DHIRENDRA NATH MAITY Vs. GOURAV HIMATSINGKA

JUDGEMENT

(1.) The opposite party herein lodged a petition of complaint with the learned Chief Metropolitan Magistrate alleging offences under Sections 406/ 411/467/120B of the Indian Penal Code on the following facts:- The opposite party's father Dipak Kumar Himatsingka and mother Smt. Rohini Himatsingka would reside in Mumbai. Accused No. 1 Rakesh Himatsingka is the uncle of the complainant, while accused No.2 is an employee of the accused No. 1 who has been carrying on business at Premises No.6 Old Post Office Street, Kolkata-700 001. Accused No. 3 is the wife of the accused No.1 and accused Nos. 4 and 5 are daughters of accused No.1. The complainant's parents held 5 shares of M/s Shree Co-operative Housing Society Limited of 52/2 Ballygunge Circular Road, Calcutta-19. They were allotted nearly 50 per cent of the total land measuring about 26 cottahs at 13, Gurusaday Road, Calcutta-19, the market value of which would be about Rs. 3.50 crores. By an unregistered general power of attorney dated 8th August, 1994 the parents of the complainant nominated the complainant's grandfather B.P. Himatsingka, since deceased, as their constituted, attorney since they were residing in Mumbai and were unable to look after their affairs in Calcutta. The grandfather of the complainant was suffering from various ailments and left for abroad. The grandfather of the complainant and the complainant's parents executed a deed of revocation of the power of attorney whereby power of attorney was revoked on 29th May, 1996. Such revocation was to the knowledge of accused Nos.1 and 3. Dispute arose after the death of the grandfather of the complainant between the complainant's parents and the accused Nos. 1 and 3 who are the uncle and aunt of the de facto complainant. The complainant's parents requested the accused Nos. 1 and 3 to hand over all the original share certificates of the society but they avoided on flimsy pretext from time to time. After the death of the complainant's grandfather the original share certificates and other documents came to be in the custody of the accused No.1 and 3. The accused No.1 with intention to deprive the complainant's parents of their valuable securities started removing all the certificates documents, papers belonging to the complainant, his parents and brother from the depository in the third floor at 6, Old Post Office Street, Calcutta-1 Accused No.1 in collusion with the accused No. 2, said to be an employee of the accused No.1, took control of the documents. This was noticed by the complainant who was in Calcutta on 19th September, 1997. The complainant immediately lodged a complaint with the Hare Street P.S. It was also brought to the knowledge of the complainant's father by the complainant, and the complainant's parents by letter dated 4.10.1997 and 9.10.1997 informed the Co-operative society that the shares held in their names were misplaced and requested the Society not to transfer the shares in case the same was moved without prior intimation to them, but all on a sudden the society by letter dated 30.12.1997 informed the complainant that the shares had been transferred in the name of the minor son of the accused No. 1 and 3 and in the name of the HUF of the accused 1 that consisted of accused Nos.1, 3, 4 and 5 and the minor son of the accused No.1 and

(2.) The said society is functioning from the residence of the solicitor of the accused No.1. The fraudulent transfer was made sometime in November, 1996 on the basis of a deed purportedly signed by late B.P. Himatsingka as constituted attorney on 22.11.1996, that is much after the revocation of the said power of attorney.

(3.) The present application has been filed by the accused No.2 who is said to be the employee of the accused Nos. 1 and 3 and the ground for quashing of the proceeding against the present petitioner is that there is no material whatsoever against the petitioner to connect him with the charges framed; no offences punishable under Sections 120B read with Sections 406/468/471 of the IPC has been made out against the petitioner, that the evidence on record does not give rise to any suspicion against the petitioner of his entering into conspiracy with the accused Nos.1 and 3 that in the FIR lodged by the complainant with the Hare Street P.S. on 19.9.1997 he was not named, but he was named in the present complaint that evidence of Gourav Himatsingka PW5 and Dipak Kr. Himatsingka PW6 did not show that the petitioner had committed any covert or overt act, far less commission of forgery or removal of shares and documents that might constitute offences as alleged, that the petitioner not being a member of the family there was no question of him being part of any conspiracy to misappropriate the shares of the parents of the complainant that the alleged story of removal of the shares on September , 19,1997 has not been told by the complainant in the complaint as the shares had already been transferred in 1996 itself, that the materials on record even if remaining unrebutted were not such as would warrant conviction and accordingly the proceedings should be quashed so far as the petitioner is concerned.