SWARUP MAZUMDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner has assailed the order dated 13.12.2013 passed by the learned Judge, Special Court under the Prevention of Corruption Act, North 24-Paraganas, Barasat in Special Case No.12 of 2003 framing charge under Section 411 against the petitioner and other co-accused persons viz., Pranab Saha and Sanjib Saha and under Sections 409/418/468 of the Indian Penal Code against Tapas Saha. The prosecution case, as alleged, is to the effect that the defacto complainant was a dealer in medicine and carried on business under the name and style of 'Bina Enterprise'. Co-accused Tapas Ghosh was an employee of the defacto complainant. It is alleged that on various dates, said Tapas Ghosh in his capacity as a sales man and agent of opposite party no.2 was entrusted with medicines for effecting supplies. It is further alleged that as collections in respect of such supplies were very poor, suspicion arose in the mind of the defacto complainant and on enquiry, he found that Tapas Ghosh being entrusted with such medicine had misappropriated the same and had sold the said misappropriated medicine to the petitioner and other co-accused persons. Tapas Ghosh confessed to his guilt and gave a written undertaking that 62% of the medicine were sold to the petitioner and the other co-accused persons. First Information Report was registered being Barasat P. S. Case No.329 dated 5.6.2001 under Sections 409/406/418/468 of the Indian Penal Code against the said Tapas Ghosh. In the course of investigation, stolen property was allegedly recovered from the possession of the petitioner as well as other co-accused persons. In conclusion of investigation, charge sheet was filed under Sections 409/418/468/411 against Tapas Ghosh and other co-accused persons including the petitioner herein. The case was sent to the Court of the Learned Special Judge, Special Court under Prevention of Corruption Act, North 24-Paraganas, Barasat for trial and disposal. Charges were framed on 13.12.2013 under Sections 409/418/468 of the Indian Penal Code against co-accused Tapas Ghosh while charge was framed under Section 411 against the petitioner and other co-accused persons. The petitioner has assailed the impugned order of framing charge against him.

(2.) The learned counsel appearing for the petitioner submitted that coaccused Tapas Ghosh was neither a public servant nor an agent of the Government who was dealing in Government property. Hence, the Special Judge appointed under the Prevention of Corruption Act, 1988 or under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as 'the Act') was not competent to try the case. He further submitted that the learned Court below had not taken cognizance of the alleged offences but illegally proceeded to frame charge against the petitioner. He also submitted that there was no material on record to connect the petitioner with the alleged offence.

(3.) Mr. Banerjee, learned counsel appearing for the State submitted that there was ample material on record to connect the petitioner with the alleged offence. He submitted that the stolen articles were recovered from the petitioner creating strong suspicion against the petitioner justifying framing of charge. He, however, admitted that the co-accused Tapas Ghyosh was neither a public servant nor was he an agent of the Government handling Government property.