SAURENDRA MOHAN BASU Vs. SAROJ RANJAN SARKAR

JUDGEMENT

(1.) These two Revisional applications are directed against an order passed by the Chief Presidency Magistrate, Sri Bijayesh Mukherji issuing process under Sections 467/109 and 471 read with Section 467 of the Indian Penal Code against the petitioners S.M. Basil and P.N. Talukdar. Revision Case No. 681 of 1959 has been filed by S.M. Basu and Revision Case No. 1049 of 1959 has been filed by P.N. Talukdar.

(2.) The petition of Complaint by the present complainant Saroj Ranjan Sarkar who is the youngest brother of the late Nalini Ranjan Sarkar, was filed on 3-4-59. But before the present complaint filed by Saroj Ranjan Sarkar, a previous complaint on the same facts was filed by Promode Ranjan Sarkar, second brother of the late Nalini Ranjan Sarkar. That complaint was filed on 17-3-54 and was dismissed under Section 203 of the Code of Criminal Procedure by the then Chief Presidency Magistrate Sri N.C. Chakravarti on 6-8-54. Thereafter, a Revisional application (Revision Case No. 1059 of 1954) was filed by Promode Ranjan Sarkar; but this Revisional application was dismissed or 8-7-55 by Debabrata Mookerjee, J. Then the complainant Promode Ranjan Sarkar applied for a certificate of fitness for appeal under Article 134(1)(c) of the Constitution; but such certificate was refused by a Bench of this Court on 1-9-55. Then the complainant applied for special leave from the Supreme Court and obtained such leave on 13-2-56, but ultimately the complainant Promode Ranjan Sarkar did not proceed with the appeal before the Supreme Court and withdrew it! by filing a petition on 12-3-59. The present complaint of Saroj Ranjan Sarkar, the youngest brother of Promode. Ranjan Sarkar, was filed on 3-4-59, i.e., about 22 days after his elder brother Pro-mode Ranjan Sarkar had withdrawn from the appeal before the Supreme Court.

(3.) The facts alleged by the complainant are briefly as follows:- P.N. Talukdar was a paid employee of the Hindusthan Co-operative Insurance Society Ltd. upto the end of July, 1953. He was also a Director of the N.R. Sarkar and Co. Ltd. N.R. Sarkar and Co. Ltd. was the Managing Agent of several public limited companies, e.g., Hindusthan Development Corporation Ltd., Hindusthan Heavy Chemicals Ltd. and Hindusthan Pilkington Glass Works Limited. Nalini Ranjan Sajkar during his life-time was the Governing Director of N.R. Sarkar and Co. Ltd. On 4th January, 1948, he obtained leave from the Directors of the company for a period of one year with a view to joining the cabinet o the West Bengal Government as Finance Minister and he assumed office as Finance Minister on the 23rd January, 1948. This leave was subsequently extended. Nalini Ranjan Sarkar was the owner of 4649 shares of N.R. Sarkar and Co. Ltd., and 299 shares of that company were held by P.N. Talukdar; 50 by Promode Ranjan Sarkar; Santi Ranjan Sarkar, son of a deceased brother of Nalini Ranjan Sarkar held one share and one sliare had been assigned to Dr. P. C. Roy and was held by him. Thus Nalini Ranjan Sarkar was the owner of the overwhelming proportion of shares and he was the Managing Director and for all practical purposes he was the owner of the company N.R. Sarkar and Co. Ltd., and controlled its affairs. On 31st July, 1951, Nalini Ranjan Sarkar executed a deed of trust in, respect of 3649 shares out of the shares held by him in N.R. Sarkar and Co. Ltd. and in respect of certain other shares with which we are not Concerned. By the Trust Deed he appointed Promode Ranjan Sarkar, P.N. Talukdar and Dr. N.N. Law as the Trustees, and the beneficiaries under the Trust deed were the four brothers of Nalini Ranjan Sarkar, namely, Promode Ranjan Sarkar, Pabitra Ranjan Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, and the son of a deceased brother, Santi Ranjan Sarkar. The balance of one thousand shares in N.R. Sarkar and Co. Ltd. was kept in deposit with P.N. Talukdar; and according to the complainant's case, that last was also held by him for the benefit of the complainant and his brothers. Nalini Ranjan Sarkar died on 25th January, 1953. A few days after his funeral ceremony had been performed, it is said, S.M. Basu informed the complainant about the existence of an unregistered agreement by which late Nalini Ranjan Sarkar had appointed P.N. Talukdar as the governing Director of N.R. Sarkar and Co. Ltd., for a term of seven years, and a transfer 3eed by which the late Nalini Ranjan Sarkar had purported to transfer absolutely one thousand shares of N.R. Sarkar and Co. Ltd., to P.N. Talukdar. At that time the complainant and his brothers did not give any credence to the statement of S.M. Basu; but on the 31st July, 1953. i.e., about six months after the death of Nalini Ranjan Sarkar, P.N. Talukdar resigned from his salaried post under the Hindusthan Co-operative Insurance Society Ltd. and sought to assume control of N.R. Sarkar and Co. Ltd. as the Managing Director, although, according to the complainant, previously he had all along been describing himself merely as a Director and he had never claimed to be the Manaing Director of N.R. Sarkar and Co. Ltd. and had not also drawn any salary as such. Shortly thereafter, Promode Ranjan Sarkar started correspondence with N.R. Sarkar and Co. Ltd. asking for an inspection of the disputed documents. On 22-9-53, there was a meeting of the Board of Directors'of the N.R. Sarkar and Co. Ltd. and at that meeting Promode Ranjan Sarkar was pre- sent, and in spite of his objection, a resolution was adopted By which the term of the office of P.N. Talukdar as Managing Director of N.R. Sarkaj and Co. Ltd. was renewed for another term of seven years with effect from 19th January, 1955, i.e., after the expiry of the term of seven years from the alleged original agreement dated 19th January, 1948. Thereafter, Promode Ranjan Sarkar started demanding an inspection of the documents more vehemently, and inspection was allowed to him .ultimately in presence of the lawyers of both the parties on 13-10-53, at which photostat copies of the disputed agreement bearing the date 19th January, 1948., and the deed of transfer dated 5th February, 1951, were taken, and the Minute Book of N.R. Sarkar and Co. Ltd. was inspected, although Promode Ranjan Sarkar and his lawyer were prevented at that time from taking a photostat copy of any page of the Minute Book. Thereafter, as already stated, Prornode Ranjan Sarkar filed his complaint on 17-3-54 which was ultimately dismissed. The allegation of the present complainant Saroj Ranjan Sarkar is more or less identical with the allegation of Promode Ranjan Sarkar in his petition of complaint, namely, that the accused petitioners along with two other persons named in the petition of complaint, namely, Dr. N.N. Law and Amiya Chakravarti and other person or persons unknown, entered into a conspiracy to fabricate a deed of agreement, a deed of transfer and proceedings in the Minute Book of N.R. Sarkar and Co. Ltd. in order to assume complete Control over N.R. Sarkar and Co. Ltd. In the petition if complaint filed by the present complainant Saroj Ranjan Sarkar, the circumstances tending to show that these documents were fabricated, were detailed as in the previous petition of Complaint by his brother Promode Ranjan Sarkar; and in paragraph 18, an additional circumstance was mentioned, namely, that the minutes of the alleged proceeding of the meeting of the Board of Directors stated to have been held on 16-1-48 were typed on a sheet of paper bearing the letter-head N.R. Sarkar and Co. Ltd., with telephone No. City 6091 printed thereon; but the City Exchange did not come into existence until December, 1948 and the telephone connection with the No. City 6091 was obtained for the first time by the Hindusthan Co-operative Insurance Society Ltd., on or about the 18th March, 1949; and that, therefore, the paper with the letter-head N.R. Sarkar and Co. Ltd. with the telephone No. City 6091 printed thereon could not have been in existence at the alleged date of the proceeding of the Board of Directors, namely 16-1-48.