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2017 DIGILAW 328 (CAL)

Siraj gooptu v. Dhitosh Maity

2017-03-24

RANJIT KUMAR BAG

body2017
JUDGMENT : 1. The petitioner has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure praying for quashing of the criminal proceeding in connection with complaint case bearing C.R. No.802 of 2015 under Sections 406/420 of the Indian Penal Code pending before the court of learned Judicial Magistrate, 4th Court, Paschim Medinipur. 2. The backdrop of the present revisional application is as follows:- On August 21, 2015 the opposite party/complainant filed a petition of complaint before the court of learned Chief Judicial Magistrate, Paschim Medinipur which was registered as C.R. Case No.802 of 2015. The contents of the petition of complaint disclose that the petitioner/accused person is an Advocate of the High Court at Calcutta. It is alleged that the petitioner disclosed his connection with the officers of Directorate of School Education, West Bengal and assured to make arrangement for employment as primary teacher on payment of Rs.25,000/- per head. It is further alleged that the petitioner persuaded the complainant to contact with some candidates who are willing to work as primary school teacher and as such, the petitioner collected 68 candidates who were willing to give Rs.25,000/- each to the petitioner for getting appointment as teacher in primary school. On December 5, 2011 the petitioner went to Hotel Hindustan situated in Midnapur town, gave assurance to 68 candidates for appointment as teacher in primary school and collected Rs.22 lakh and other documents from those candidates. It is also alleged that those candidates did not receive any call letter for appearing in the interview. The complainant and the witnesses whose names are appearing in the petition of complaint were induced by the petitioner for persuading 68 candidates to make payment of Rs.22 lakh to the petitioner for getting appointment as teacher of the primary school, but ultimately, no appointment letter was received by those candidates including the complainant and the witnesses who were cheated by the petitioner. So, the opposite party/complainant has filed the petition of complaint before the court of learned Magistrate. 3. It appears from the materials on record that the opposite party/complainant has not disclosed the names of 68 candidates who are alleged to have been cheated by the petitioner except Sadananda Sarkar, Kapil Sen, Goutam Sinha, Prasanta Samanta, Sahadeb Jana and Somnath Dey whose names are cited as witnesses in the petition of complaint. 3. It appears from the materials on record that the opposite party/complainant has not disclosed the names of 68 candidates who are alleged to have been cheated by the petitioner except Sadananda Sarkar, Kapil Sen, Goutam Sinha, Prasanta Samanta, Sahadeb Jana and Somnath Dey whose names are cited as witnesses in the petition of complaint. Admittedly, the complainant was examined under Section 200 of the Code of Criminal Procedure before the court of learned Magistrate. Not a single witness cited in the petition of complaint was examined before the court of learned Magistrate under Section 200 of the Code of Criminal Procedure. Not a single candidate who is alleged to have given money to the petitioner has been examined before the court of learned Magistrate under Section 200 of the Code of Criminal Procedure for formation of opinion of learned Magistrate about issuance of summons for the offence punishable under Sections 406/420 of the Indian Penal Code. 4. On perusal of the initial deposition given by the opposite party/complainant before the court of learned Magistrate, I find that the opposite party/complainant did not disclose the name of any of 68 candidates who are alleged to have given money to the petitioner/accused person at Hotel Hindustan in Medinipur town. With the above factual matrix, I have to decide whether the contents of the petition of complaint disclose prima facie offence punishable under Sections 406/420 of the Indian Penal Code. The proposition of law laid down by the Supreme Court for quashing the criminal proceeding in paragraph 102 of "State of Haryana v. Bhajanlal" reported in 1992 SCC (Cri) 426 is as follows:- (a) Whether the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (b) Whether the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (c) Whether the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (c) Whether the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (d) Whether the allegations in the FIR do not constitute a cognisable offence, but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (e) Whether the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (f) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (g) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 5. By applying the above test in the facts of the present case, I have to decide whether the contents of the petition of complaint disclose offences for which summons was issued by the learned Magistrate against the petitioner/accused person. Learned Magistrate issued summons against the petitioner/accused person on the allegation of committing offence punishable under Sections 406/420 of the Indian Penal Code. It is relevant to quote the definition of criminal breach of trust laid down in Section 405 of the Indian Penal Code, which is as follows:- "405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'. Explanation 1.- A person, being an employer (of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 or not) who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2.- A person, being an employer, who deducts the employee's contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a deduction of law as aforesaid." 6. On perusal of the definition of criminal breach of trust punishable under Section 406 of the Indian Penal Code, I find that the property must be entrusted with the petitioner/accused person and the petitioner must have dishonestly misappropriated the same. In the instant case, the candidates who are alleged to have handed over money to the petitioner/accused person are not forthcoming before the court of learned Magistrate except the complainant who claims to have persuaded 68 candidates to give Rs.22 lakh to the petitioner. In the instant case, the candidates who are alleged to have handed over money to the petitioner/accused person are not forthcoming before the court of learned Magistrate except the complainant who claims to have persuaded 68 candidates to give Rs.22 lakh to the petitioner. On perusal of the various orders passed by learned single Judge of this Court in connection with W.P. No.5137 (W) of 1996 and orders passed by the Hon'ble Division Bench of this Court in connection with MAT 278 of 2013, and the order passed by the Apex Court in connection with petition for Special Leave to Appeal (C) No.11881- 11883 of 2014, I find that almost all the persons whose names are cited as witnesses in the petition of complaint were applicants before the writ court in connection with W.P. No.5137 (W) of 1996 and the applications of those persons were moved by the present petitioner/accused person as an Advocate representing those applicants. The said writ petition was filed against the Chairman, Ad hoc Committee, Midinipur District Primary School Council and others. Since the petitioner represented almost all the persons whose names have been cited as witnesses in the petition of complaint before the writ court as an advocate representing those persons, the allegation of entrustment of money with the petitioner for the purpose of getting appointment as teacher of the primary school appears to be absurd and inherently improbable. In the absence of any statement from any of 68 candidates, the bald and omnibus allegation of giving Rs.22 lakh by the opposite party/complainant cannot make out prima facie case of criminal breach of trust against the petitioner/accused person who represented the witnesses cited in the petition of complaint as Advocate before the writ court. 7. The opposite party/complainant has also alleged about cheating against the petitioner/accused person which is punishable under Section 420 of the Indian Penal Code. Cheating is defined in Section 415 of the Indian Penal Code, which is as follows:- "415. 7. The opposite party/complainant has also alleged about cheating against the petitioner/accused person which is punishable under Section 420 of the Indian Penal Code. Cheating is defined in Section 415 of the Indian Penal Code, which is as follows:- "415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause demage or harm to that person in body, mind, reputation or property, is said to "cheat"." 8. On perusal of the definition of cheating as laid down in Section 415 of the Indian Penal Code, I find that the petitioner/accused person must induce the complainant and 68 other persons for giving money @ Rs.25,000/- per head for getting appointment as teacher in the primary school. The names of those candidates are conspicuously absent from the petition of complaint. Nor has the complainant/opposite party disclosed the names of those candidates at the time of his examination under Section 200 of the Code of Criminal Procedure. I have already observed that the persons whose names are cited as witnesses and who also are alleged to have given money to the petitioner were represented by the petitioner/accused person as an advocate in connection with a writ petition and as such, the allegation of receiving money from 68 candidates is not prima facie made out. Even assuming for argument's sake the petitioner/accused person has taken money from the persons whose names are cited as witnesses in the petition of complaint, the petitioner has the right to take his professional fees from the persons whom he represented before the court of law. The allegations made by the complainant/opposite party seems to be absurd and inherently improbable. 9. The allegations made by the complainant/opposite party seems to be absurd and inherently improbable. 9. By applying the test laid down by the Supreme Court in "State of Haryana v. Bhajanlal" (supra) and on perusal of the petition of complaint and the initial ejahar given by the complainant/opposite party under Section 200 of the Code of Criminal Procedure, I am of the view that the allegations are so absurd and inherently improbable, that no prudent person can ever reach to a just conclusion that there is sufficient ground for proceeding against the petitioner/accused person for the offence punishable under Sections 406 and 420 of the Indian Penal Code. Accordingly, the continuation of the criminal proceeding against the petitioner is an abuse of process of the court and as such I would like to invoke my inherent power under Section 482 of the Code of Criminal Procedure to quash the said criminal proceedings. 10. In view of my above findings, the criminal proceeding bearing C.R. No.802 of 2015 under Sections 406/420 of the Indian Penal Code pending before the court of learned Judicial Magistrate, 4th Court, Paschim Medinipur is quashed. Let a copy of this judgment be handed over to the learned Judge of the court below for favour of information and necessary action.