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2019 DIGILAW 47 (CAL)

Amir Hossain v. State of West Bengal

2019-01-10

ASHA ARORA

body2019
JUDGMENT : ASHA ARORA, J. 1. Petitioner has approached this Court under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding being G.R. No. 1071 of 2016 arising out of Tarapith P.S. Case no. 56 of 2016 dated 6/11/2016 under section 403/406/420/409 of the Indian Penal Code pending before the learned Additional Chief Judicial Magistrate, Rampurhat, Birbhum. 2. The facts in brief leading to the present application may be summarized as follows: 3. On 6/11/2016 the Secretary, Sandhyajole Samabay Krisi Unnayan Samity who is the opposite party no. 2 herein made a written complaint at Tarapith P.S. alleging commission of offences under section 403/406/420/409 IPC against the petitioner. According to the aforesaid complaint, the Sandhyajole Samabay Krisi Unnayan Samity is a Primary Agricultural Credit Society run by a Board of Directors elected from among the members of the society in accordance with the West Bengal Co-operative Societies Act, 2006 and West Bengal Co-operative Societies Rules, 2011. The statutory audit of the said society for the period from 1/4/2007 to 31/3/2014 was conducted by a senior auditor Grade II, Rampurhat the report of which reflected several anomalies in transactions particularly in cash book entries, deposits, borrowings, loan and advances resulting in misappropriation of several lacs. It is further averred in the written complaint that from the office records it appears that Amir Hossain, the erstwhile manager of the Society (the petitioner herein) was in charge of the aforesaid work and is responsible for the misappropriation. The said Amir Hossain had submitted an undertaking on 25/5/2012 long before the extent of misappropriation was ascertained by the auditors, shouldering the entire responsibility of financial anomalies for the period during which he was the manager of the society and committed to refund the amount of seven lac to the society which he had misappropriated. After the audit report the petitioner was served notice by the society to refund the amount but he refused. On the basis of the aforesaid written complaint the criminal proceeding being Tarapith P.S. Case No. 56 of 2016 dated 6/11/2016 under section 403/406/420/409 IPC was initiated against the petitioner. While the investigation was well underway the petitioner filed the present application and obtained an order of stay of the impugned proceeding. 4. On the basis of the aforesaid written complaint the criminal proceeding being Tarapith P.S. Case No. 56 of 2016 dated 6/11/2016 under section 403/406/420/409 IPC was initiated against the petitioner. While the investigation was well underway the petitioner filed the present application and obtained an order of stay of the impugned proceeding. 4. Learned senior counsel appearing for the petitioner strenuously argued that there was inordinate delay in lodging the FIR which does not disclose the ingredients of the offences alleged. It is pointed out that the written complaint was lodged on 6/11/2016 long after the petitioner's retirement on 15/3/2012. Continuance of the proceeding on the basis of such FIR is an abuse of the process of court. To buttress his submission on the point of delayed and cryptic FIR, reliance has been placed on the case of Gajanan Dashrath Kharate versus State of Maharashtra reported in, (2016) 4 SCC 604 paragraph 11 and in the case of Bhagwan Jagannath Markad and others versus State of Maharashtra, (2016) 10 SCC 537 paragraph 26 and 27. Referring to section 32 of the West Bengal Cooperative Societies Act, 2006 (hereinafter referred to as the 'Act'), learned counsel for the petitioner canvassed that the board of directors are responsible for managing the affairs of the society so the petitioner who was working under the said board cannot solely be held liable. In this context reference has also been made to Rule 53 of West Bengal Co-operative Societies Rules, 2011 which relates to "Duties of the Board." Learned counsel for the petitioner sought to impress that it is the duty of the board to maintain accounts, receive and disburse money etc. for which the manager had no responsibility. It has further been argued that the definition of "officer" under section 4 sub section (47) of the Act does not include the post of manager which has deliberately been excluded. Placing reliance upon the case of State of Maharashtra versus Laljit Rajshi Shah and others reported in, (2000) 2 SCC 699 learned counsel for the petitioner contended that since 'manager' of a co-operative society is not included within the definition of "Officer", he shall not be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. The offence under section 409 IPC is therefore not applicable to the petitioner. The offence under section 409 IPC is therefore not applicable to the petitioner. Learned counsel for the petitioner sought to impress that a suit for recovery of money if filed within the period of limitation would have been an appropriate remedy. 5. Repudiating the submissions on behalf of the petitioner, learned advocate appearing for the State countered that there are specific averments of misappropriation by the petitioner in paragraphs 5 and 6 of the complaint. Whether the petitioner alone was responsible for the offences alleged or whether there are others involved is a matter of investigation and it is too premature a stage to quash the proceeding on the grounds urged by the petitioner. It is argued that the petition of complaint and the statement of the two witnesses recorded under section 161 CrPC indicate that there is sufficient material for proceeding against the petitioner. 6. For the purpose of the present application it will be beneficial to refer to the observation of the Supreme Court in the case of Rajesh Bajaj versus State NCT of Delhi and others reported in, (1999) 3 SCC 259 in paragraph 9 of the judgment which reads as follows: "9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal this court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decision are a sound reminder: (SCC p. 379, para 103) "103. In State of Haryana v. Bhajan Lal this court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decision are a sound reminder: (SCC p. 379, para 103) "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 7. It is also pertinent to quote the relevant paragraph 12 of the aforesaid judgment wherein the Supreme Court observed as follows: "12. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415 IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved." 8. In the context of the argument advanced on behalf of the petitioner it will be useful to quote paragraph 12 of the judgment in the case of Indian Oil Corporation versus NEPC India Ltd. and others reported in, (2006) 6 SCC 736 which is as follows: "12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agarwalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. Sharaful Haque. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." 9. The test is whether the allegations in the complaint disclose a criminal offence or not." 9. Reverting to the present case at hand, the allegations made in the petition of complaint, in my considered opinion, clearly disclose a prima facie case against the petitioner justifying registration of a criminal proceeding and an investigation thereon. In the instant case, it cannot be said upon perusal of the contents of the petition of complaint in its entirety that it is bereft of even the basic facts which are absolutely necessary for constituting a prima facie case for the offences alleged. Nor can it be said that the allegations made in the complaint, even if given face value and taken to be correct in its entirety, do not disclose an offence. This case certainly does not fall within any of the categories of cases calling for the exercise of the power of the Court under section 482 of the Code of Criminal Procedure. The issues raised herein by the learned counsel for the petitioner cannot be decided at this stage of the proceeding. This Court, while exercising the power under section 482 CrPC. cannot discharge the functions of the trial court. It appears that by seeking to quash the proceeding, petitioner intended to stifle a legitimate prosecution. The decisions in the case of Gajanan Dashrath (supra) and Bhagwan Jagannath Markad (supra) relied upon by the learned counsel for the petitioner are not apposite for the purpose of the present application under section 482 CrPC. Both these cases relate to appeal against the judgment and order of conviction and sentence passed by the High Court. Apart from being clearly distinguishable on facts, the above mentioned two cases do not pertain to section 482 CrPC. The decision in Laljit Rajshi (supra) is also of no help at the nascent stage of investigation. Both these cases relate to appeal against the judgment and order of conviction and sentence passed by the High Court. Apart from being clearly distinguishable on facts, the above mentioned two cases do not pertain to section 482 CrPC. The decision in Laljit Rajshi (supra) is also of no help at the nascent stage of investigation. In the decision referred, on the basis of criminal prosecution under section 120B, 409, 420, 467, 471 and 477A IPC, sections 7 and 9 of the Essential Commodities Act and section 5(1)(c) and 5(1) (d) read with section 5(2) of the Prevention of Corruption Act, the Special Judge took cognizance of the offences against the accused/respondents who agitated before the learned Judge that they are not "public servants" for the purpose of offences under section 409 IPC and under the relevant section of the Prevention of Corruption Act and further, the prosecution was not maintainable for want of previous sanction. These points were raised by the accused after cognizance was taken. It was not at the threshold of investigation as in the case at hand. 10. For the reasons afore stated, the application being CRR 224 of 2018 is devoid of merit and is accordingly dismissed. 11. Pursuant to the above order, the application being CRAN 3773 of 2018 is also dismissed. 12. No order as to cost. 13. The investigation of G.R. No. 1071 of 2016 under section 403/406/420/409 IPC arising out of Tarapith P.S. Case No. 56 of 2016 dated 6/11/2016 shall proceed in accordance with law. 14. Urgent photostat certified copy of this order if applied for, be given to the applicant upon compliance of requisite formalities.