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2017 DIGILAW 548 (CAL)

Mayank Poddar v. State of West Bengal

2017-06-15

DEBI PROSAD DEY

body2017
JUDGMENT : 1. The application under Section 482 of the Code of Criminal Procedure has been filed for quashing the proceedings of case no. C-480 of 2008 under Section 406/34 of the Indian Penal Code pending before learned Judicial Magistrate, First Court, Sealdah, South 24 Parganas. 2. Despite service of notice opposite party no. 1 and 2 did not turn up to contest this application. Opposite party no. 2/Madhusudan Das (herein after referred to as opposite party only) had filed an application before learned Magistrate at Sealdah for referring the same to the concerned police station under Section 156(3) of the Code of Criminal Procedure. The application was taken up by learned Magistrate and after considering the materials, cognizance was taken by learned Magistrate. After examination of the complainant and his witness, summons were issued against all the accused. All the accused named in the petition of complaint duly appeared before learned Magistrate and contested the case. In the meantime, the present petitioners being accused no. 2, 3 and 4 have filed this application for quashing the petition of complaint on the ground that learned Magistrate was not justified in issuing summons against the present petitioners since the petition of complaint did not disclose any cognizable offence. In fact, loan was advanced to the son of the complainant for purchasing a vehicle but the son of the complainant could not repay the entire loan amount and as such the vehicle was taken into custody of the accused company. Subsequently that vehicle was sold in auction for satisfaction of the loan amount. Ultimately, the entire loan amount could not be satisfied by the sale proceeds of such vehicle and as such, proceeding was started against the complainant and his son for realization of the rest amount before the arbitrator and the arbitrator decided that a sum of Rs.1,21,522/- was still outstanding. The accused company thereafter filed execution proceeding for realization of the said amount and the said proceeding is still pending before the learned District Judge, Alipore, South 24 Parganas. 3. Learned senior Advocate appearing on behalf of the petitioner contended that learned Magistrate did not consider that mere retention of cheques does not amount to an offence under Section 405 of the Indian Penal Code. 3. Learned senior Advocate appearing on behalf of the petitioner contended that learned Magistrate did not consider that mere retention of cheques does not amount to an offence under Section 405 of the Indian Penal Code. Secondly, learned Magistrate did not take into account the factual situation as stated herein above while issuing summons against the present petitioners and thereby committed gross miscarriage of justice by issuing summons against the present petitioners. In fact, the entire proceeding ought to be quashed since the petition of complaint actually does not disclose any offence far to speak of the involvement of the present petitioners in the commission of alleged offence. 4. The following decisions have been cited by learned senior Advocate on behalf of the petitioners: Sl No. Judgment reference: Relied on: Page no: 1. J TH Zwart & Ors. Vs. Indrani Mukherjee [reported in 1990 C Cr LR(Cal) 1] Paragraphs 14 &16—cognizance only upon complaint of facts constitution the offence. 2 2. P. S. Meherhomji Vs. K. T. Vijay Kumar & Ors. [reported in (2015) 1 SCC Paragraphs 13 & 14-- Issuance of process – requisite judicial consideration. 788] 10 3. Parveen Kumar & Ors. Vs. State & Anr. [1998 Cri. L.J 1693] Paragraphs 10 &11 – Mere retention does not make out criminal breach of trust 18 4. State of Haryana Vs. Bhajan Lal, [1992 Supp (1) SCC 335] Paragraphs 102 –Criminal Proceeding – when can be quashed by High Court under s. 482 CrPC. 22 5. Udai Shankar Awasthi Vs. The State of Uttar Pradesh & Anr. [reported in (2013) 2 SCC 435 ] Paragraph – 40.Inquiry under s. 202 of CrPC—Mandatory where accused resides beyond territorial jurisdiction 79 5. The decision reported in 1992 Supp (1) SCC 335 (State of Haryana Vs. Bhajan Lal) has categorically given some guidelines of some cases wherein the power under Section 482 of the Code of Criminal Procedure may be exercised. The said guidelines may be reproduced below: 1. “Where 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. 2. The said guidelines may be reproduced below: 1. “Where 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. 2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable 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. 3. Where 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. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where 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. 6. 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. 7. 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.” 6. In order to fit in the case of the present petitioners in terms of the guidelines issued in the aforesaid decision, it is necessary to look into the petition of complaint as well as the order passed by learned Magistrate after examination of the complainant and his witness. The complainant has specifically stated that loan was advanced to his son by the accused company and the complainant stood as guarantor to such loan. The complainant has specifically stated that loan was advanced to his son by the accused company and the complainant stood as guarantor to such loan. The complainant handed over six undated blank cheques of his proprietorship firm in favour of the petitioners. Admittedly, the petitioners took appropriate steps for realization of such loan amount from the son of the complainant but did not hand over the said undated blank cheques to the complainant. There is absolutely no suppression of fact in the petition of complaint that the son of the complainant could not pay such amount and as such the vehicle was taken over by the petitioners and thereafter the vehicle was sold in auction. In total Rs.1,80,000/- was given to the son of the complainant and the son of the complainant had paid some instalments towards satisfaction of such loan. Thereafter the vehicle was sold in auction and a sum of Rs.90,000/- was recovered. Despite taking of such steps towards satisfaction of loan of the son of the complainant, the petitioners did not return the undated blank cheques of the complainant and thereby they have committed an offence punishable under Section 406 of the Indian Penal Code. Learned Advocate appearing on behalf of the petitioner contended that mere retention of cheque did not constitute any offence under Section 405 of the Indian Penal Code. 7. On scrutiny of the order of learned Magistrate dated 2nd September, 2008, it transpires that learned Magistrate has specifically considered the statement of the complainant and his witness on solemn affirmation and thereafter relied on some decisions reported in volume III (2004) CCR page 37 (Kerala High Court and (2008) 1 crimes 165 (SC) to hold that retention of blank cheques taken by the petitioners from the complainant even after taking possession of the financed vehicle by them primafacie showed ground for proceeding against the accused person for commission of offence punishable under Section 406/34 of the Indian Penal Code. 8. It is, therefore, apparent from such decision of learned Magistrate that learned Magistrate duly considered the petition of complaint and after relying on some decisions of the Kerala High Court as well as of the Supreme Court has come to a decision that there were grounds for proceedings against the petitioners for commission of offence punishable under Section 406/34 of the Indian Penal Code. 9. 9. In that view of this case, the satisfaction of the learned Magistrate cannot be questioned in a proceeding under Section 482 of the Code of Criminal Procedure. Moreover, such satisfaction of the learned Magistrate is not contrary to the decision reported in 1992 Supp. (1) SCC 335 (State of Haryana Vs. Bhajan Lal). It would be contrary to law to hold that the satisfaction of the learned Magistrate is perverse and not supported by cogent reasons. On the contrary, the learned Magistrate has duly considered the allegations leveled against the petitioners and thereafter decided to proceed against the petitioner on the basis of some principles of law enunciated by the Hon’ble Supreme Court. 10. In that view of this case I find no reason to interfere with the order passed by learned Magistrate and to quash the entire proceedings. 11. However, it appears from the petition of complaint that chairman of Ms. Magma Fincorp Ltd (previously known as Magma-Srachi Finance Ltd.) has been impleaded as accused no. 2. There is absolutely no mention of the name of the chairman and the address of such chairman, on the contrary, it has been stated that the name of the chairman is not known. 12. Curiously enough while issuing such summons against all the accused persons learned Magistrate did not consider as to how such offence has been committed by the chairman whose name has not been mentioned in the petition of the complaint. 13. Moreover, on careful consideration of the petition of complaint I do not find any active role played by the chairman of such company in alluring the complainant to deposit such undated blank cheque in the company. 14. In any view of the matter, the chairman of such company definitely is not associated with the day to day work of the company. It may safely be stated that learned Magistrate ought to have considered such fact at the time of issuance of such summons against accused no. 2 that is the chairman of such company. It may also be stated that the petition of complaint do not show any involvement of accused no. 2 and the prayer of the petitioner namely the chairman may safely be allowed. 15. In the premises set forth above the petition of complaint being C case no. 480 of 2008 in respect of chairman of Ms. It may also be stated that the petition of complaint do not show any involvement of accused no. 2 and the prayer of the petitioner namely the chairman may safely be allowed. 15. In the premises set forth above the petition of complaint being C case no. 480 of 2008 in respect of chairman of Ms. Magma Fincorp Ltd (previously known as Magma Srachi Finance Ltd.) is quashed but the prayer of remaining accused namely accused no. 1, 3 and 4 for quashment of the C case no. 480 of 2008 is refused. The CRR no 4067 of 208 is accordingly disposed of in terms of the aforesaid order. 16. Let a copy of this order be forwarded to the learned Magistrate forthwith for appropriate action. 17. Having regard to the age of the case learned Magistrate is requested to dispose of such case within a year from the date of receipt of the copy of this order. 18. It is thus made clear that learned Magistrate shall dispose of the case under reference without being influenced by any observation made in the forgoing paragraphs.