case of cheating and there lies a distinction between cheating and a mere breach of contract. From the facts of this case this Court is sufficiently persuaded to hold that having regard to the formal engagement of the OP2 in the services of the company of the petitioner as evidenced from the letter of engagement dated 5th February, 2010 read with the fact that OP2 was remunerated for his labours from time to time, does not lead to the conclusion that the petitioner harboured a dishonest intention from the beginning. With regard to the alleged failure on behalf of the petitioner to pay a colossal amount of Rs. 15 lakhs to the complainant for his supervisory work strikes the mind of this Court to be grossly colourable more so, when the complainant has not been able to specify the slices of work and their periodicity against which such dues arose. For above reasons this Court is sufficiently persuaded to hold that further pendency of the criminal proceeding qua the petitioner shall amount to abuse of due process. Accordingly the charge-sheet impugned No. 47 of 2012 dated 27th April, 2012 along with its connected proceeding arising out of Haldia P.S. Case No. 14 of 2012 pending before the Ld. ACJM, Haldia is quashed. CRR 2574 stands allowed. There will be, however, no order as to costs.