K L BHASIN Vs. SUNDAR SINGH

JUDGEMENT

(1.) THIS Rule is at the instance of the accused -petitioner K.L. Bhasin for setting aside an order dated the 20th September, 1969 passed by Shri R.P. Roy Chowdhury, Presidency Magistrate, 11th Court, Calcutta framing a charge under Section 406, Indian Penal Code or in the alternative under Section 406, Indian Penal Code against the accused -petitioner in case No. C -3569 of 1968 and for quashing the said proceedings pending before the learned Magistrate. After the arguments were over, the Judgement was reserved and postponed several times at the prayer of the parties who prayed for time to settle the dispute. The talks of compromise however failed.

(2.) A petition of complaint was filed in the Court of the Chief Presidency Magistrate. Calcutta by the complainant, Sundar Singh, on behalf of the Associated Indian Enterprises (Private) Ltd. against the accused under Sections 420, 403/406. Indian Penal Code alleging inter alia that the complainant is the Sales Representative of the Associated Indian Enterprises (Private) Ltd., the main dealers and distributors of Messrs Ashok Layland Ltd. that the accused is the Managing Director of Bhasin Construction Co. (P) Ltd. carrying on business as Civil Engineering Contractor of the Hindustan Steel Works Construction Ltd.; a Government of India Undertaking; that in November, 1967 the accused approached the complainant's company for supply of three Layland Beaver Tippers valued at about Rupees 1,51,964.33p. each, including sales tax, in connection with the contract placed with the accused company by the Hindustan Steel Construction Ltd., that the said three vehicles were supplied between 15 -2 -68 and 8 -4 -68 as per terms and conditions mutually agreed upon; that after the supply of the first vehicle referred to above, the accused placed orders on 22 -2 -68 for another identical vehicle on the same terms and conditions and this vehicle also was supplied to the accused on or about 18 -9 -68; that it was agreed between the parties that a sum of Rupees 25,000.00 would be paid is advance for each vehicle which would continue to remain pledged with the complainant's company as security till the repayment of all dues of the company that in spite of the said agreement, the accused and his company with the consent of the complainant's company will be authorised to hypothecate with the Hindustan Steel Works Construction Ltd. the above mentioned vehicles on condition that the latter company will advance to the company of the accused a sum equal to 90% of the price thereof that it was further agreed that the accused will hold the said money in trust for and on behalf of the complainant's company and on receipt and realisation thereof will pay over the balance due to the complainant's company immediately; that at the time of the supply of the fourth vehicle in September, 1968 as referred to above, a letter "no objection" to the pledge of the said vehicle was also sent to Messrs Hindustan Steel Works Construction Ltd. as agreed upon; that thereafter the Hindustan Steel Works Construction Ltd. had paid to the accused on 1 -11 -68 the agreed sum viz., the sum equal to 90% of the value of the vehicle; that although the accused was under an obligation to pay off immediately the dues of the complainant's company amounting to Rupees 1,27,830.95p. on account of the fourth vehicle, he did not do so and was deliberately avoiding payment on false pretexts in spite of repeated demands causing thereby wrongful gain to himself and wrongful loss to the complainant's company : that the complainant's company would not have entered into the transaction if not induced by the representation of the accused that he would hold the money received from the Hindustan Steel Works Construction Ltd. in trust for the complainant's company and pay off the dues of the said company immediately on receipt and realisation thereof; that the accused had in violation of the legal construction fraudulently and dishonest -by misappropriated or converted to his own use the money received from the Hindustan Steel Works Construction Ltd. by wrongful withholding payment of the sum resulting in wrongful gain to the accused and in wrongful loss to the complainant's company; and that process accordingly may be issued against the accused under Sections 420, 403/406 Indian Penal Code. The learned Chief Presidency Magistrate, Calcutta on examining the complainant and on going through the papers issued summons under Sections 420 and 406, Indian P. Code against the accused by his order dated the 19th December, 1968. The case was thereafter transferred to the file of Sri R.P. Roy Chowdhury, Presidency Magistrate, 11th Court, Calcutta before whom three prosecution witnesses were examined by the 25th June, 1969. On 5 -7 -69 after the examination of P.W. 4, the learned trying Magistrate ordered as follows : "to 12 -7 -69 for hearing and framing of charge and cross -examination b/c of one of the witnesses as verbally prayed by the learned defence lawyer". On 12.7.1969 both the parties filed petitions for adjournment. An adjournment was again prayed for on 30 -7 -69. The learned trying magistrate ordered on that date as follows : "to 5 -8 -69 for framing of charge, if any". Adjournment was prayed for on the later date and the case was fixed on 6 -9 -69 "for appearance and framing of charges if any." 6th September, 1969 was declared a holiday and the case was fixed on the 20th September, 1969 "for framing of charge if any." On 20 -9 -69 P.W. 2 was cross -examined before charge and re -examined and some material exhibits viz. exhibits "A" series were proved through him. The learned trying Magistrate thereafter proceeded to hear the parties and frame alternative charges under Sections 406 and 403. I.P.C., against the accused who pleaded not guilty. 14 -11 -69 was fixed for cross -examination. There was an adjournment on that date till 22 -11 -69 on which date an application was filed on behalf of the defence stating inter alia that the accused wanted to move the High Court against the order framing charges against him and the learned trying Magistrate ultimately fixed 10 -12 -69 for cross -examination in case no stay order was received from the High Court. On 25 -11 -69 the present Rule was obtained impugning the charges framed and the maintainability of the proceedings.

(3.) MR . Nalin Chandra Banerjee, Advocate (with Mr. Dipak Kumar Sengupta, Advocate) appearing in support of the Rule on behalf of the accused -petitioner has made a four -fold submission. The first contention of Mr. Banerjee relates to procedure based on the order passed by the learned trying Magistrate deferring the cross -examination before charge of P.W. 2 from 24 -6 -69 to 20 -9 -69, till all the other prosecution witnesses were examined and the prosecution case was closed, inasmuch as the same is not enjoined under the Code. Mr. Banerjee next contended that the framing of the alternative charge under Section 406, I.P.C. or under Section 403, I.P.C. has been bad in law. The third contention of Mr. Banerjee is that the facts disclosed a dispute of a civil nature relating to a breach of agreement between two parties already known to each other and between whom there was a running transaction followed by substantial payments. It was further urged by Mr. Banerjee in this context that the previous transaction consisting of three vehicles was completed without any let or hindrance and in the case of the fourth vehicle dispute arose between the parties within the bounds of the agreement and as such the institution of the criminal proceedings has been an abuse of the process of the court. The fourth and the last contention of Mr. Banerjee related to the merits of the case based on the evidence adduced viz. that the materials on the record do not warrant the charges framed. Mr. Ajit Kumar Dutt, Advocate (with Messrs Anjit Kumar Ganguly and Rathindra Kumar Dev, Advocates) appears on behalf of the complainant -opposite party No. 1, Sundar Singh, opposed the Rule. Mr. Dutt submitted that though there is no specific provision for calling a witness for cross -examination at this stage under Section 252 of the Code of Criminal Procedure, it is so allowed as a rule of practice in the exercise of judicial discretion. He contended however that this is at best an irregularity which can be cured by excluding from consideration the evidence that has been brought on the record by such cross -examination before charge and the re -examination that followed. Mr. Dutt next contended that in view of the provisions of Section 236 of the Code of Criminal Procedure the framing of the alternative charge, in the facts and circumstances of the present case, has not been illegal or improper as alleged or at all. Mr. Dutt thirdly submitted that the dispute is not one of a civil nature, consisting of a running transaction and part payments made as alleged. In this context Mr. Dutt contended that the present case relates to an independent contract having nothing to do with the earlier contract dated 17 -11 -67 regarding the three vehicles, and that in view of the evidence on the record that the accused obtained the payment from the Hindustan Steel Works Construction Ltd., he should not have converted the same to his own use by wrongfully withholding the payment of the same to the complainant, causing thereby wrongful gain to him and wrongful loss to the latter. Mr. Dutt lastly submitted that it is premature to quash the proceedings at this stage and in any event the evidence on record having made out a prima facie case against the accused the charge framed should not be quashed. Mr. A.B. Pal, Advocate, appearing for the State also opposed the Rule and adopted the submissions of Mr. Dutt.