HIRAK CHAND DAWN Vs. MOHAR CHAND DAWN

JUDGEMENT

(1.) The instant revisional application under section 401/482 of the Code of Criminal Procedure is directed against an order dated 23rd March, 1994 passed by the learned Metropolitan Magistrate, Fifth Court, Calcutta in Case No.C/368 of 1993.

(2.) One Chapala Rani Dawn possessed gold ornaments weighing about 32 tolas and 3 annas and silver articles and coins weighing 203 tolas at the time of her death on 16th July, 1967. The total value of the said ornaments and articles would be about Rs. 7,78,975/-. It was her desire that the said ornaments and articles would be distributed equally amongst her sons and daughters, but she suddenly expired before she could fulfil such desire. For about 5 years after her death, the said ornaments and articles remained in the drawer of her almirah on the first floor of the premises No. 75/A, Mahatma Gandhi Road, Calcutta. A year later, it was mutually agreed by and between the sons and daughters of the deceased mother that the gold ornaments and other articles would remain in the custody of the opposite party No.1, Mohar Ch. Dawn, who was the eldest amongst all the sons and daughters and would be retained in the said almirah of the said premises. The petitioner is one of the sons of the Chapala Rani Dawn. In pursuance of the agreement, all the articles were entrusted with the opposite party No.1 and the key to the almirah and the drawer was handed over to him. On 8th September, 1990 as per custom of the family when the almirah and the drawer were unlocked to bring out the gold and silver ornaments and other articles for periodical examination and cleaning, it was detected that they were missing. It was believed by the petitioner and his other brothers and sisters that the opposite party No.1 in collusion with his wife, opposite party No.2 had converted the said gold and silver ornaments and other articles entrusted to him committing thereby a criminal breach of trust. Despite repeated demands for explanation, the opposite parties Nos. 1 and 2 failed to give any satisfactory explanation to account for the same. On that very date, that is 8.9.90, a FIR was lodged with the Amherst Street Police Station against the opposite parties Nos. 1 and 2 and it was diaried as section F case No. 324 dated 8.9.90 under sections 406 and 120B of the IPC. The petitioner complained of criminal breach of trust and criminal conspiracy by the opposite party No.1 and his wife opposite party No.2 but the accused being an officer of the Calcutta Police posted at Lalbazar, the police registered a case under section 380 IPC in stead of a case under sections 406/120B IPC. It is reasonably believed by the petitioner that the opposite party No.1 being a Police Officer attached to the Lalbazar Police Station, the Investigating Officer deliberately and wilfully delayed the investigation resulting in stoppage of the investigation and discharge of the accused persons under section 167(5) of the Criminal Procedure Code as amended by the West Bengal Amendment Act 24 of 1988. The order of stoppage of investigation and discharge was passed by the learned Additional Chief Metropolitan Magistrate on 15th April, 1993 without giving any notice or any opportunity of being heard to the petitioners. On coming to know of the said order of discharge, the petitioners submitted a petition of complaint before the Additional Chief Metropolitan Magistrate on September 6, 1993. The learned Chief Metropolitan Magistrate was pleased to take cognizance upon the complaint and transferred it to the Metropolitan Magistrate, Fifth Court under section 192(1) of the Criminal Procedure Code on 24.9.93. The complainant petitioner and his witnesses were examined between 24.1.94 and 23.3.94 under section 200 Cr PC. On 23.3.94, the learned Metropolitan Magistrate, upon consideration of the materials on record, was pleased to dismiss the complaint under section 203 Cr PC on two grounds viz. first, that the cognizance was taken on 24.9.93 long after the expiry of three years from the date of occurrence and as such, was barred by limits of time and secondly, that there is no believeable evidence on record to prove the existence of such a huge quantify of ornaments and articles and also the alleged entrustment thereof to the accused and as such, there was sufficient ground for issuing processes under sections 406/120B.

(3.) Being aggrieved by the order of dismissal, the petitioner has come up in revision impleading the opposite parties Nos.1 and 2 as well as the State. Despite service of notice, none of the opposite parties did enter appearance.