KESHORE DEO GOENKA ACCUSED Vs. STATE

JUDGEMENT

(1.) THIS rule is for quashing proceedings pending in the Court of Shri R. P. Roy Choudhury, Presidency Magistrate, 11th Court, Calcutta, under Section 420 of the Indian Penal Code against the accused petitioner, Keshore deo Goenka in Case; No. C|998 of 1969.

(2.) THE facts leading to the Rule are chequered but can be put in a short compass. The parties are business men. The complainant carries on business in supplying paper cuttings to different Mills, while the accused is the chief executive and partner of Kishore and co, Agent of Orient Paper Mills Co. Ltd. of Brajaraj Nagore, Orissa. The parties are known to each other for sometime past and had several transactions before the incident in question which appears ultimately to be based on an agreement broad based upon some correspondence. On 18. 1. 68, the complainant filed a petition of complaint under section 420 I. P. C. against the accused in the Court of the learned Chief Presidency Magistrate, calcutta. The allegations inter alia, are that the complainant had supplied four wagons of white paper cuttings to the accused in August, 1967 and on 28. 8. 1967, after sending the last wagon when he went to the accused for the price of the paper cuttings, the latter could not be found. Subsequently when he met the accused and demanded the price from him on several occasions, he was put off on one ground or other and the complainant was thus cheated of the sum of Es. 13,688 for the value of the articles with interest therefore. The learned Chief presidency Magistrate, Calcutta examined the accused and by his order dated 18. 1. 1968 sent the matter to Shri S. N. Ghose, Presidency Magistrate, 15th court, for judicial enquiry and report. The learned Enquiring Magistrate thereupon examined three witnesses and perused numerous documents and papers filed in that context and ultimately recommended process to be issued against the accused under Section 420 I. P. C. On 4. 3. 68, the said report was perused by the learned Chief presidency Magistrate, Calcutta, and differing from the recommendations contained therein, he was pleased to dismiss the petition of complaint under Section 203 of the Code of Criminal Procedure. Two days thereafter, namely, on 6th March 1968, the complainant filed a fresh petition of complaint against the accused petitioner before the learned Chief Presidency magistrate Calcutta on the self same allegations charging him under Section 420 I. P. C. with only an apparently thin addition in the last paragraph of the said petition of another purported demand for payment on the 5th March 1968, significantly enough only one day before the filing of the second petition of complaint. The learned Chief presidency Magistrate thereupon issued process against the accused petitioner to stand his trial under Section 420 lp. C. and the second chapter of the present proceedings started. On the 10th June 1968, again when the case was fixed for hearing before Shri S. N. Ghose, Presidency Magistrate, 15th court Calcutta to whom the case was transferred for disposal, the complainant was again found absent and accordingly, the learned trying Magistrate discharged the accused on that day. Later on in course of the same day an application was filed before the learned trying Magistrate on behalf of the complainant praying inter alia, for a revival of the case and thereupon the learned magistrate was pleased by his order of the same date to revive the same and direct issue of summons against the accused persons without any opportunity being given to the said accused to be heard in connection with the matter. The case entered into the third chapter. The matter thereafter was further delayed on one plea or other and ultimately on 4. 9. 1968 the date fixed for hearing of the said case, the complainant was again absent on a petition annexing a medical certificate that he would not be able to attend the Court within the next six months. No witnesses were present and the learned Presidency magistrate by his order of the same date discharged the accused observing, inter alia, that "it is useless to drag the case any further. " There. was a curious silence for seven months and curiously enough at the end of the period the complainant filed another petition of complaint in the Court of the learned Chief Presidency magistrate on 11. 4. 1989 against the accused with the identical allegations merely adding that there was another demand made on the 4th April 1969, about seven days before the said petition of complaint was filed. Thereupon the learned Chief Presidency Magistrate directed that the said petition of complaint was to be put up with the previous record on the 16th April 1969, on which date he examined the complaint and perused the papers including the certificates granted by the Hospital. The learned Chief Presidency Magistrate, Calcutta, ultimately adjourned the matter till 21st April, 1969 and on that date being satisfied about the sufficient cause shown for the absence of the complainant on the date of hearing in the earlier case, issued summons under Section 420 I. P. C. against the accused. The orders referred to above and the proceedings based thereupon have been impugned and formed the subject matter of the present Rule.

(3.) MR. Mrityunjoy Palit, Advocate (with Miss Anjali Chatterjee, Advocate) appearing in support of the Rule, on behalf of the accused petitioner has made a three-fold submission. The first contention of Mr. Palit is that the procedure adopted during the trial has been bad in law and also not enjoined by any procedure known to law, resulting a serious prejudice to the accused petitioner. In this context Mr. Palit submitted that the effect of the order of dismissal on the first occasion, namely, on 4th March, 1968 after a fullfledged judicial enquiry wherein several witnesses were examined and numerous documents were put in, is a bar to the entertainment of a second complaint on the same facts and a failure on the part of the learned Chief presidency Magistrate to have considered the same has resulted not only in a nonconformance to the provisions of law but also in a failure of justice. A case on the point reported in (1) AIR 1962 sc 876 (Pramatha Nath Talukdar and anr. v. Saroj Ranjan Sarkar) was cited and the same will be considered in its proper context.