JAYANTA SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has ben filed under section 482 of the Code of Criminal Procedure praying for quashing of the investigational proceeding of Baranagar P.S. Case No. 144 dated 23.09.2002. After filing of the said revisional application a supplementary affidavit has been filed by the petitioner wherein it has been stated that during the pendency of this proceeding, charge sheet has been illegally submitted against the petitioner and as such, the petitioner has prayed for quashing of the entire proceeding as pending before the learned SDJM, Barrackpur.

(2.) It is the case of the petitioner that the opposite party No. 2 started a partnership business along with the petitioner which is styled as M/s. J.K. Distributors through a Deed of Partnership. Said partnership firm obtained distributorship from Savita Chemicals Ltd. for the purpose of sale and carrying business of lubricating oil under the brand name ?IDEMITSU?. The clearing and forwarding agent of said M/s. Savita Chemicals Ltd. was M/s. K.K. Enterprises of which Captain H.S. Jassal held an important post. It has been alleged by the opposite party No. 2 that since March/April, 2002 the petitioner was acting in an unfavourable manner and started paying more attention to the business of his father. The opposite party No. 2 alleged that he found shortage of funds of the firm and loss of day to day business due to such non co-operation of the petitioner. As a result of that misunderstanding, the opposite party and the petitioner dissolved the said business by way of a Deed of Dissolution dated 21.05.2002. After such dissolution the opposite party No. 2 found that some signed blank cheques, Band Drafts were missing and he apprehended that the petitioner took away those articles with the intention to cause loss to the said firm. The matter was reported to the Baranagar Police Station. opposite party No. 2 also alleged that the petitioner tried to influence M/s. Savita Chemicals Ltd. not to sell the goods to the opposite party No. 2 and he started the rumour that the opposite party No. 2 was no longer solvent. Even after the dissolution of the partnership firm the petitioner allegedly represented himself as a partner of the said firm. The petitioner and the co-accused entered into a conspiracy to undermine the business prospect of the defacto complainant. Due to all those reasons, the opposite party No. 2 submitted a petition under section 156(3) of the Code of Criminal Procedure before the learned Magistrate and same was sent to the P.S. for treating the same as FIR. On the basis of the said written complaint, a case under section 406/420 of the Indian Penal Code was started against the petitioner and against another person. The opposite party No. 2 also filed a suit before the City Civil Court, Calcutta wherein he prayed injunction against the petitioner and others. The petitioner, in his present petition, has also alleged that there were some monitors transactions in between the parties in connection with the business of the two partners. According to the petitioner, in order to harass him the opposite party No. 2 has initiated the criminal proceeding falsely against him. The First Information Report reveals that there was an extreme business rivalry between the two partners and the said FIR is devoid of any ingredients of the offences as alleged. The allegation as made in the FIR, even if it is taken in its face value, then also it will not justify the initiation of a criminal proceeding by the opposite party No. 2. The continuation of the said proceeding or rather the submission of charge sheet in the proceeding is an abuse of the process of law and it is a fit case where the proceeding pending before the learned Magistrate should be quashed.

(3.) I have already pointed out that at the time of hearing the learned advocate for the petitioner submitted that during the pendency of this proceeding charge sheet under section 406/420 IPC has been filed. In support of that he has drawn my attention to the supplementary affidavit filed by him and the copy of the charge sheet which has been annexed therewith. The learned advocate for the opposite party No. 2 or for the opposite party No. 1 also did not dispute this factual position. So the fact remains that a charge sheet has been submitted against the present petitioner on the basis of the allegations, as made out in the FIR. It has been alleged by the petitioner that there is no ingredients of the offence under section 406 or under section 420 of the IPC in the written complaint and the dispute in between the parties although being completely civil in nature, in spite of that the charge sheet has been submitted and according to the petitioner, the learned Magistrate was not at all justified in taking cognizance in respect of the present case. Be that as it may, I have already pointed out that cognizance has been taken under section 406 and 420 of the Indian Penal Code. From the definition of 406 of the Indian Penal Code it appears that two ingredients are necessary for constituting the said offence: (1) Delivery of property by the aggrieved to the accused and (2) subsequent misappropriation of such entrusted goods by the accused. So far as the present case is concerned, it appears from the written complaint as well as from the charge sheet that there was no delivery of property by the opposite party No. 2 to the accused/petitioner. In fact it is the admitted position that the opposite party No. 2 and the petitioner were the partners of the firm in question. In the said firm, the petitioner also had equal interest in respect of the property of the said firm along with the opposite party No. 2. So the petitioner was also an owner of the properties of the said firm like that of the opposite party No. 2. So question of delivery of any property of the firm by the opposite party No. 2 in favour of the petitioner does not arise at all. Consequently, as there is no entrustment, as required under section 406 IPC, so question of subsequent misappropriation does not arise at all. So far as the offence under section 420 of the IPC is concerned, it appears that in order to establish a prima facie under that section the defacto complainant is to make out a case of false and fraudulent representation by the accused, delivery of property by the aggrieved party to the accused being induced by said representation, and misappropriation of the said goods delivered to the accused, thereby causing wrongful loss to the aggrieved party and wrongful gain to the accused. I have carefully gone through the written complaint on the basis of which the present criminal case was started and it appears to me that nowhere in the said written complaint it has been alleged that any property belonging exclusively to the defacto complainant was entrusted to the petitioner and another and there is also nothing in the said written complaint to show that the petitioner and another person induced the defacto complainant by way of fraudulent misrepresentation to part with any of his property and thereafter the said property was misappropriated with the intention of obtaining wrongful gain by the petitioner and another. In absence of those materials, it cannot be said that the complainant has been able to make out a case under section 406/420 of the IPC. From the plain reading of the petition of complaint, it will appear that it is a civil dispute amongst the two partners over the running of the business and admittedly a civil suit has been instituted between the parties. Learned advocate for the opposite parties argued that in case there is any civil dispute between the parties, that cannot be a bar for a party to institute a criminal case against the other side. In support of that decision reported in 2000 C Cr LR (SC page 488 M/s. Medchl Chemicals & Pharma P. Ltd. v. M/s. Biological E. Ltd. & Ors.. And JT 1999(6) SC page 618 Trisuns Chemical Industry v. Rajesh Agarwal & Ors. have been cited. I have perused those decisions wherein it has been stated that simply because of the fact that a civil suit over the matter is pending between the parties, that cannot be a bar for a complainant to institute a criminal case against the accused. The law is very much settled in this respect. But if we look into those decisions, then it will appear that there it has been discussed that although pendency of a civil suit is no bar for filing of a criminal case, still in order to take cognizance of a criminal offence it is to be established that there is prima facie material in respect of the alleged offence. If there are ingredients of the offence in question, then and then only a criminal Court can take cognizance of a particular offence. The learned advocates for the opposite parties further cited decisions reported in AIR 1990 Supreme Court at page 494 Mrs. Dhanalakshmi v. R. Prasanna Kumar & Ors. and 2000 C Cr LR (SC) page 488 M/s. Medchl Chemicals & Pharma P. Ltd. v. M/s. Biological E. Ltd. & Ors.. By citing those decisions the learned advocates for the opposite parties argued that the inherent power of the High Court for quashing of a proceeding under section 482 of the Code of Criminal Procedure is an exceptional power and it should be used very sparingly and cautiously. There is no dispute in respect of this legal principle as mentioned in those two decisions. There is no doubt that provisions of section 482 Code of Criminal Procedure is an exceptional provision and while exercising the said jurisdiction the Court must be very cautious and this exceptional provision should be invoked by a Court while in an exceptional case it is established that there is no criminal ingredients in the petition of complaint as filed by the complainant and the allegation as made in it is of such a nature that proceeding with a criminal case will be an abuse of the process of the Court as well as the wastage of time and money. The learned advocate for the petitioner cited several decisions in support of his argument. He has cited a decision reported in 2001 Supreme Court Cases (Cri) page 565 Alpic Finance Ltd. v. P. Sadasivan & Anr. wherein it has been held that merely because remedy by way of civil suit is available is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the alleged offence. This decision is also in the light of the decisions as cited by the learned advocates for the opposite parties. I have already pointed out that there is no dispute regarding this legal position and it is the settled principle of law that a criminal complaint is maintainable even though a civil suit is pending between the parties provided the complaint discloses the ingredients of the alleged offence. The learned advocate for the petitioner further cited decisions reported in 2000 Supreme Court Cases (Cri) page 786 Haridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr., AIR 1965 Supreme Court page 1433 (V 52 C 235) Velji Raghavji Patel v. The State of Maharashtra and AIR (69) Full Bench, Calcutta High Court Bhuban Mohan v Surendra Mohan in order to justify his submission that on the basis of the present petition of complaint no criminal case can be instituted against the petitioner. I have considered those decisions carefully. It has been clearly stated in those decisions that in order to make out a prima facie case under section 406 and 420 IPC the complainant is to show that the ingredients of those offences are present in the petition of complaint. Unless and until there are ingredients of the offences in question, there cannot be any criminal proceeding against a person under section 406 or under section 420 of the Indian Penal Code. In the decision reported in AIR 1965 Supreme Court page 1433 (supra) and AIR (69) (supra) Full Bench, Calcutta High Court, wherein it has been clearly stated that there is no question of entrustment of property by a partner in favour of another partner and as such, a charge under section 406 of the Indian Penal Code cannot be framed against a partner as the property in question belonged to both the partners.