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Calcutta High Court · body

2018 DIGILAW 667 (CAL)

Shapoor P. Mistry v. State of West Bengal

2018-09-10

MD.MUMTAZ KHAN

body2018
JUDGMENT : 1. This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure filed by the petitioner/accused person praying for quashing of the proceeding of CN-0012555/2015 under Section 406/420/120/34/114 of the Indian Penal Code (hereinafter referred to as IPC) pending before the court of learned Metropolitan Magistrate, 17th Court, Calcutta. On June 6, 2015 opposite party no.2 through its authorized representative filed a petition of complaint (CN-0012555/2015) against M/s. Gazala Engineering Pvt. Ltd., a company registered under the Companies Act, as accused no.1, its two directors as accused no.2 and 3 and this petitioner as accused no.4 before the Chief Metropolitan Magistrate, Calcutta alleging that some time in or about April 2012 complainant was induced by the accused no.2, Director of M/s. Gazala Engineering Pvt. Ltd. to supply Cast Iron Soil Pipes and Fittings to the project site of M/s. Shapoorji Pallonji & Co. Ltd., India Bulls-Power Plant and in order to create trust and confidence placed a purchase order and to show his bonafideness sent a post dated cheque of Rs.9,77,506/- being the amount of part payment but the same was returned back due to some problem in the factory of the complainant. On believing the good gesture of accused no.2, complaint supplied the materials to accused nos.1, 2 and 3 as directed by accused no.2 at their directed site without any adverse remark with regard to the quality, quantity or price of the materials. But on receiving the said materials accused no.1 sent a post dated cheque of Rs. 9,77,506/- contrary to the terms and conditions of the order as agreed and stipulated by the accused nos.1to 3. Complainant having no alternative than to accept the said post dated cheque as materials had already been supplied and delivered the material to them. Thereafter, several attempts were made to meet with the directors of M/s. Gazala Engineering Pvt. Ltd. for further payments but yielded no fruitful result. Letter demanding payment was sent both at the office of the accused no.1, M/s. Gazala Engineering Pvt. Ltd. and also at the residence of its directors and thereafter accused no.2 advised the complainant to contact M/s. Shapoorji Pallonji & Co. Limited who were in possession of the said materials and to take back the same, however, without providing any authority letter for lifting the materials from the site of M/s. Shapoorji Pallonji & Co. Limited. Limited who were in possession of the said materials and to take back the same, however, without providing any authority letter for lifting the materials from the site of M/s. Shapoorji Pallonji & Co. Limited. That the accused persons have committed acts of criminal breach of trust, fraud, deception and cheating in conspiracy with each other in furtherance of their common intention aided and abetted by the petitioner overtly and covertly to make unlawful gains from the alleged transaction. On the basis of the complaint learned Metropolitan Magistrate issued process against all the accused persons including the petitioner for the commission of offence under Section 406/420/120B/34/114 IPC and thereafter issued warrant of arrest against the petitioner. It was submitted by Mr. Pradip Kumar Ghosh, learned Senior Advocate appearing for the petitioner that there was no privity of contract between the complainant and the petitioner and the petitioner had also nothing to do with M/s. Gazala Engineering Pvt. Ltd. nor he was a party to the alleged contract nor the petitioner had any role in the matter of acceptance of contract etc. Mr. Ghosh further submitted that there was a contract between two sets of parties and the Managing Director of another company cannot be dragged without the company being impleaded as a party. According to Mr. Ghosh only in order to create pressure upon the petitioner he has been arraigned as accused without impleading the company. Mr. Ghosh also submitted that the provisions of Section 202 of Code of Criminal Procedure has also not been complied with before issuance of process against the petitioner. Mr. Ghosh relied upon the decisions of U. Dhar and another Vs. State of Jharkhand and another reported in (2003) 2 Supreme Court Cases 219, Sharad Kumar Sanghi Vs. Sangita Rane reported in (2015) 12 Supreme Court Cases 781, Bata India Ltd. and others Vs. State of West Bengal and Ors. reported in 2008 CRI.L.J. 164 (Calcutta High Court) and Abhijit Pawer Vs. Hemant Madhukar Nimbalkar and another reported in (2017) 3 Supreme Court Cases 528 in support of his submissions. Mr. Subrato Bose, learned Senior Advocate appearing for the opposite party no. 2/complainant submitted that accused nos. 1 to 3 are the contractors of accused no. 4 and those materials were purchased from the complainant for the accused no.4 and were also supplied at the site of M/s. Shapoorji Pallonji & Co. Mr. Subrato Bose, learned Senior Advocate appearing for the opposite party no. 2/complainant submitted that accused nos. 1 to 3 are the contractors of accused no. 4 and those materials were purchased from the complainant for the accused no.4 and were also supplied at the site of M/s. Shapoorji Pallonji & Co. Limited, company of the petitioner. He also submitted that an Advocate letter which was sent to the accused no. 1 to 3 was also sent to the petitioner but they did not reply which clearly shows his prima facie involvement in the commission of the offence. According to Mr. Bose, it was the petitioner/accused no.4 who acted behind the scene and abetted the commission of offence. According to him, all these are disputed question of facts which can only be decided by evidence and when the complainant has made out a case in the complaint against the petitioner there is no question of quashing of the proceeding. According to him the learned Magistrate has duly complied with the provisions of Section 202 Cr.P.C. I have considered the submissions of learned Advocates appearing for the respective parties and gone through the documents on record including the petition of complainant (annexeture P1). Evidently, it was the accused no.2, the Director of M/s. Gazala Engineering Pvt. Ltd., who approached the complainant for supply of Cast Iron Soil Pipes and Fittings and placed the purchase order. As per the complainant the complaint supplied the materials to accused nos.1,2 and 3 which was received by their representative and the accused no.1 issued the cheque of Rs. 9,77,506/- which according to the complainant was contrary to the terms and conditions of the order as agreed and stipulated by accused nos. 1 to 3. Even the correspondences made between the complainant and M/s. Gazala Engineering Pvt. Ltd. and it's directors shows that demand for payment was made from accused nos.1 to 3. It may be true that materials were unloaded to the project site of M/s. Shapoorji Pallonji & Co. Limited but the same was done at the behest of accused no.2 and was delivered to the accused no.1 and received by the representative of M/s. Gazala Engineering Pvt. Ltd. Admittedly, there was no privity of contract between the complainant and the petitioner with regard to supply of any materials nor any such order was placed by the petitioner to the complainant. Whether the accused no.1 has received any payment from M/s. Shapoorji Pallonji & Co. Limited or not is the issue between M/s. Gazala Engineering Pvt. Ltd. and M/s. Shapoorji Pallonji & Co. Limited. Moreover, the contract between the complainant and M/s. Gazala Engineering Pvt. Ltd. is an independent contract and as it appears is a matter of recovery of money on account of failure by that company to pay the amount said to be due under the contract. Complainant's advocate letter also indicates receipt of money from M/s. Shapoorji Pallonji & Co. Limited. The contract, if any, between M/s. Gazala Engineering Pvt. Ltd. and M/s. Shapoorji Pallonji & Co. Limited is altogether different contract and the contractual obligations under both the contracts are separate and independent of each other. The rights and obligation of the parties that is the complainant and accused no.1 M/s. Gazala Engineering Pvt. Ltd. are to be governed by contract between them for which the contract between the accused no.1 and M/s. Shapoorji Pallonji & Co. Limited has no relevance. Merely because the materials were supplied at the site of M/s. Shapoorji Pallonji & Co. Limited and the accused nos. 1 to 3 are the alleged contractors of M/s. Shapoorji Pallonji & Co. Limited can not give rise to any action against the Managing Director in his personal capacity unless his personal involvement was there. Furthermore, petitioner has been arraigned as accused in his personal capacity being Managing Director of M/s. Shapoorji Pallonji & Co. but the Company has not been made a party. Even the initial statement of the representative of the complainant and the witness do not reflect the story of alleged abetment of the petitioner for commission of the offence of cheating and criminal breach of trust. In such circumstance there is no reason to permit the petitioner to be subjected to trial for the alleged offence. Accordingly, the impugned criminal proceeding against the petitioner as also the order in so far as the issuance of process against him are concerned the same are quashed and set aside. Since the proceeding against the petitioner as also the order issuing process against him is quashed and set aside, there is no need to enter into the issue with regard to the compliance/non-compliance of the provisions of Section 202 Cr.P.C. before issuance of process against the petitioner. Since the proceeding against the petitioner as also the order issuing process against him is quashed and set aside, there is no need to enter into the issue with regard to the compliance/non-compliance of the provisions of Section 202 Cr.P.C. before issuance of process against the petitioner. The instant revision being CRR No. 2592, is therefore, allowed. The interim order of stay, if any, stands vacated. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.