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2016 DIGILAW 139 (CAL)

Avishek Banerjee v. State of West Bengal

2016-02-05

SHIB SADHAN SADHU

body2016
JUDGMENT : Shib Sadhan Sadhu, J. 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner praying for quashment of the proceeding being G.R. Case No.1766 of 2014 under Section 406 of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Serampore, Hooghly. 2. A written complaint was lodged by the complainant Smt. Rakhi Das (Ghosh) against one named accused (petitioner herein) on 08.08.2014 before the Court of Learned Additional Chief Judicial Magistrate, Serampore for the offence punishable under Section 406 IPC. 3. As per the complaint the complainant is the owner of a white coloured Scorpio vehicle bearing registration No.WB06H-0265 which she uses for her personal use. The present petitioner/accused is well-acquainted with her and her husband and he is in visiting terms with them for a long. Thereby they reposed faith upon the petitioner/accused. For that reason the petitioner used to take the said vehicle for his personal use and he also used to return the same in due time. On 15.07.2014 the petitioner/accused told the complainant and her husband that the said vehicle needs some repair for which some money is to be paid. Saying that he took Rs.1,000/- from the de-facto complainant and left with the vehicle. But he did not come back or return the vehicle. The complainant contacted with him over telephone and he assured to return the vehicle after 2 days but he did not do so and he ultimately disclosed that he would not return the vehicle any more. Thereafter she filed a written complaint in the Court of Learned Additional Chief Judicial Magistrate, Serampore against the petitioner/accused alleging commission of offence punishable under Section 406 IPC which was sent for investigation under Section 156(3) Cr.P.C. On receipt of the complaint Serampore P.S. Case No.462 of 2014 dated 03.09.2014 under Section 406 IPC was registered and investigation was taken up which is still continuing. 4. Mr. Prantick Ghosh, Learned Counsel appearing on behalf of the petitioner argued that the facts stated in the written complaint, even if accepted as it is, do not constitute offence under Section 406 of the IPC. He further contended that the O.P. No.2 is neither the registered owner of the vehicle nor had any possession and so she had no authority to make any entrustment to the petitioner as alleged. He further contended that the O.P. No.2 is neither the registered owner of the vehicle nor had any possession and so she had no authority to make any entrustment to the petitioner as alleged. His further contention was that being directed by the Learned Magistrate the Investigating Officer submitted report that one Amit Kumar Mondal is the registered owner of the vehicle in question who purchased it from one Aniruddha Chakraborty who again purchased the vehicle from the O.P. No.2 who delivered the vehicle after execution of a money receipt of Rs.6,00,000/- in favour of said Aniruddha Chakraborty. Since the O.P. No.2 disputed the signature appearing on the money receipt to be forged the Investigating Officer took her specimen signature for comparison and verification of the same by the Handwriting Expert. Mr. Ghosh, submitted yet further that in terms of the order passed by this Court in C.R.R. 1103 of 2015 with C.R.R. 1237 of 2015 the vehicle in question has been given in interim custody in favour of said Amit Kumar Mondal on execution of bond of Rs. 15,00,000/- and on some other conditions. Therefore, according to Mr. Ghosh on the backdrop of such alleged facts and circumstances the allegations made in the complaint make out no offence at all far to speak of establishing an offence under Section 406 IPC against the present petitioner/accused and so no investigation is needed further. He concludingly contended that the essential ingredients of the offence of criminal breach of trust as defined under Section 406 of the IPC being not made out and the institution of the criminal proceedings being an abuse of process of law, it is liable to be quashed. 5. Mr. Amitava Ghosh, Learned Counsel appearing on behalf of the O.P. No.2, on the other hand, argued that from the contents of the written complaint a prima facie case of criminal breach of trust is made out against the present petitioner/accused. He further contended that the O.P. No.2 is the original registered owner of the vehicle which she entrusted to the petitioner/accused who dishonestly disposed of that vehicle by employing unfair and deceitful means. The O.P. No.2 never transferred the vehicle to any person and the alleged money receipt is a forged one and the investigation is still going on. He argued yet further that the defence of the petitioner cannot be considered at this stage. The O.P. No.2 never transferred the vehicle to any person and the alleged money receipt is a forged one and the investigation is still going on. He argued yet further that the defence of the petitioner cannot be considered at this stage. Further, although while considering the application for quashing of the proceeding the allegation made in the First Information Report and the materials collected during the course of investigation are required to be considered but truthfulness or otherwise of the allegation is not to be gone into at this stage as it is always a matter of trial. Therefore, according to Mr. Ghosh no interference is warranted and the petitioner would be at liberty to raise defences available to him under the law in the Trial Court. 6. I have considered the rival contentions advanced by the learned Counsel for the parties. I have also perused the entire materials available on record. 7. At the very outset let me refer to two recent decisions of the Hon’ble Supreme Court laying down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. 8. 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. 9. In Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330 , The Hon’ble Supreme Court has been pleased to observe that:- “The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 10. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decisions, 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. 11. The entire allegations against the petitioner as stated in the written complaint reveal that the petitioner was an acquaintance of the O.P. No.2 and her husband and he was in long visiting terms with them and thereby a relation of trust was developed. Taking that advantage he took away the vehicle from the possession of the O.P. No.2 on the pretext of repair but he did not return the vehicle. Therefore it is evident that there are sufficient materials which establish prima facie commission of an offence. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial. The fact that the O.P. No.2 is the original registered owner of the vehicle in question becomes apparent from the report of the Investigating Officer. The fact that the O.P. No.2 is the original registered owner of the vehicle in question becomes apparent from the report of the Investigating Officer. It is mentioned therein that one R.C. Book stands in the name of the O.P. No.2 vide registration dated 10.08.2011 valid up to 15.08.2026 (vide Annexure F at Page 31). Whether or not she transferred the vehicle to Aniruddha Chakraborty is to be investigated in details as she has denied execution of any money receipt in favour of said Aniruddha Chakraborty. It is interesting to see that although the copy of Certificate of Registration in the name of Amit Kumar Mondal is annexed (vide Annexure B at Page 22) which bears the date 21.10.2014 but no such document is forthcoming in respect of the alleged purchase by Aniruddha Chakraborty. It is more interesting to see that the money receipt allegedly signed by the O.P. No.2 (vide Annexure D at Page 29) does not bear any date nor there is name of any witness or signature of the witness. Also the signature is missing the surname ‘Ghosh’ of O.P. No.2. All these are sufficient to make out a prima facie case for the offence complained of against the accused/petitioner under the Indian Penal Code. In this context I would like to mention that the Hon’ble Supreme Court in the case of M/s K.L. Johar and Company Vs. The Deputy Commercial Tax Officer, Coimbatore III reported in AIR 1965 Supreme Court 1082 while distinguishing a Hire Purchase Agreement and a Sale observed that the fact of registration by itself in one name or another may not be determinative of the ownership of the vehicle. 12. 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. 13. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs. 14. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.