D N BHATTACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This rule is directed against the order dated August 21, 1968, passed by Sri K. D. Banerjee, Presidency Magistrate 9th Court, Calcutta in G.R. Case No. 529 of 1966.

(2.) The material facts are as follows: (a) The Additional Registrar of Companies, Calcutta lodged a complaint dated June 2, 1964, with the Additional Inspector General of Police, Special Police Establishment, New Delhi, which was recorded as first information report in this case. After investigation, the Special Police Establishment submitted a charge-sheet against four accused persons, D. N. Bhattacharjee, H. K. Ray, Bonamali Pathak and Kalipada Bhattacharjee, being petitioners in this rule, under Section 409, 467, 468 and 477A of the Indian Penal Code. (b) The prosecution case in brief is that the Bengal Luxmi Cotton Mills Ltd., a public limited company (hereafter referred as the company), has its registered and head office at Calcutta and factory at Serampore. From 1945 to January 15, 1957, the Bengal Textile Agency Pvt. Ltd. was its managing agents and the accused No.1 D. N. Bhattacharjee was the Secretary of the managing agent and in that capacity had dominion and control over the funds of the company. After termination of the managing agency arrangement on January 15, 1957, and thereafter the accused No.1 was appointed the Managing Director of the company for a term of five years, extended for a further term of five years. The other accused persons were the Accountant, Cashier and Asst. Accountant of the Company during 1953 to 1963. During 1954 to 1962 the accused persons with others became parties to a criminal conspiracy to commit or cause to be committed the offence of criminal breach of trust in respect of the funds of the company over which the accused No.1 has dominion and control. In pursuance thereof a sum of Rs.2 lacs came to be misappropriated on account of payment for certain machinery while in fact no purchase was made nor there was any existence of the supplier firm. They also misappropriated a sum of Rs.4,83,000/- belonging to the company in course of these years on account of bonus. Bonus was used to be declared by the accused No.1 every year and was paid to the factory workers year after year. Requisitions for bonus were made from the factory to the head office. Much heavier amounts were used to be drawn by the company from the bank and other sources and the requisitioned amounts were used to be sent to the factory with money challans while the overdrawn amounts were misappropriated every year. The money challans were returned by the factory which were treated as vouchers by the head office of the company and alterations were made thereon to show falsely that the overdrawn amounts were sent to the factory for distribution to workers. Necessary alterations and falsifications of relevant documents, cash books and ledgers were made at the head office by one or other of the accused persons. (c) On March 25, 1966, the learned Chief Presidency Magistrate, Calcutta, on a consideration of the allegations incorporated in the charge-sheet, took cognizance of offences under Sections 409/477A Indian Penal Code read with the above sections. Subsequently on June 22, 1966, the learned Chief Presidency Magistrate rejected the application filed by the prosecution for taking cognizance of offence under Section 467, Indian Penal Code on the facts stated in the charge sheet. (d) On July 2, 1966, the case was transferred to Sri G. C. Chatterjee, Additional Chief Presidency Magistrate II for disposal. After hearing the parties regarding consideration of charge, the learned Magistrate by order dated March 30, 1967, held that as a transferee Court, he was entitled to proceed to enquire into allegations of offence under Section 467 of the Indian Penal Code and directed that an inquiry under Section 207A Chapter XVIII of the Code of Criminal Procedure should be held. (3) On May 10, 1967, when the case came up for inquiry, the prosecution filed an application stating that there are no witnesses as to the actual commission of the offences and praying that the Court may proceed with the inquiry on the basis of the documents referred to in the report under Section 173 of the Code. The defence filed an application praying that in interest of justice the witnesses should be examined in the proposed inquiry under Section 207A (4) and 540 of the Code of Criminal Procedure. (f) By order dated June 1, 1967, the learned Magistrate recorded that he was satisfied, on a perusal of the documents, that in the present case there is no witness to the actual commission of the offences alleged in the charge-sheet. The learned Magistrate was of the opinion that the alleged charge of conspiracy is mainly inferential from the set-up of the administration of the offices of the company and the procedure for purchase of machinery to be evidenced by relevant documents seized, as also the procedure for requisition and payment of bonus to workers to be evidenced by documents. The alleged charges of criminal breach of trust of a number of amounts at different times, of falsification of accounts of many account papers over a wide period and of forgery in respect of several documents are also expected to be evidenced by documents. He was of the opinion that the statements of witnesses examined during investigation do not reveal anything entitling the Court to the view that examination of any of them is necessary in interest of justice. On a consideration of the decisions in (1) Sri Ram v. State of Maharastra, AIR 1961 SC 674 and (2) Kripal Singh v. State of Uttar Pradesh, AIR 1965 SC 712, the learned Magistrate held that there are no eye-witnesses to the offences alleged and it is not necessary in interest of justice to take evidence of one or some of the other witnesses for the prosecution, under second part of sub-section (4) of Section 207A or under Section 540 of the Code and accordingly by order dated June 1, 1967, he rejected the prayer of defence for examination of witnesses. The learned Magistrate thereupon recorded that stage was then set for proceeding with the inquiry under sub-sections (6) and (7) of Section 207A of the Code. (g) It appears that the defence moved this Court in revision against the said order, but the application was summarily rejected. (h) On the transfer of Sri G. C. Chatterjee, Additional Chief Presidency Magistrate II, Calcutta, the Chief Presidency Magistrate, Calcutta, withdrew the case to his own file and transferred the case to Sri K. D. Banerjee, Presidency Magistrate, 9th Court, Calcutta for disposal. (i) It appears that thereafter during November 16, 1967, to August 1, 1968, three were elaborate arguments by the parties on the prosecution case with reference to the police papers under Section 173 of the Code when the defence against challenged the propriety of non-examination of any witness in the inquiry. (j) On August 2, 1968, the defence filed two petitions, one for examining certain persons named therein as witnesses, and the other for summoning one Satish Chandra Choudhury who is alleged to have been firstly the Managing Director of the Managing Agents and lastly as the Chairman of the Company, as accused. The defence also prayed for a comprehensive order after hearing prosecution reply and upon considering the entire matter. The petitions were accordingly directed to be kept with the record to be considered at a later suitable stage. (k) On August 17, 1968, the defence filed an application for summoning one Dulal Chandra Ghosal alleged to be a witness to entrustment and misappropriation of Rs. 2 lakhs and Rs. 1 lakh by the accused No. 1 and also one Shib Bhusan Mukherjee alleged to be a witness to the falsification of documents. By another application the defence stated that Satish Chandra Choudhury was in the same position as accused No.1 or at least an accomplice while some others named therein are not only partisan witnesses but accomplices in the offences alleged. It was accordingly prayed that unless they are made accused and thereafter granted pardon and then examined as witnesses, their statements under Section 161 of the Code of Criminal Procedure cannot be considered as materials available under Section 207A(6) of the Code. (1) Regarding the examination of the witnesses, the learned Magistrate was of opinion that his predecessor in his order No.45 dated June 1, 1967, upon hearing both sides, came to the decision that there are no eye-witnesses to the offences alleged and it was not necessary in interest of justice to summon and examine any witness for prosecution under the second part of sub-section (4) of Section 207A or under sec. 540 of the Code. After rejecting the contentions of the defence, it was recorded in the said order of June 1, 1967, that the stage then was set for proceeding with inquiry for commitment under Section 207A(6) and (7) of the Code. In view of the Police papers under Section 173 of the Code, which appears to him to be sufficient to lead him to a decision in this inquiry, the learned Magistrate Sri K. D. Banerjee did not think it necessary to reopen the stages prior to Section 207A(6) of the Code. The prayer for examination of witnesses was accordingly rejected by Order No. 83 dated August 21, 1968. (m) as to the other petition, the learned Magistrate by the same order reserved his decision till his final order in the inquiry. (n) Against the said order dated August 21, 1968, the accused persons have moved this Court on which the instant rule has been issued.

(3.) Mr. Priti Bhusan Burman appearing for State raised a preliminary objection, contending that as the accused petitioners moved a petition for examination of alleged eye-witnesses to the offences under provisions of Sections 207A(4) and 540 of the Code and the same was rejected by the learned Additional chief Presidency Magistrate on June 1, 1967, and was not interfered with by this Court in revision, the petitioners are not entitled in law to move successive application for the identical relief. Mr. Burman relying on the principles of issue estoppel, argued that in view of previous order dated June 1, 1967, the accused persons must be precluded from reagitating an issue which has already been decided against them and there must be a finality in respect of orders passed at different stages of inquiry.