Calcutta High Court (Appellete Side)
Ramesh Kumar Agarwal & Anr vs The State Of West Bengal & Anr on 31 March, 2016
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 2300 of 2014
With
CRAN 974 of 2015
With
CRAN 3232 of 2014
In the matter of :
Ramesh Kumar Agarwal & Anr.
Vs.
The State of West Bengal & Anr.
For the petitioners : Mr. Tirthankar Ghosh; advocate.
Mr. Koushik Kundu; advocate.
Mr. Avik Chatterjee; advocate.
Mr. Satadru Lahiri; advocate.
For the opposite : Mr. Ayan Bhattacharyya; advocate.
Party no. 2 Mrs. Gopa Chakraborty; advocate.
For the State : Mr. Saryati Dutta; advocate.
Heard on : 19.06.2015, 16.07.2015, 22.07.2015,
31.07.2015, 11.08.2015, 12.08.2015,
13.08.2015, 25.08.2015, 31.08.2015,
10.09.2015, 11.09.2015, 23.09.2015,
28.09.2015, 06.10.2015, 13.10.2015,
16.11.2015, 17.11.2015, 26.11.2015,
15.12.2015, 21.12.2015, 27.01.2016,
28.01.2016, 29.01.2016, 02.02.2016.
Judgment on : 31.03.2016
SANKAR ACHARYYA, J.
This application under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been filed by two petitioners Ramesh Kumar Agarwal and Siddharth Agarwal @ Siddartha Agarwal as accused/petitioner in connection with ACGR Case No. 3737/2014 arising out of Behala Police Station (in short P.S.) Case No. 2332 dated 14.06.2014 under Sections 420/406/120 B of the Indian Penal Code, 1860 (in short I.P.C.) pending before the learned Additional Chief Judicial Magistrate (in short A.C.J.M.), Alipore, 24 Parganas (South). Petitioners have prayed for quashing of that proceeding. The opposite party no. 2 is de facto complainant of that proceeding.
In short, the case of the petitioners is that they are two directors of M/S Piyarelall Import and Export Ltd, a public limited company. That company deals in import and export of peas and pulses and various other commodities. Opposite party no. 2 is proprietor of Abhishek Food Products. In 2008, business transaction between that company and the opposite party no. 2 started and it was continuing through several transactions. In course of such continuous usual business transactions the opposite party no. 2 approached the said company through one broker Ramanlal Sirsawa, who has also been made accused in the criminal proceeding, for purchasing 100 metric tons of yellow peas @ Rs.19,500/- per metric ton and the company agreed to sell upon making entire payment. The opposite party no. 2 made default in keeping the promise and the company was compelled to sell out the yellow peas at a lower rate and sustained huge loss. The company served lawyer's letter dated 26.02.2014 on the opposite party and then filed Money Suit No. 119 of 2014 before the learned Judge, 7th Bench, City Civil Court, Calcutta claiming decree for recovery of company's loss of Rs.5,80,635 and interest thereon against the opposite party no. 2. After receiving notice of that suit suppressing all material facts the opposite party no. 2 lodged a complaint against the petitioners and aforesaid broker Ramanlal Sirsawa as three accused persons under Section 156 (3) of the Cr.P.C. which was treated a FIR of the criminal proceeding in question. Filing a copy of the plaint of the Money Suit and certified copy of the FIR of the criminal proceeding with the application under Section 482, Cr.P.C. the petitioners have alleged that the criminal proceeding has been initiated by the opposite party no. 2 as counterblast to the civil suit filed by the company against him. Petitioners have claimed in substance that in the petition of complaint which has been treated as FIR the essential requirements of the offences of criminal conspiracy, criminal breach of trust and cheating are absent stating inter alia, that mere mention of the Sections and the language of those sections is not the be all and end all of the matter and it is required to be brought to the notice of the Court the particulars of the alleged offence committed by each and every accused and the role played by each and every accused in committing the offence.
The averments of the complaint, treated as FIR under Section 156 (3), Cr.P.C. speak in substance that there is no mention of any particular event or transaction or particular date of any incident of any transaction. Inter alia, it has been stated in complaint that there were many business transactions and good relation between complainant and accused persons in respect of business of yellow peas. Complainant/opposite party no. 2 used to issue advance cheques in respect of supply of yellow peas and the accused persons (including the petitioners of this case) used to supply yellow peas to petitioner as per invoice. Said transactions were done on the basis of convincing power and upon good belief and trust for the purpose of business transaction and by inducement of the accused persons. Lastly as per ledger balance in the year ended on 31st March, 2012 it revealed that outstanding dues stands as Rs.3,67,931/- payable by the company of the accused persons viz. R Piyarelall Import and Export Limited (Said company is not accused in the complaint). Said dues reflected and come out from the confirmation of account and ledger book and other relevant documents dated 1st April, 2010 to 31st march, 2011. Said amount carried forward in the ledger book/ledger account in the year ended on 31st March, 2012. Complainant made several requests to the accused persons for supply of yellow peas in respect of the dues of Rs.3,67,931/- for adjustment and the accused persons hatching conspiracy took time giving assurance for compliance of their commitment as soon as possible. Several mobile message correspondence was made in that matter between the complainant and accused persons on 04.02.2014, 27.02.2014, 03.03.2014, 04.03.2014, 03.02.2014 and 28.02.2014. Complainant/opposite party no. 2 also made request in respect of the dues to the accused persons through registered post on 21.12.2012 and 22.05.2013. Subsequently, on negotiation accused persons agreed to refund that amount of Rs.3,67,931/- as early as possible. They took time up to March, 2014. But they did not take any action from which the complainant/opposite party no. 2 presumed that no fruitful result may come from the accused persons. From the attitude of accused persons the complainant found that all accused persons making a conspiracy intentionally did not pay the dues. Therefore, the accused persons committed offence punishable under Sections 420/406/120 B of the Indian Penal Code. Complainant informed the matter at Behala P.S. on 09.04.2014 but police took no action till filing of the complaint under Section 156 (3) of the Cr.P.C. in Court on 29.05.2014.
This application under Section 482, Cr.P.C. has been filed on 14.07.2014. Interim orders for stay of further proceedings of ACGR Case NO. 3737 of 2014 were passed on 21.07.2014, 11.09.2014 (CRAN 3531 of 2014), 20.11.2014 (CRAN 3990 of 2014), 04.02.2015 (CRAN 133 of 2015). Thereafter, petitioners filed CRAN 974 of 2015 for extension of the interim order of stay. Said CRAN 974 of 2015 has been heard with the CRR 2300 of 2014. At the time of hearing it was detected that the opposite party no. 2 filed CRAN 3232 of 2014 for vacating the stay order but said application was not heard and disposed of. As such, said application has also been heard together with CRR 2300 of 2014 and CRAN 974 of 2015.
At the time of hearing learned counsel for the petitioners submitted that admittedly there was prolonged commercial transaction between R. Piyarelall Import and Export Ltd. and the opposite party. As per admission in paragraph 2 of the complaint under challenge there was a good relation between petitioners and opposite party no. 2. There were many business transactions. Therefore, criminal conspiracy of the accused persons and intention of cheating against the opposite party since inception of the transactions cannot be inferred even. He further submitted that excepting some statements using words of penal sections in the complaint under challenge no case of criminal conspiracy or cheating or criminal breach of trust was made out. His further submission is that the opposite party no. 2 did not refer to any single transaction specifically alleging any conspiracy against him or commission of any offence of cheating or criminal breach of trust against him. The opposite party no. 2 alleged debit balance of Rs.3,67,931/- in the name of R. Piyarelall Import and Export Company Limited as per ledger account for the year ended on 31st March, 2012 and on several demands he could not realise that amount. According to the arguments of learned advocate for the petitioner it is not the proper course of opposite party no. 2 to lodge a complaint to set criminal law in motion for realisation of the outstanding dues which has been done by him according to the face value of the allegations made in the complaint. He submitted that such a complaint and the proceeding on the basis of the complaint should be quashed by this High Court by exercising its inherent power under Section 482, Cr.P.C. in order to prevent abuse of process of court. In this connection the learned counsel drew my attention to the averments made in paragraphs 8, 9 and 10 of the petition of complaint. Drawing my attention to the copy of plaint of Money Suit No. 119/2014 filed against the opposite party which has been annexed to the petitioner's application under Section 482, Cr.P.C. he submitted that the complaint under challenge is counterblast of the said Money suit filed by plaintiff R. Piyarelall Import and Export Company Limited relating to exclusively a civil dispute. He further submitted that the complaint was lodged on 29.05.2014 although alleged offence was detected in the ledger balance in the year ended on 31st March, 2012. He submitted that this is a fit case for quashing the criminal proceeding under challenge. In support of his arguments he relied upon the principles discussed by the Hon'ble Supreme Court of India in the cases of -
i). Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 1 Supreme Court Cases (Cri) 524;
ii). Suneet Gupta Vs. Anil Triloknath Sharma And Others with Suneet Gupta Vs. Swami Raote and Another reported in (2008) 11 Suspreme Court Cases 670;
iii). Priyanka Srivastava and Anr. Vs. State of Uttar Pradesh and Others reported in (2015) 6 Supreme Court Cases 287;
iv). Ajay Mitra Vs. State of M.P. and Others reported in (2003) 3 Supreme Court Cases 11; and
v). Uma Sankar Gopalika Vs. State of Bihar and Anothe4r reported in (2005) 10 Supreme Court Cases 336.
Learned counsel for the opposite party no. 2 argued that common facts and circumstances may give rise to a criminal proceeding as well as civil litigation. According to him the ingredients of an offence of cheating are made out in the complaint. He advanced his arguments that High Court will not ordinarily exercise its inherent jurisdiction to quash a criminal proceeding when the investigation is on progress. His further arguments is that even if the allegations disclose a civil dispute the same by itself is no ground to hold that a criminal proceeding is not maintainable. He drew my attention to illustration (f) of Section 415 of the I.P.C. in support of his arguments that in the complaint a case of cheating has been made out in paragraph 10 of the complaint.
He submitted that the High Court being the highest court of a State should refrain from giving prima facie decision in a case where the entire facts are incomplete and hazy any furthermore where evidence has not been collected and produced before the Court. According to him the company R. Piyarelall Import and Export Limited, though not made accused in the complaint may be made accused in charge-sheet. He submitted that delay in lodging complaint dated 29.05.2014 about discovery of dues payable by accused in 2011 has been explained properly in paragraphs 6 and 7 of the complaint. In support of his arguments he relied upon the following decisions of the Hon'ble Supreme Court of India:-
1. Rajesh Bajaj Vs. State of Delhi and Others reported in (1999) 3 Supreme Court Cases 259;
2. Kamaladevi Agarwal Vs. State of W.B. and Others reported in (2002) 1 Supreme Court Cases 555;
3. R. Kalyani Vs. Janak C. Mehta reported in (2009) 1 Supreme Court Cases 516;
4. Arun Bhandari Vs. State of Uttar Pradesh and Others reported in (2013) 2 Supreme Court Cases 801;
5. Vijayander Kumar Vs. State of Rajasthan reported in (2014) 3 Supreme Court Cases 389;
6. Ravindra Kumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited reported in (2009) 11 Supreme Court Cases 529;
7. State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 Supreme Court Cases 691;
8. State of Orissa and Another Vs. Saroj Kumar Sahoo reported in (2015) 13 Supreme Court Cases 540; and
9. State of Karnataka and Another Vs. Pastor P. Raju reported in (2006) 6 Supreme Court Cases 728.
Learned advocate for the state opposite party no. 1 adopted the arguments advanced on behalf of the opposite party no. 2.
I have gone through the materials on record. The principles of law discussed in the decisions cited before me on behalf of both the contesting parties are being followed by this Court according to the facts and circumstances of this case.
At the very outset I like to follow the golden principle that each case should be decided on its own merits. In this case petitioners have challenged a complaint of opposite party no. 2 mentioning the sections of the Indian Penal Code for punishment of the offences of 'Criminal conspiracy' (defined in Section 120 A of the I.P.C.), 'Criminal breach of trust' (defined in Section 405 of the I.P.C.) and 'cheating' (defined in Section 415 of the I.P.C.). Petitioners have also challenged the order dated 29.05.2014 passed by learned Additional Chief Judicial Magistrate forwarding the complaint for treating it as FIR under Section 156 (3) of the Cr.P.C. for investigation by police.
Definition portions of Sections 120 A, 405, 415 are set out hereunder:-
Section 120 A. "Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
Section 405. "Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violence of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
Section 415. "Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'."
The word 'Dishonestly' has been defined in Section 24 of the Indian Penal Code as "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'."
In Section 25 of the Code the word 'Fraudulently' has been defined as "A person is said to do a thing fraudulently if he does that thing with intent to defraud, but not otherwise".
This application under Section 482 of the Code of Criminal Procedure for quashing of a proceeding relates to a complaint of opposite party no. 2 and order of learned Additional Chief Judicial Magistrate, Alipore for investigation by police. Undisputedly, investigation has been taken up but not yet complete. The determining question in this case is whether this Court can at all entertain the application and if so, what is the scope of consideration.
The observation of the Hon'ble Supreme Court in (2005) 13 Supreme Court Cases 540 (Supra) is that the Section (Section 482, Cr.P.C.) envisages three circumstances under which the inherent jurisdiction may be exercised namely, i) to give effect to an order under Cr.P.C., ii) to prevent abuse of process of court, and iii) to otherwise secure the ends of justice. It is also the observation in that judgment that while exercising the powers under the Section, the Court does not function as a Court of appeal or revision and that inherent jurisdiction under the Section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is also the observation in that judgment that "In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the Court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto". Although the facts of the cases discussed in the reported decision and the same of this case are altogether different but the principles discussed in the cited case for dealing with an application under Section 482 of the Cr.P.C. are squarely applicable in this case. In the instant case under consideration it is necessary to consider as to whether the allegations made in the first information report or complaint (treated as FIR under order of learned Magistrate) taking at their face value if accepted in their entirety constitute offences under Section 120 B/406/420 of the Indian Penal Code or not.
According to paragraph 2 of the complaint under challenge the opposite party no. 2 expressed his good business relation with the accused persons and so many business transactions between them. On plain reading of the complaint with its entirety it appears that several times the opposite party mentioned about criminal conspiracy and inducement by the accused persons but not even a single particular event or act or conduct of any of the accused persons has been stated to substantiate any criminal conspiracy or inducement with fraudulent intention at the very inception of one out of many business transactions. Rather, in paragraph- 3 it has been alleged that the complainant/opposite party no. 2 used to issue several advance cheques in respect of supply of yellow peas and after encashment of the same the accused persons used to supply to the complainant as per invoice. It indicates a fair business transaction without any intention to commit breach of trust or fraud for cheating. In the remaining part of the complaint there is no allegation that on any occasion the complainant/opposite party issued any particular cheque on any particular date for supply of yellow peas by accused persons but they did not supply as per invoice of the complainant. According to the paragraph- 4 of the complaint in the ledger balance in the year ended on 31st March, 2012 it revealed that outstanding dues stands as Rs.3,67,931/- in the account of the company R. Piyarelall Import and Export Limited. That is the first cause of action and property involved as per face value of the complaint. Although there is no specific case of any breach of contract yet if for the sake of arguments if such ledger balance be considered as outcome of any breach of contract it cannot be considered as criminal breach of trust or cheating. In this connection I like to note that in paragraph- 6 of the judgment of the Hon'ble Apex Court reported in (2005) 10 SCC 336 (Supra) it has been observed, "It is well-settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception.
If the intention to cheat has developed later on, the same cannot amount to cheating". Such observation also demolishes the case of complainant about the alleged cheating in the matter of his subsequent demand of yellow peas for Rs.3,67,931/- or cash from the accused persons and their making conciliatory statements. Significantly, it may be mentioned that there is no averment in the complaint that accused persons denied expressly to supply yellow peas to complainant against any payment of money by him.
Following the principle discussed in (2004) 1 SCC 691 (Supra) I refrain myself in this judgment to act as a trial Judge and to go beyond face value of the complaint under consideration. From the face value of the complaint it does not appear that there is any allegation of any meeting and express or implied agreement between the accused persons to deceit or defraud the opposite party no. 2. As such, the totality of the averments of complaint does not constitute any offence of criminal conspiracy against the accused persons. Since there is averment in the complaint to the effect that complainant used to issue cheques and after encashment of the same the accused persons used to supply yellow peas as per invoice of the complainant any dishonest or guilty intention of the accused persons is found absent and so they cannot be levelled as liable for committing breach of trust. I like to reiterate that although in the complaint under challenge the complainant repeatedly stated in substance that the accused persons fraudulently and dishonestly by conspiracy induced the complainant for the business transactions but not even a single word or act has been mentioned as stated or done by any accused to induce the complainant/opposite party for entering into even a single transaction out of admitted many business transactions between the parties. In my opinion, for want of fulfilment of the ingredients of Section 415 of the Indian Penal Code in the face value of the complaint under challenge it cannot be said that the averments of the complaint constitute any case of cheating in true sense against any accused. In the judgment reported in (2003) 2 SCC 11 (Supra) referring to a decision of the Apex Court in the case of Hari Prasad Chamaria Vs. Bishun Kumar Surekha and another decision in the case of G.V. Rao Vs. L.H.V. Prasad it has been observed in paragraph 17, "In Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Another it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420, I.P.C. and it may only amount to breach of contract. In G.V. Rao Vs. L.H.V. Prasad it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction "mens rea"
on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered". Although this Court does not consider any matter of trial but the principles relating to an offence of cheating as discussed by the Hon'ble Apex Court are followed herein only on the basis of face value of the complaint under challenge. Said decision in the case of Ajay Mitra Vs. State of M.P. and Others (Supra) fortifies the claim of the petitioners in this case.
In paragraph 16 the judgment of the Hon'ble Supreme Court in the case reported in (2009) 11 Supreme Court Cases 529 (Supra) at page 535 and 536 has been pleased to mention the principles relating to exercise of jurisdiction under Section 482 of the Cr.P.C. to quash complaints and criminal proceedings as "(i) A complaint can be quashed where the allegation made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceeding should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: a) purely a civil wrong; b) purely a criminal offence; or c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract for which civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not". Placing my reliance on the said principles in this case it transpires from the face value of the complaint under challenge that the complaint as a whole does not disclose any criminal offence for investigation by police which has been directed by learned Additional Chief Judicial Magistrate in his order dated 29.05.2014. In the judgment reported in (2009) 11 SCC 529 (Supra) the cases of Uma Shankar Gopalika reported in (2005) 10 SCC 336 (Supra) and Rajesh Bajaj reported in (1999) 3 SCC 259 (Supra) which have been cited before this Court have also been discussed like some other decisions of the Apex Court. Said judgment also protects the case of the petitioners here.
In the instant case the opposite party no. 2 as complainant lodged his complaint before learned Additional Chief Judicial Magistrate, Alipore for treating it as FIR under Section 156 (3) of the Cr.P.C. and accordingly treating it as FIR learned Magistrate forwarded the complaint to police station for registering as FIR and holding investigation. In the order dated 29.05.2014 there is no reflection as to whether learned Magistrate found any prima facie case of cognizable offence for registering the complaint as FIR or not. It seems that mechanically the complaint was sent to O.C., Behala P.S. under Section 156 (3), Cr.P.C. without making any observation about cognizable offence which is prime requirement for recording FIR in a police station. It is the common practice that when a complaint is sent to police station from Court of Magistrate with direction for registering it as FIR then it is blindly registered as FIR in concerned police station without holding any inquiry as to whether any cognizable offence has been alleged in the substance of the complaint. As such, at the time of sending any complaint for registering FIR to police station the Magistrate must be satisfied first that there is allegation of commission of cognizable offence in the complaint for investigation by police. Failing to do so, abuse of process of court comes into play.
The Constitutional Bench of the Supreme Court of India in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others (Supra) made elaborate discussion about FIR and its registration at police station and duty of police officers concerned. Some exceptions have also been discussed in that judgment. In conclusion, the Hon'ble Apex Court has been pleased to give certain observations. In paragraph 120.6 at page 575 the Hon'ble Court held "As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is delay/laches in initiating criminal prosecution, for example, 3 months' delay in reporting the matter without satisfactorily explaining for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry".
In my opinion, in the instant case relating to very old commercial transactions learned Magistrate should be more careful before giving direction for registering the complaint as FIR. In the absence of case of cognizable offence in complaint recording of FIR under interference of Court requires preventive measure against abuse of process of Court exercising inherent power of this Court under Section 482, Cr.P.C. In this connection, I rely upon the observations made by the Hon'ble Supreme Court in the judgments reported in (2008) 11 SCC 670 (Supra) and (2015) 6 SCC 287. In the case of Priyanka Srivastava and Another Vs. State of Uttar Pradesh and another reported in (2015) 6 SCC 287 (Supra) the Hon'ble Supreme Court has been pleased to deal with the provision of Section 156 (3), Cr.P.C. and held that issuing direction stating "as per application" to lodge FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate.
In the instant case following the principles discussed in the judgment of the Hon'ble Apex Court reported in (2014) 3 SCC 389 this Court has tested the face value of the complaint to ascertain whether the allegations in the complaint disclose a criminal offence or not and the view of this Court suggests the answer in the negative according to the totality of the complaint under challenge.
This Court is well-convinced that on same set of facts in appropriate case, proceedings may be initiated under civil law as well as criminal law. It has been also discussed in the foregoing paragraphs of this judgment. The case of the opposite party before me is not improved by the decision of the Hon'ble Apex Court reported in (2013) 2 SCC 801 (Supra) according to the facts and circumstances of this case.
In this judgment I do follow the propositions of law discussed in paragraph- 15 in the judgment of the Hon'ble Supreme Court in the case of R. Kalyani Vs. Janak C. Mehta and Others (Supra). I have already discussed about face value of the complaint in its entirety under challenge which disclosed no cognizable offence. Exercising the inherent power very sparingly I am satisfied to hold in this case that it is a fit case for quashing the criminal proceeding under challenge. The principle discussed in the aforesaid cited decision is followed but according to the facts and circumstances of this case the case of the complainant/opposite party no. 2 cannot be said to have been fortified by that decision. On the same analogy the other two decisions of the Hon'ble Supreme Court reported in (2002) 1 SCC555 (Supra) and (1999) 3 SCC 259 (Supra) cited by learned counsel for the opposite party no. 2 also do not fortify the case of the opposite party no. 2.
Going through the judgment reported in (2006) 6 SCC 728 I do not find any scope of improvement of the case of the opposite party herein.
Considering this case as exceptional in nature in which the complaint under challenge does not disclose commission of cognizable offence for investigation by police the prayer of the petitioners may be allowed. Lastly, I like to observe that mere repeated use of key words such as 'induce', 'fraudulently', 'conspiracy' etc. borrowing from the sections of penal statute in the complaint does not constitute cognizable offence unless the alleged facts constitute any cognizable offence. In this case it transpires that in the complaint under challenge the opposite party no. 2 as complainant repeatedly used the words 'induce', 'conspiracy' etc. but failed to establish prima facie any cognizable offence although it was claimed in the complaint lodged by him in order to impress upon the Court that the complaint may be treated as FIR and order may be passed for investigation in the case levelling Sections 120 B/406/420 of the Indian Penal Code.
In the light of my observations made above I find and hold that the application under Section 482, Cr.P.C. should be allowed and the proceeding of ACGR Case No. 3737/2014 arising out of Behala P.S. Case No. 232 dated 14.06.2014 should be quashed in order to prevent abuse of process of Court.
Under such circumstances the pending applications CRAN 974 of 2015 for extension of interim order and CRAN 3232 of 2014 for vacating interim order need no action and may be disposed of in favour of the petitioners as per order of disposal of CRR 2300/2014.
Accordingly, CRR 2300 of 2013 is allowed on contest and CRAN 974 of 2015 and CRAN 3232 of 2014 are disposed of in favour of petitioner without passing any order relating to interim relief. The proceeding of ACGR Case No. 3737 of 2014 which is pending in the Court of learned Additional Chief Judicial Magistrate, Alipore and arising out of Behala P.S. Case No. 232 dated 14.06.2014 which is under investigation by police officer of Behala P.S. is hereby quashed exercising inherent power of this Court under Section 482 of the Cr.P.C. All the orders passed by learned Additional Chief Judicial Magistrate, Alipore in ACGR Case No. 3737 of 2014 are hereby set aside and let the investigation in Behala P.S. Case No. 232 dated 14.06.2014 be closed forthwith as if there was no investigation at all.
Department is directed to send copies of this judgment to learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas and to officer-in-Charge of Behala Police Station for information and compliance.
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties or their advocates on record promptly observing usual formalities.
(SANKAR ACHARYYA, J.,)