Calcutta High Court (Appellete Side)
M/S. Palashbari Tea Company Ltd & Others vs State Of West Bengal on 5 May, 2017
Author: Asha Arora
Bench: Asha Arora
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Asha Arora
C.R.R 423 of 2001
M/s. Palashbari Tea Company Ltd & Others
........Petitioners
Versus
1. State of West Bengal
2. Salil Kumar Ghosh
........Opposite Parties
For the Petitioners : Mr. Sabyasachi Banerjee, Advocate
Mr. Pradip Kumar Sarawagi, Advocate
For the Opposite
Party no. 1 : Mrs. Debjani Sahu, Advocate
For the Opposite
Party no. 2 : Mrs. Aiswarjya Gupta, Advocate
Heard on : 09.02.2017, 13.04.2017 & 02.05.2017
Judgment on : 5th May, 2017
Asha Arora, J.:
1. By the instant application under section 482 of the Code of Criminal Procedure the petitioners prayed for quashing of the proceeding of GR Case No. 1492 of 2000 arising out of Kotwali P.S Case No. 417 of 2000 dated 4th November, 2000 under sections 120B/407/465/463/471 of the IPC pending before the Sub- divisional Judicial Magistrate, Jalpaiguri (now Chief Judicial Magistrate, Jalpaiguri).
2. The backdrop of the matter leading to the present application may be summarized as follows:
The Opposite Party no. 2 Salil Kumar Ghosh filed a petition of complaint under section 156(3) of the CrPC before the Chief Judicial Magistrate, Jalpaiguri against the petitioners alleging commission of the offences punishable under sections 120B/407/465/468/471 IPC which was sent to the officer-in- charge of Kotwali P.S for treating the same as FIR. Pursuant thereto, Kotwali P.S Case No. 417 of 2000 dated 4th November, 2000 was registered for investigation. According to the complainant/opposite party no. 2, his firm named M/s. Electrical Concern submitted a quotation on 5th December, 1990 for electric work in the unit of the petitioner no. 1 Company which was accepted and an order was placed upon the complainant for execution of the aforesaid work which was duly completed. It is further alleged that the petitioner no. 1 failed to clear the bills despite reminders demanding arrear payment for the work done by the complainant. The complainant then moved a petition for winding up under the Companies Act, 1956 before the High Court at Calcutta being C.P. No. 546 of 1997. By an order dated 18th February, 1998 the aforesaid winding up proceeding was disposed of against which the complainant preferred an appeal before the Division Bench of this Court which is still pending. Further case of the complainant is that on 22nd September, 2000 one Lalan Prasad Singh went to the office of the petitioner no. 1 company to participate in the Annual General Meeting where the balance sheet, profit and loss account of the petitioner no. 1 company for the year ending on 31st March, 2000 under the heading Annual Report and Accounts, 1999-2000 was circulated and published. On perusal of the aforesaid Annual Report it appeared that the information regarding the pendency of the liquidation proceeding against the petitioner no. 1 was not disclosed therein and in the circumstances the shareholders of the petitioner no. 1 company could not consider the legitimate demand of the complainant. By suppression of the aforesaid fact regarding pendency of the liquidation proceeding the petitioners painted a rosy picture of the company and its shareholders. The petitioners thereby committed criminal beach of trust and prepared the Annual Report by committing forgery and circulated the same to the shareholders and the public projecting it as genuine.
3. It is the contention of the petitioners that the liquidation proceeding at the instance of the complainant/opposite party no. 2 was disposed of in favour of the petitioner no. 1 company by an order dated 18th February, 1998 and no stay was granted in the appeal which was preferred by the complainant against the aforesaid order. It is evident from the order passed in the liquidation proceeding that there was no outstanding due and as such, complainant cannot be regarded as a creditor of the petitioner no. 1. The factum of non disclosure of the pendency of the appellate proceeding does not constitute an offence. The allegations in the petition of complaint do not disclose the ingredients of the offence of criminal beach of trust and forgery.
4. Mr. Banerjee, learned counsel appearing for the petitioners submitted that the petition of complaint does not reflect commission of any cognizable offence and the factum of non disclosure of a relevant information in the balance sheet does not constitute the offence of forgery or criminal beach of trust. It has further been argued that at best section 221 of the Companies Act, 1956 would be applicable in such a case. To circumvent the provisions of the Companies Act, malafide criminal proceeding has been instituted which is liable to be quashed. To buttress his submissions Mr. Banerjee placed reliance upon the case of JTH ZWart and others versus Indrani Mukherjee reported in 1990 C CrLR (Cal)1. Reference has also been made to the case of Sharat Babu Digumarti Versus Govt of NCT of Delhi reported in A.I.R 2017 Supreme Court 150.
5. Referring to the case of State of Orissa and Another Versus Saroj Kumar Sahoo reported in (2005) 13 Supreme Court Cases 540 the learned counsel for the opposite party no. 2 sought to impress that the power of the High Court under section 482 CrPC should be exercised sparingly and such inherent power cannot be invoked in the present case to stall a legitimate prosecution. Concurring with the submission on behalf of the opposite party no. 2 Mrs. Sahu, learned advocate appearing for the State contended that the investigation was stalled pursuant to an order of stay which was passed at the behest of the petitioners. Mrs. Sahu submitted that without completion of investigation it cannot be concluded that there is no prima facie case against the petitioners.
6. Section 482 of the CrPC envisages three circumstances under which the inherent jurisdiction of the High Court may be exercised, namely, (i) to give effect to any order under this Code, (ii) to prevent abuse of the process of any Court or (iii) otherwise to secure the ends of justice. In Saroj Kumar Sahoo's case (Supra) the Supreme Court observed that in exercise of its inherent power the High Court would be justified in quashing any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of the proceeding would otherwise serve the ends of justice. The categories of cases in which the High Court may exercise its power under section 482 CrPC have been set out in the case of State of Haryana Versus Bhajan Lal reported in 1992 Supreme Court Cases (Cri) 426 which are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. In State of Karnataka versus L. Muniswamy and Others reported in (1977) 2 Supreme Court Cases 699 the Supreme Court observed that the power under section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. Similarly, in Madhavrao Jiwajirao Scindia & Others versus Sambhajirao Chandrojirao Angre & Others reported in (1988)1 Supreme Court Cases 692 the Supreme Court held as follows:
"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
8. Bearing in mind the parameters laid down by the Supreme Court for exercising the power under section 482 CrPC I have examined the allegations against the petitioners made in the FIR and I am clearly of the opinion that the allegations made in the FIR even if taken at their face value and accepted in their entirety do not prima facie constitute any offence punishable under sections 120B/407/465/463/468/471 IPC against the petitioners. Since the contents of the FIR do not disclose any of the offences alleged against the petitioners, it would be futile to allow continuance of the criminal proceeding against them. I am therefore inclined to quash the criminal proceeding arising out of Kotwali P.S Case no. 417 of 2000 (GR Case No. 1492 of 2000) pending before the Chief Judicial Magistrate, Jalpaiguri.
9. The criminal proceeding arising out of Kotwali P.S Case No. 417 of 2000 (GR Case No. 1492 of 2000) is thus quashed.
10. The application being CRR 423 of 2001 is accordingly disposed of.
11. A copy of this judgement be sent forthwith to the learned court below.
12. Urgent photostat certified copy of this judgement, if applied for, be given to the parties upon compliance of requisite formalities.
(Asha Arora, J.)