SHANTI BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) These three Rules being Criminal Revision Cases Nos. 238 of 1969, 289 of 1969 and 290 of 1969 are interconnected and are, for the sake of convenience, taken up together for disposal as they arise out of the same order dated September 7, 1968, passed by Sri S.R. Bhowmick, Presidency Magistrate, Seventh Court, Calcutta, framing a charge under Sec. 120 read with Sec. 409 of the Indian Penal Code against all the four accused Petitioners and under Sec. 409 of the Indian Penal Code against the accused Petitioners Paramananda Agarwalla, Madan Mohan Gour and Jhumermal Agarwalla and are for quashing the charges as also the proceedings based thereupon pending before the learned Presidency Magistrate in Case No. C/3443 of 1967 -

(2.) The facts leading on to the present Rules can be put in a short compass. The complainant, Amar Chand Agarwalla, who is a partner of M/s Kalinga Bakery Biscuit Confectionery and Mineral Water Company, having its office and factory at Uditnagar, Rourkela in Orissa, was granted an actual users' import licence dated November 18, 1966, by the Joint Chief Controller of Imports and Exports, Calcutta, for import of skimmed milk powder and other commodities upto the value of Rs. 60,000 for using the same in the licensee's factory. A petition of complaint was filed by the complainant on August 26, 1967, before the learned Chief Presidency Magistrate, Calcutta, against one N.N. Bose of M/s N.N. Bose and Nephew, clearing agents, Custom House, Calcutta, under Sec. 409 of the Indian Penal Code alleging that the accused had committed criminal breach of trust in respect of 525 bags of skimmed milk powder imported from New Zealand on the strength of the complainant's licence without any consent, verbal or written, from the complainant and converting the same to his own use. A part of the goods was seized later on by the C.B.I., Calcutta Branch. The complainant prayed that the D.C., D.D., may be directed to take cognizance under Sec. 156 of the Code of Criminal Procedure against the accused, N.N. Bose, of the offence under Sec. 409, Indian Penal Code and the petition of complaint has been marked as Ex. H in the present case. The learned Chief Presidency Magistrate, after examining the complainant, directed on the same date a judicial enquiry by Sri K.D. Banerjee, Presidency Magistrate, Ninth Court, Calcutta and for his report by September 28, 1967 and fixed September 29, 1967, as the next date. The judicial enquiry thereafter started and was adjourned on one ground or other at the instance of the complainant. On November 15, 1967, the complainant filed an application before the learned Presidency Magistrate, Ninth Court, Calcutta, to send back the file to the learned Chief Presidency Magistrate, Calcutta, on the ground that the complainant was misdirected to file the complaint against the accused, so that a fresh complaint may be filed against the 'guilty persons who actually misappropriated the goods'. On November 21, 1967, another application was filed by the complainant before the learned Chief Presidency Magistrate, Calcutta, that he did not want to proceed with the case and sought leave of the Court to file a fresh petition. The learned Chief Presidency Magistrate, Calcutta, thereupon passed the following order:

(3.) Mr. J.P. Mitter, counsel (with M/s Prasun Chandra Ghosh, Advocate, Manotosh Mukherjee, counsel and Promode Ranjan Roy, Advocate) appearing on behalf of the accused Petitioners, in all the three Rules made a five -fold submission. The first ground raised by Mr. Mitter is a broad one relating to the maintainability of the present proceedings initiated by an interested complainant, who himself was made one of the accused in a case over the same subject -matter under Sec. 5 of the Imports and Exports (Control) Act, 1947, started at the instance of the C.B.I., E.O.W, Calcutta, being R.C. Case No. 23/E/67. The investigation therein as stated in the remand petition was also completed but the accused were discharged by the learned Chief Presidency Magistrate, Calcutta, by his order dated January 2, 1969, on an application filed before him by D.S.P., C.B.I, E.O.W., Calcutta, on the same date, praying for another four months' time to take a final decision therein as the allegations were the same in both the cases and the head office at New Delhi wanted to await the result of the present proceedings, being case No. C/3443/67, started at the instance of the accused No. 2, Amar Chand Agarwalla, under Sec. 409/120B of the Indian Penal Code. Mr. Mitter contended in this context that the procedure, as adopted above, has been grossly prejudicial lending assurance to the designs of a complainant, by way of a counter -blast and prejudicing the accused Petitioners in the present case and that for just and fair determination of the offences involved, the aforesaid case under Sec. 5 of the Imports and Exports (Control) Act, 1947, should be proceeded with. The second contention of Mr. Mitter is procedural and relates to the effect of the order of dismissal of the first complaint by the learned Chief Presidency Magistrate, Calcutta, on November 21, 1967, upon the maintainability of the second complaint filed on the same date over the same subject -matter and the proceedings based thereupon. In this context Mr. Mitter referred to the application dated November 15, 1967, filed by the complainant, Amar Chand Agarwalla, praying that the records may be sent back to the learned Chief Presidency Magistrate so that necessary permission may be prayed for to withdraw the said case on the ground that the complainant was misdirected to institute the said complaint and he submitted that the second complaint did not disclose any such new material which was not known to the complainant on the first occasion. In support of his contention, he referred to a decision of the Supreme Court in Pramatha Nath Talukdar v/s. Saroj Ranjan Satkar : A.I.R. 1962 S.C. 876 and the same will be considered in its proper context. The third contention raised on behalf of the accused Petitioner is that the factum and entrustment having not been established by clear and cogent evidence, there cannot be any breach of trust as alleged, far less any dishonest conversion leading on to the offence of conspiracy to commit the same. The fourth contention of Mr. Mitter is that both the first and the second petitions of complaint suppressed material facts vitiating the present proceedings which should accordingly be quashed. The fifth and the last contention of Mr. Mitter, which relates to the merits, is that the evidence on record does not establish the offence charged and a continuance of the present proceedings would be an abuse of the process of the Court. In this context Mr. Mitter relied on Exs. 2, 3, 6, 12, 20, 21, AA, Z and Z/1 and the oral evidence of P.Ws. 2, 5, 7 and 9. Mr. Priti Bhusan Barman, Advocate, appearing on behalf of the State in all the three Rules, joined issue. Mr. Burman made a broad submission that the prayer for quashing the present proceedings at this stage was premature when as yet two remaining witnesses and a Court witness remain to be examined. As to the first point raised by Mr. Mitter, Mr. Burman submitted that there was no legal bar to the institution of the present proceedings by the complainant opposite party No. 2 and that the cause of action involved in the two cases was not the same. Mr. Burman further submitted that the case registered at the instance of the State under Sec. 5 of the Imports and Exports (Control) Act, 1947, has only ended in a discharge because the Court had refused to adjourn the case further and therefore, there may not be any legal bar to revive the same, but on the said ground the present proceedings cannot be quashed. Mr. Burman next contended that the point of law raised by Mr. Mitter relating to the effect of the order of dismissal of the first complaint by the learned Chief Presidency Magistrate, Calcutta, on the maintainability of the second complaint, was not tenable and was based upon a misinterpretation of the principles laid down by the Supreme Court reported in, AIR. 1962 S.C. 876 . The learned Chief Presidency Magistrate, Calcutta, by his order dated November 21, 1967, merely dismissed the first complaint because of the prayer of the complainant that he did not want to proceed with the same and had not applied his mind to the merits of the case. As ton the fifth and last contention of Mr. Mitter relating to the merits of the case, Mr. Burman submitted that the contention raised was unwarranted and untenable at this stage and should be determined in a full -fledged trial. Mr. Sudhir Gopal Poddar, Advocate, appearing on behalf of the complainant opposite party No. 2 in all the three Rules, opposed the Rules. He supported the broad submission of Mr. Burman and contended that the question of quashing the proceeding at this stage was premature and the points at issue should be allowed to be determined in the trial which is well -nigh completed. Mr. Poddar joined issue with the first contention of Mr. Mitter that because previously case under Sec. 5 of the Imports and Exports (Control) Act, 1947, was registered at the instance of the C.B.I., E.O.W., Calcutta, resulting ultimately in the discharge of the present complainant, who was accused No. 2 therein, the latter had no right to file the present complaint under Ss. 120B/409, Indian Penal Code, against the accused persons, considered by him to be really guilty in connection with the transactions and that in any event on that ground alone the present proceedings should not be quashed. Mr. Poddar next submitted that in view of the nature of the order or dismissal of the first complaint by the learned Chief Presidency Magistrate, Calcutta, on November 21, 1967, upon the prayer of the complainant himself that he did not want to proceed with the said case, without any application of his mind to the merits of the case, the filing of the second complaint and the proceedings based thereupon are not barred in any way as alleged or at all. As to the third contention raised by Mr. Mitter that the evidence on record rules out any entrustment of the articles to the accused and therefore, there is no question of any dishonest conversion leading on to the offence of breach of trust as alleged, far less any conspiracy to commit the same offence. Mr. Poddar contended that it was unwarranted and untenable and that there is sufficient evidence to establish the factum of entrustment. As to the fourth contention raised by Mr. Mitter relating to a purported suppression of material facts in the two petitions of complaint Mr. Poddar submitted that the same was unwarranted and untenable and that as when the materials came to the knowledge of the complainant, those were duly disclosed in the petition of complaint. Mr. Poddar joined issue with the fifth and the last contention of Mr. Mitter that on merits the present proceedings are not maintainable and as such, should be quashed. Mr. Poddar submitted that the evidence on record warranted the charges framed and in any view of the matter the proceedings should not be quashed at this stage but should be allowed to be determined in the Court below by completing the evidence, more so when two remaining witnesses and a Court witness have yet to be examined.