NABA KUMAR BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) BY this application dated 29. 1. 2007 under Article 227 of the constitution of India, the order dated 5. 1. 2007 passed by learned Additional sessions Judge, Barrackpore in Criminal Revision No. 194 of 2006 affirming thereby the order dated 16. 6. 2006 passed by learned Judicial Magistrates, 3rd Court, Barrackpore in case No. C-851 of 2003 under Section 420/406 of the IPC whereby the learned Magistrate rejected the prayer of the petitioner under Section 245 (1) of the Cr. P. C. is under challenge. The O. P. No. 2 herein as complainant lodged a complaint with the learned CJM, barasat being case No. C-851 of 2000 alleging that the petitioner-accused proposed to him for a partnership business which he agreed to, as a result of which a partnership agreement was drawn up between them on 5. 12. 2002 and the petitioner-accused received Rs. 2 lac from the complainant for carrying on partnership business to the name and style of M/s. Banerjee chemicals Industries Estate. The accused kept the money in his own personal account in Oriental Bank of Commerce. The complainant came to be involved in partnership business for some time but owing to personal difficulties he informed the accused-petitioner through letter dated 28. 3. 2000, in reply to which the accused expressed his readiness to repay the money by instalments. Apart from the letter in reply dated 20. 4. 2000 the accused also reiterated his assurance of returning the money through another letter dated 20. 5. 2000. Money was not repaid despite reminders followed by advocate's letter dated 30. 5. 2000. When the complainant confronted the accused on 25. 6. 2000 the latter refused to make repayment of the money.

(2.) AFTER examination of P. W. 1 before charge the accused-petitioner filed a petition before the learned Magistrate under Section 245 (1) of the cr. P. C. praying for discharge on the ground that no case was made out against him. The order of rejection by the learned Judicial Magistrate, 3rd court, Barasat dated 16. 6. 2006 was affirmed in criminal revision No. 194 of 2006 by the learned Additional Sessions Judge, Barrackpore in his order dated 5. 1. 2007 and it is against this order of the learned Judge in the Court below that this revisional application has been preferred on the grounds inter alia that the learned Judge in the Court of revision failed to appreciate that non-compliance with the terms of partnership agreement amounted to civil dispute and no case of criminal breach of trust or of cheating was maintainable. I have heard Mr. M. Goswami, learned Advocate for the petitioner and Mr. Swapan Kumar Mallick, learned Advocate for the State of West Bengal. The O. P. No. 2 who is the defacto-complainant did not turn up. Affidavit of service shall be kept with the record. The learned Magistrate observed that on perusal of the evidence before charge sufficient materials were available to frame charge under Section 420/406 of the IPC and the learned Additional Sessions Judge reasoned that since the trial Court observed that there were sufficient materials to frame charge against the accused it could not be said that there has been improper use of jurisdiction. The learned Judge succinctly recorded evidence of the complainant before charge and referred to partnership agreement and the correspondences between the parties. The complainant-O. P. No. 2 stated in his evidence that he had entrusted Rs. 2 lac to the present petitioner who did not deposit the amount in the bank as per the agreement and thus according to the learned Judge there was no reason to disturb the finding of the learned trial court.

(3.) DURING hearing the point that has been canvassed is whether on the facts pleaded in the petition of complaint which was referred to in the partnership agreement it can be said that the petitioner, a co-partner has misappropriated the property, i. e. a sum of Rs. 2 lac, as allegedly given by the complainant to the petitioner in connection with running of the partnership business. Though normally annexures to the petition of complaint which in the instant case is a partnership agreement should not be looked into in the revisional forum as it is a material banked upon by the defence to be tested only at the trial here is an opportunity to look at the agreement in view of the said agreement having been referred to in the petition of complaint itself and has been admitted in evidence before the learned Magistrate as exhibits and also relied on by the learned Additional Sessions Judge. The agreement for partnership dated 5. 2. 2002 executed by and between the parties constitutes a partnership business whereby the complainant who is a second party has contributed Rs. 2 lac and the first party who is the present petitioner offered the space of the partnership firm for running the partnership business. In terms of the agreement profit and loss of the firm would be debited or credited in accordance with their respective share to capital and current account. A bank account of the firm was to be opened with a nationalized bank as would be mutually determined by the partners and the partners would jointly operate the account. There were other terms which all may not be narrated here as they are not necessary. Thus in terms of the petition of complaint as also of the partnership agreement a sum of Rs. 2 lac was invested in the partnership business and the money was supplied by complainant-O. P. No. 2. The allegation in the petition of complaint is that the accused/petitioner kept the money in his own personal account and as some time after the business had been run the complainant was unable to carry on with the partnership business or be involved in the business any more he asked the accused to return the money but in vain. On behalf of the State it has been submitted that in view of the provision of section 397 (3) of the Cr. P. C. this revisional application which is against the order of the learned Sessions Judge dismissing the revision of the present petitioner is not maintainable. It is further submitted that when the learned Additional Sessions Judge after elaborately considering the matter found the revision before him not maintainable it is not open to the High court to exercise inherent power under Section 482 of the Cr. P. C. particularly when there was no miscarriage of justice. Reference in this connection has been made to Kailash Verma v. Punjab State Civil Supplies corporation and Anr. , (2005)2 SCC 571. A full Bench decision of Patna High court in Surendra Singh and Ors. v. State of Bihar and Ors. , 1991 Cr LJ 3040 has already been referred to. Their Lordships of the High Court observed that where a person has already invoked revisional jurisdiction of the sessions Judge under Section 397 of the Cr. P. C. and where second revisional application is barred under Section 397 (3) of the Cr. P. C. it would indeed require very exceptional circumstances to warrant interference under article 227 of the Constitution of India because the power of superintendence is not meant to circumvent the statutory bar and where revision, appeals or applications under Section 482 of the Cr. P. C. are maintainable for setting aside any order of the inferior Courts there is no question of exercise of power under Article 227 of the Constitution although judicial orders passed by the criminal Courts are amenable to the jurisdiction of the High Court under Article 227 of the Constitution. Accordingly, it is submitted that where the learned Additional Sessions Judge was of the view that no wrong was committed by the learned Magistrate this Court upon an application under article 227 of the Constitution of India must not interfere with the order impugned and since application before this Court has not been made under section 482 of the Cr. P. C. the question of exercise of jurisdiction under article 227 of the Constitution of India does not arise. In reply to the submissions it has been stated by the learned Advocate for the petitioner that the nomenclature used in the cause title of the petition is immaterial, the material question being whether there is justification for exercise of inherent jurisdiction of the High Court if substantial question of law not traversed by the learned Judge in the Court below is shown at the threshold. A decision of the Supreme Court in Jitender Kumar Jain v. State of Delhi and ors. , 1999 SCC (Cr) 77 has been referred to by the learned Advocate for the petitioner to argue that it was improper for the High Court to dismiss an application under Section 482 of the Cr. P. C. only on the ground that an earlier revisional application before the Sessions Court under Section 397 of the Cr. P. C. was dismissed. It was observed that High Court's power under Section 482 of the Cr. P. C. and the power of revision under Section 397 of the Cr. P. C. are separate and even though a second revision does not lie before the High Court when one is dismissed by the Court of session the proceedings of the Court of session are still open to scrutiny by the high Court in exercise of the power under Section 482 of the Cr. P. C. The decision in Biswanath Mondal v. Shyamapada Mondal, 1989 C Cr LR (Cal)37 has already been referred to where the Hon'ble Judge observed that where the application is not directed against the order of the Magistrate but is against the order of the Sessions Judge bar of sub-section (3) of Section 397 of the Cr. P. C. does not operate.