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2020 DIGILAW 251 (CAL)

Manish Kumar v. State Of West Bengal

2020-02-19

SUBHASIS DASGUPTA

body2020
JUDGMENT Subhasis Dasgupta, J. - This revisional application has been filed by the petitioners/accused persons to quash a criminal proceeding initiated on a complaint, filed by the complainant/opposite party No.2 under Section 156(3) Cr.P.C., which was registered as GR. Case No. 37/13, for the offence under Sections 420/465/468/477A/120B of the Indian Penal Code, in the court of learned Additional Chief Judicial Magistrate, Asansol. 2. The allegation raised against the petitioners is that even after receiving services from complainant/opposite party No.2 as a transport contractor for a considerable period of time, petitioners never raised any objection about the quality of the service rendered together with execution of work, supposed to be discharged by the complainant/O.P. No.2, yet the petitioners withheld payments of bills raised by complainant to the tune of Rs. 7,00,000/- (rupees seven lakhs) approx., for the non-payment of 10% of kickback of the bill amount. That for protest being raised by the complainant/O.P. No.2, he was asked to settle his claim to the extent of Rs.7,88,960/- (rupees seven lakhs eighty eight thousand nine hundred and sixty) approx., foregoing the actual bill amount. 3. The complainant/O.P. No.2, after being approached by the ACC Ltd., consented to be appointed as a transporting agent of ACC cement, for transporting cement from the manufacturing site at Mudhukunda, Purulia to various destinations, settling terms of agreement inclusive of the charges to be paid by ACC Ltd. by an agreement. Since 1996, in the capacity as such, the complainant/O.P. No.2 continued to render service to ACC Ltd. receiving payments for the service rendered, though keeping some portion as unpaid. The service of the complainant/O.P. No.2 reached the satisfaction level of the ACC Ltd., and he was also entrusted with the further job of canvassing agent in July, 2007, which was supposed to be discharged in his own name, independent of the name of firm of O.P. No. 2. The management of the ACC Ltd. faced a change in 2010 leaving impact on the administration of ACC Ltd., supposedly discharged by petitioners No.1 to 4, who are high officials of the ACC Ltd. (accused No. 5), and arraigned as accused persons in the petition of complainant. Commercial transactions held between the parties were maintained with use of computer. The management of the ACC Ltd. faced a change in 2010 leaving impact on the administration of ACC Ltd., supposedly discharged by petitioners No.1 to 4, who are high officials of the ACC Ltd. (accused No. 5), and arraigned as accused persons in the petition of complainant. Commercial transactions held between the parties were maintained with use of computer. The non-payment of 10% kickback of bill amount, raised by the complainant/O.P. No.2, prompted accused persons/petitioners to hatch up a conspiracy to deceive the complainant/O.P. No. 2, and to cause wrongful loss to him, and accordingly tampered the relevant actual electronic records regarding transaction held between the parties, and deleted the actual records from the software of computer, and thereby induced the high officials of ACC Ltd. to believe that the complainant was actually entitled to get Rs. 7,00,000/- (rupees seven lakhs) approx. only, and thus compelling the complainant/O.P. No.2 to forego the rest of the amount. In the mean time, the accused persons issued noticed, dated 21.08.2012 terminating transport agreement of complainant/O.P. No. 2. 4. Such complaint was forwarded to P.S. under Section 156(3) Cr.P.C. for investigation. Police held extensive investigation, and submitted charge sheet making out a prima facie case under Section 420/465/468/477A/120B I.P.C. 5. Learned advocate for the petitioners submitted that the complaint lodged against the petitioners essentially founded upon a commercial transaction arising from a road transport agreement, dated 01.07.2010, and for the breach of terms of the promise of such agreement, the complainant/O.P. No. 2 should have resorted to civil action for his desired relief before a civil court of competent jurisdiction. 6. It was argued that the instant criminal proceeding being essentially a dispute of civil nature, where civil remedies are available, the same should be quashed bearing in mind that the dispute of civil nature should not be allowed to become subject matter of criminal proceedings, as a short cut method for obtaining speedy relief, and taking the advantage of the criminal case, petitioners could not be forced to settle their account giving unlawful gain to complainant/O.P. No.2, a party to the commercial transaction. 7. 7. It was contended by the learned advocate for the petitioners that at the time of initiation of this case, the petitioners (1 to 4) just discharged their official duties without individually performing any deliberate action on their part, suggestive of commencement dishonest intention on their part at the beginning of such commercial transaction, entered into between them. 8. Learned advocate for the petitioners proposed that the vicarious liability could not be attracted against the petitioners, on the ground that the petitioners were not the signatories to the original contract. Contention was further raised by the petitioners that the investigation neither having collected any materials, nor seized any accessories from relevant computer, indicative of tampering or deleting the computers pointing to the petitioners' culpable intention of causing deception on their part from the very beginning, the allegation of having cheated the complainant/O.P. No.2 in such circumstances would not be sustainable. 9. It was accordingly suggested by the learned advocate for the petitioner that in cases of long term commercial relationship between the parties, where the commercial transaction are held frequent, the non-payment of part dues or the immediate failure to make good certain short term liability arising out of such long term commercial relationship, especially when payments have been regularly made in the past, and when no other independent factors raising apprehension of misappropriation or wrongful loss exists, such short term nonpayment of dues could not be the basis of criminal prosecution like the instant one. 10. Learned advocate Mr. Debajoyti Deb, representing the State focused his argument submitting that the charge sheet having been submitted making out a prima facie case against the petitioners, the prayer for quashing ought not to have been entertained, because prima facie case was sufficiently established as against the petitioners. 11. Per contra, learned advocate for the complainant/O.P. No.2 submitted that the new management of accused No. 5 only perpetrated the offence complained of. It was thus submitted that directors and the officials of the corporation would represent the directing mind of a company, a body corporate, and state of mind of the officials, would be the state of mind of the company. The petitioners, according to complainant, were not the directing minds of accused No. 5 prior to 2010, and the payment of the services rendered was put on hold illegally after the petitioners becoming the directing mind of ACC Ltd. 12. The petitioners, according to complainant, were not the directing minds of accused No. 5 prior to 2010, and the payment of the services rendered was put on hold illegally after the petitioners becoming the directing mind of ACC Ltd. 12. The service rendered prior to 2010 by the complainant, and the payment so made to the complainant, would be of no consequence to show the bona fide on the part of the petitioners, as against an allegation of cheating by withholding payment of bills, for failure to pay 10% of kickback of the bill amount leading to issuance of a notice terminating the transport agreement after tampering and/or deleting the relevant data in the computer revealing the transaction held between the parties. 13. Learned advocate for the complainant submitted that simply because of an offence was found to have committed during the course of commercial transaction, the same could not be a strong ground to throttle a legitimate prosecution at the initial stage. It was submitted accordingly that the averments contained in the complaint sufficiently revealed materials making out a prima facie case, and for which the inherent power of this court should not be attracted to stifle a prosecution after embarking upon an enquiry, whether the materials collected would be reliable or not, going to the extent of making reasonable appreciation of the materials already collected to test the bona fide of the prosecution. 14. It was further submitted that though the offence of cheating might have originated form the commercial transaction, but it was not a case of simpliciter, as contended to be for enforcement of a breach of promise by adopting a short cut method for realisation of unpaid amount of service charges. The offence of cheating having originated consequent upon the tampering and/or deleting, or manipulating the data maintained in the software of the computer of petitioners, there developed a significant magnitude, and upon due appreciation of which, trial should be commenced expeditiously. 15. Upon hearing the learned counsel for either of the parties to this case, and also on looking into the materials on record, it appears that the main offence alleged by the complainant was that the petitioners committed cheating by deleting/tampering/manipulating the data in the software of their computer in consequence of their conspiracy to deceive the complainant so that there could be wrongful loss to the complainant. 16. 16. Deceiving is ordinarily perceived to induce a man to believe that a thing is true which is false, and the person practising deceit knows or believes it to be false. While claiming to have been deceived, it is for the complainant/aggrieved party to establish that there exists a fraudulent and dishonest intention at the time of commission of offence. Indisputably the complainant/opposite party No. 2 was appointed as transport carrier for and on behalf of ACC Ltd. (accused No. 5). In the year 2007, complainant/opposite party was further entrusted with the job of canvassing agent for the company accused. After the new management had taken over charge in 2010, petitioner No. 1 to 4 assumed control in respect of administration of ACC Ltd. revalidating an agreement held in the year of 2010 between the parties. 17. The bills raised being the service charges of complainant/opposite party No. 2 rendered in favour of ACC Ltd. were put to face complication disputing with the quality of the services rendered and the consequent impact caused to ACC Ltd. (accused No. 5). 18. Contention was raised that bills raised being the service charges were put on hold demanding 10% kickback of the actual bill amount, and failure to make such kickback amount, complainant/opposite party in 2012 was served with a notice terminating his transport agreement, and thus put to face immense pressure to settle the account taking Rs.7,00,000/- (rupees seven lakhs) approx., as against the outstanding claimed amount of Rs.60,00,000/- (rupees sixty lakhs), though claimed as per own estimation of complainant/opposite party No.2. There was an arbitral clause incorporated in the transport agreement, entered into between the parties, which however, could not be resorted to settle the dues payable to complainant/opposite party. 19. It would be relevant here to reproduce relevant portion of Paragraph-12 of complaint which may be mentioned as hereunder: "12. There was an arbitral clause incorporated in the transport agreement, entered into between the parties, which however, could not be resorted to settle the dues payable to complainant/opposite party. 19. It would be relevant here to reproduce relevant portion of Paragraph-12 of complaint which may be mentioned as hereunder: "12. That it is pertinent to mention here that before such termination of the work several communication was made with the Higher authority of the accused No. 5 but the accused No. 1 to 4 in pursuance of their conspiracy to deceive the petitioner and to cause wrongful loss to the petitioner tampered the actual electronic records regarding the transaction between the petitioner, petitioner's firm and the accused No. 5 for transportation of cement Bags and doing the other jobs on behalf accused No. 5 and also deleted the actual records from the software of the computer and thereby induced the higher officials of accused No. 5 to declare that the petitioner is entitled to get Rs. Seven Lakhs only and those higher officials illegally asked your petitioner to settle the matter and to forego the balance amount." 20. It is true that while exercising authority available under Section 482 Cr.P.C., the court is not obliged to embark upon an enquiry in respect of the materials produced before it, but for the purpose of ascertaining a prima facie case to have been established or not from the averments contained in the complaint together with the materials produced, the court is obliged to look into the averments and other materials produced subject to ascertaining a prima facie case, and thereby limiting its vision to that extent only. 21. Upon perusal of the averment of complaint, shown hereinabove, it appears that the cheating was alleged to have occasioned by reason of a conspiracy, hatched up by the petitioners by causing/tampering in the computer data, maintained by the petitioners for settling the accounts, being the service charges due, payable by the petitioners to complainant/opposite party. It was further alleged that the alleged conspiracy was to deceive the complainant for causing wrongful loss to him. 22. It was also alleged that by causing such manipulation in the computer data, the petitioners induced their higher officials to believe that the complainant was entitled to get lesser amount, than actual amount claimed. It was further alleged that the alleged conspiracy was to deceive the complainant for causing wrongful loss to him. 22. It was also alleged that by causing such manipulation in the computer data, the petitioners induced their higher officials to believe that the complainant was entitled to get lesser amount, than actual amount claimed. Such averment appears to be self-contradictory, because in one hand, the complainant figured himself to have been deceived, so that he could be put to sustain wrongful loss, but in other hand, higher officials of the ACC Ltd., other than the petitioners, were alleged to have been deceived in consequence inducement, generated from computer manipulation. 23. In the complaint, there was no allegation that there was fraud or dishonest inducement on the part of the petitioners, and thereby the complainant/opposite party No. 2 stopped providing service, though, he received a termination letter in respect of his transport agreement some times in the year 2012. 24. Offence of cheating may consist of two classes of cases enumerated as herein below: 1. Where the complainant has been induced fraudulently or dishonestly; 2. When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused. 25. The averments contained in the complaint would not attract either of the two cases, shown hereinabove, to make out a case for the commission of the alleged offence justifying a trial to commence, as a ordinary consequence. 26. An offence of cheating focuses for making adherence to: i. Deception of a person either by making false or misleading representation or by other action or omission; ii. Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. 27. The settled proposition is that for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise, or representation. Undoubtedly, the petitioners assumed control taking charge over the administration of the ACC Ltd. in the year 2010. 27. The settled proposition is that for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise, or representation. Undoubtedly, the petitioners assumed control taking charge over the administration of the ACC Ltd. in the year 2010. The moment when a new transport agreement was entered into between the parties in the year 2010, there left no occasion on the part of the petitioners to give birth to their dishonest intention, what appears to be the essence of the offence under Section 420 I.P.C. 28. The service charge claimed by way of raising bills is contended to have been put on hold demanding 10% kickback of the actual amount claimed in the bill, and for the non-payment of which, complainant/opposite party was put on pressure to settle his account receiving some inappropriate amount, compared to his service rendered. Even in a case, where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of culpable intention at the time of making initial promise, no offence under Section 420 I.P.C. can be said to have been made out. 29. Such is the consistent view, as decided by the Apex Court in the case of V.Y.Jose & Anr. Vs. State of Gujarat & Anr., 2009 3 SCC 78 , what was largely relied upon by the petitioners, on this issue under reference. 30. Upon further perusal of the complaint, it left a clear impression that it was primarily a case, where the complainant/opposite party had alleged breach of contract on the part of the petitioners in not making the entire payments in respect of the bills, the complainant submitted for the services already rendered to the petitioners, because it is found mentioned in the averments of the complaint, that after persuasion of the matter with the higher authorities of ACC Ltd., some part payment had already been made to complainant/opposite party. 31. Relying upon the averments contained in the complaint together with the materials produced, it is very clear that at the time of entering into the agreement, either the first agreement, or even the second agreement after the petitioners assumed controlled over the administration of ACC Ltd., there was no culpable intention on the part of the petitioners to cheat the complainant. The subsequent generation of criminal intention on the part of the petitioners, if there be any, during subsistence of long standing commercial relationship entered into between the parties, would be of no consequence, because such criminal intention was missing, when it began. No suspicion of any nature was shown or even alleged against the petitioner. It is also not the allegation of the complainant, as it is not found in the complaint, that the agreement was entered into with fraudulent or dishonest intention on the part of the petitioners inducing complainant/O.P. to enter into such a contract. For non-reliasation of the service charges, and also for the settlement of the accounts between the parties, at best the dispute between the parties could be taken to be civil in nature, for which criminal court is not permitted to be made use of, as a short cut easy and quick remedy giving entity. The case of the petitioners, as canvassed, is found to be covered by the decision reported in delivered in the of Medmeme, LLC & Ors. Vs. IHORSE BPO Solutions Pvt. Ltd., 2018 13 SCC 374 , The ratio of such decision was thus profitably attracted to, by the learned advocate for the petitioners. 32. The argument raised by the petitioner that for the enforcement of the breach of the promise arising out of a commercial transaction in regard to failure to pay the service charges to the extent demanded would not entangle the petitioners in a criminal prosecution, appears to carry strong force in it, in view of decisions reported in (i) delivered in the case of V.Y.Jose & Anr. Vs. State of Gujarat & Anr., 2009 3 SCC 78 (ii) delivered in the case of Monikanta Pal Vs. The State & Anr.,1998 SCCOnline(Cal) 247 , (iii) delivered in the case of Vinod Natesan Vs. State of Kerala & Ors., 2019 2 SCC 401 , (iv) delivered in the case of Medmeme, LLC & Ors. Vs. IHORSE BPO Solutions Pvt. Ltd., 2018 13 SCC 374 , and (v) delivered in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr.,2014 10 SCC 633 , the ratio of such decisions being reached by the Apex Court would give rise to the emergence of a settled proposition that a civil liability cannot be converted into a criminal liability. 33. Vs. State of Bihar & Anr.,2014 10 SCC 633 , the ratio of such decisions being reached by the Apex Court would give rise to the emergence of a settled proposition that a civil liability cannot be converted into a criminal liability. 33. There cannot be any divergence of opinion, as submitted by the learned advocate for the complainant/O.P. No.2 that directors and the officials of the corporation represent the directing mind, and the state of mind of this officials would be the state of mind of the company, and treated by law as such. The aforesaid submission appears to be made relying on a decision, reported in delivered in the case of Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors., 2011 1 SCC 74 Significant aspect to be gathered from materials is that if there was any culpable dishonest intention on the part of the petitioners, while entering into transport agreement between the parties, without which the allegation of having committed cheating by manipulating the computer data is of no consequence. 34. Learned advocate for the O.P. No.2 while supporting continuance of the instant proceeding, pending in the court below, submitted relying upon decisions reported in delivered in the case of S.P. Gupta Vs. Ashutosh Gupta, 2010 6 SCC 562 and rendered in the case of State of Gujarat Vs. Afroz Mohammed Hasanfatta,2018 2 Scale 634 that the required criminal intention on the part of the petitioners to gather, if it was since beginning the commercial transaction, would be a question of fact, which could only be gone into during trial. It was submitted accordingly, that in a case instituted on a police report, the Magistrate would be only obliged to pass an order issuing summons to the accused upon considering the police report, and the other documents submitted therewith satisfying himself that there was ground for proceeding against accused, and when learned Magistrate had taken cognizance upon receiving his satisfaction with materials produced, the instant proceeding should not be quashed. 35. The copy of the charge sheet subsequently enclosed with the revisional application would reveal that nothing was recovered in course of investigation from the computer maintained by the petitioners, alleged to have been manipulated to enforce a lesser amount of service charge, compared to the actual amount claimed with a view to causing wrongful loss to the complainant. 35. The copy of the charge sheet subsequently enclosed with the revisional application would reveal that nothing was recovered in course of investigation from the computer maintained by the petitioners, alleged to have been manipulated to enforce a lesser amount of service charge, compared to the actual amount claimed with a view to causing wrongful loss to the complainant. It is only as many as five (5) documents, being relied upon by the prosecution, are found recovered during the course of investigation, relying upon which the settlement of accounts pertaining to the service charge claimed, was sought to be settled, so as to make out a case of cheating, for which criminal prosecution is not at all called for. As has already discussed that the moment when the agreement was entered into between the parties, there was no culpable intention to make out a case of cheating, as alleged, without which the instant prosecution is not encouraging one. Therefore, such decisions will hardly have any relevance in context with the averments contained in the complaint. 36. Shelter was further taken by the learned advocate for the O.P. on decisions reported in delivered in the case of Rajesh Bajaj Vs. State NCT of Delhi & Ors., 1999 3 SCC 259 and rendered in the case V. Rabi Kumar Vs. State Rep. by Inspector of Police, District Crime Branch, Salem, Tamil Nadu & Ors., 2018 15 Scale 907 in order to establish that the simply because an offence was taken place during the course of commercial transaction, the same could not be ground to throttle a legitimate prosecution at its initial stage. Thus according to complainant/O.P. No.2 there were many occasions when in course of commercial and monetary transaction, the offence of cheating was taken place. 37. What is more important in a case of this nature was to establish the criminal intention, the presence of which to commence since beginning, when the commercial transaction entered into between the parties, without which it is very difficult to accept a case of cheating as contended. The decisions so referred are distinguishable on facts situation. 38. It is not the invariable proposition of law that there cannot be any criminal action alleging a case of cheating even after filing of civil suit for enforcing a civil liability. The decisions so referred are distinguishable on facts situation. 38. It is not the invariable proposition of law that there cannot be any criminal action alleging a case of cheating even after filing of civil suit for enforcing a civil liability. While exercising option for a criminal case on the ground of alleged cheating, with other incidental offences, without showing the basic ingredients of the offences complained of, available from the materials collected during the course of investigation, continuance of such criminal proceeding is against the spirit of law. 39. Since, there is some apparent anomaly as regards the person deceived in consequence of the alleged deception of the petitioner, as available from Paragraph-12 of the complaint, which is the hardcore of the offences complained of, the instant criminal prosecution will not be sustainable without proof of criminal intention on the part of the petitioner No. 1 to 4, and that too from the beginning of the transaction. 40. At the same time, it is also not the invariable rule that when there is civil suit pending between the parties, there cannot be any criminal prosecution for a rightful case of cheating having been established prima facie in course of the investigation. 41. Learned advocate for the complainant/opposite party No. 2 thus rightly referred decision reported in 2019 (19) SCALE 79, rendered in the case of Dr. Lakshman Vs. The State of Karnataka & Ors., 2019 14 Scale 79 , wherein it was propounded that mere filing of suit for recovery of money and the complaint filed under Section 138 of the Negotiable Instruments Act, by itself will be no ground to quash the criminal proceedings. 42. It is very significant to note that the complainant/opposite party neither invoked jurisdiction of civil court for making enforcement of an alleged breach of promise pertaining to the service charges remaining unpaid on the ground of demand of 10% kickback of actual amount claimed in the bill, nor taken recourse to arbitral proceeding for resolving the dispute surfacing over the settlement of accounts with regard to the service charges uptill now. 43. 43. Institution of the instant criminal case, thus would neither estop the complainant/opposite party from taking recourse to the arbitration as per arbitral clause contained in the transport agreement, nor would prevent from filing appropriate civil litigation for the enforcement of the breach of promise of an agreement, subject to the fulfillment of the conditions of law. 44. The document being relied upon by the complainant may be of useful assistance to make out an alleged case of breach of promise in regard to the transport agreement entered between the parties. 45. While advocating continuance of the instant proceedings before the court below, learned advocate for the complainant/opposite party submitted that inherent jurisdiction under Section 482 of the High Court though wide enough, but would have to be exercised sparingly, carefully and with caution, the sole object being not to stifle a legitimate prosecution at its initial stage. 46. Reference was accordingly placed by complainant/opposite party on decisions reported in delivered in the case of Sau. Kamal Shivaji Pokarnekar Vs. State of Maharashtra & Ors., 2019 AIR(SC) 847 , and delivered in the case of Alka Bapu Gund Vs. Prakash Kanhaiyalal Kankaria & Ors., 2017 AIR(SC) 724 , to establish that without requiring the materials collected during the course of investigation to be tested in trial, it would be premature for the court to quash the proceeding. 47. The settled proposition is that a person should not undergo harassment and litigation in the absence of prima facie case being made out against him. The unwanted harassment, the agony, anxiety of the person unnecessarily charged with criminal offence are matters of strong consideration in a case where prima facie case, complained of, is not made out. As has already discussed that the very ingredients of the offence complained of under Section 420 were found missing in the instant case, so it would be an abuse of the process of court for the continuance of the instant criminal proceedings. 48. The decisions so referred in this issue, in the given set of facts and circumstances would be without any consequence. 49. 48. The decisions so referred in this issue, in the given set of facts and circumstances would be without any consequence. 49. Since in this case the offence of cheating with other offences was alleged to have been committed in consequence of manipulation of computer data of the petitioners' with a view to causing wrongful loss to complainant/opposite party No. 2 without proof of fraudulent or dishonest intention, the commencement of which from beginning the transaction on the part of the petitioners with respect to commercial transaction held between the parties, it would not be justified to go for a trial. 50. Accordingly, the instant criminal proceeding deserves to be quashed for the decision made above. 51. The instant criminal prosecution being registered as G.R. Case No. 37 of 2013, of learned A.C.J.M., Asansol thus stands quashed. 52. The petitioners are accordingly discharged. 53. The criminal revisional application succeeds, and accordingly disposed of. 54. Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities.