Calcutta High Court (Appellete Side)
Sanjay Choraria vs The State Of West Bengal & Anr on 20 December, 2019
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Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 219 of 2006
Sanjay Choraria
-Versus-
The State of West Bengal & Anr.
Advocate for the Petitioner : Mr. Y. J Dastoor,
Mr. R.K. Khanna,
Mr. Arnab Sengupta.
Advocate for the State : Mr. Arijit Ganguly,
Ms. Debjani Sahu
Judgment on : 2012.2019
Madhumati Mitra, J. :
This is an application under Section 482 of the Code of Criminal Procedure filed by the petitioner praying for quashing of the proceedings in CGR Case No.1519 of 2001 arising out Bhowanipore/DD Police Station Case No.176 dated 05.05.2001under Sections 120B/420/409/467/468 and 471 of the Indian Penal Code pending before the Learned Sub- divisional Judicial Magistrate, Alipore, South 24 Parganas. 2
The facts giving rise to the present Revisional Application are as under:-
The present opposite party no.2 wrote a letter to the Deputy Commission of Police, DD, Lalbazar, Kolkata dated April 23, 2001 which was registered as Bhowanipore/DD Police Station Case No.176 dated 05.05.2001 under Sections 120B/420/409/467/468 and 471 of the Indian Penal Code.
It was alleged in the said FIR that on June 21, 1999, July 24, 1999, February 19, 2000, through one Prosenjit Paul of Paul Finance, the de- facto complainant had invested a sum of Rs.20,000/- + Rs.20,000/- with one M/s Heritage Herbs Ltd. and Rs.12000/-(Rupees Twelve Thousand) with one M/s Harmony Herbs Ltd. respectively for one year. The chief of the said two companies was one Raj Kumar Chamaria and he had assured that the money of the complainant would remain secure and be refunded on maturity with 22% interest per annum which was higher rate of interest compared to bank rate. It was also alleged that the accused in order to create confidence, prepared and used some forged and fabricated documents as regards Reserve Bank of India and Registrar of companies. Subsequently the cheques issued by the accused in respect of the dues of the de-facto complainant were dishonoured. When the de-facto complainant approached the offices of the two companies for refund of his money, he was driven out by said Raj Kumar Chamaria and his office staff. It was the specific allegation in the FIR that earlier the daughter of 3 Raj Kumar Chamaria namely Pallabi and son-in-law had requested the de- facto complainant to reinvest his money. The de-facto complainant was told that the financial affairs of the companies were being looked into by the daughter and son-in-law of Raj Kumar Chamaria. When the daughter and son-in-law had been contacted, they had assured the de-facto complainant that they would refund his money. Later the de-facto complainant was driven out by the director and officers of the company when he went to inquire about his money.
On the basis of the written complaint a specific case was started against the present petitioner and the present petitioner was arrested in connection with that case on November 9, 2001 and taken into custody. Subsequently he was released on bail.
After completion of investigation, charge-sheet was submitted against the present petitioner and Raj Kumar Chamaria for commission of the alleged offences punishable under Sections 120B/420/409/467/468 and 471 of the Indian Penal Code. The Learned Magistrate took cognizance of the alleged offences against the petitioner and co-accused.
During the course of hearing the Learned Counsel appearing for the petitioner has submitted before the court that the present petitioner was in no way connected with the affairs of the company. He has vigorously submitted that the petitioner is the son-in-law of the Managing Director of the companies i.e. Raj Kumar Chamaria. He has forcefully contended that 4 the companies were not made accused and as such the proceedings cannot be allowed to be continued against the present petitioner. It is his specific contention that the present petitioner was not at all involved in the affairs of the companies relating to investment of money with the companies as it appeared from the FIR lodged by the de-facto complainant. According to his contention the allegation against the present petitioner was that he only requested the de-facto complainant to reinvest the amount with the company and this does not mean that from the very inception the present petitioner was involved in the alleged crime. Learned Counsel has further submitted that the ingredients of the offence of cheating as defined in Section 405 of the Indian Penal Code are not present in the written complaint so far as present petitioner is concerned. Learned Counsel has also laid emphasis on the point that at the time of commission of alleged offences, the present petitioner was neither a director nor an officer of the companies namely M/s Heritage Herbs Ltd. and M/s Harmony Herbs Ltd and he was no way connected with the day to day affairs of the companies.
In support of his contention, Learned Counsel for the petitioner has placed reliance on several decisions and contended that to prosecute a person for commission of an offence of cheating, the prosecution has to show that at the time of making promise he had fraudulent or dishonest intention to induce the person so desired to do something which he would not otherwise do. He has further argued that such culpable intention must be present from the very beginning of the agreement. According to 5 his contention mere failure to keep the promise to return the money does not come within the ambit of cheating. He has further contended that in the present case the petitioner was not in the picture when the alleged agreement of investment had been made.
He has also contended that in the instant case charge-sheet was submitted against the accused person/petitioner for commission of the alleged offences punishable under the provisions of Indian Penal Code without making the companies as accused. There is no specific provision in the Indian Penal Code for attaching vicarious liability on the Managing Director or the Directors of the companies. The petitioner being the son- in-law of the managing Director of the Companies cannot be prosecuted for the alleged offences committed by the companies.
In support of his contention the Learned counsel for the petitioner has placed his reliance on the following decisions:
i. Aneeta Hada Vs. Godfather Travels & Tours Private Ltd.
reported in (2012) 5 SCC 661.
ii. Maksud Saiyed Vs. State of Gujarat & Ors. reported in (2008) 5 SCC 668.
iii. S.k. Alagh Vs. state of Uttar Pradesh & Ors. reported in (2008) 5 SCC 662 iv. V.P. Shrivastava Vs. Indian Explosives Ltd. & Ors.
reported in (2010) 10 SCC 361 6 In refutation of the submission advanced by the Learned Advocate for the petitioners, Learned Counsel for the State has submitted that there are more than sufficient incriminating materials in the case diary to connect the petitioner to the alleged crime. Learned Counsel for the State of West Bengal has invited the attention of the Court to the relevant portions of the case diary and submitted that the materials collected by the investigating officer during investigation clearly indicate the involvement of the present accused in the commission of alleged crime.
I have carefully perused the FIR, materials placed on record and the certified copy of the case diary. I have gone through the decisions cited by the Learned Counsel for the petitioner. I have considered the submissions and rival submissions advanced by the Learned Counsel appearing for the parties.
On 05.05.2001 one Goutam Chakraborty wrote a letter addressed to the deputy Commission of Police, Detective Department, Lalbazar, Calcutta alleging that on 21.06.1999 and 24.07.1999 he had deposited Rs.20,000/-(Rupees Twenty Thousand) and Rs.20,000/-(Rupees Twenty Thousand) with Heritage Herbs Ltd. through one Prosenjit Paul of Paul Finance, for one year. On 19.02.2000 the de-facto complainant also deposited Rs. 12,000/- (Rupees Twelve Thousand) with Harmony Herbs Ltd. It was specifically alleged in the said complaint that Mr. Raj Kumar Chamaria was the owner of both the companies. It was also alleged in the said complaint that when the complainant had met Raj Kumar Chamaria 7 at his office, the complainant was assured that he would be paid 22% interest and the deposited amount would remain secure. It was the specific allegation of the complainant that he had been induced to deposit money with both the companies. He was shown various documents of Reserve Bank of India and Registrar of Companies. He was also told that the companies followed the guidelines of RBI and Registrar of Companies. Complainant was given assurance that his deposits would be protected and that he would get back the deposited amount with interest in due course. After one year the complainant deposited the cheques issued by the companies, but all the cheques were dishonoured. Thereafter the complainant on query came to know that all the papers/documents relating to RBI registration etc. Which had been shown to him were forged. Thereafter he had visited the office of the companies with the hope of getting the money back, but was threatened by Raj Kumar Chamaria and his men and staff. They drove him out from the office. In his complaint the complainant further alleged that previously had deposited Rs.20,000/- (Rupees Twenty Thousand) to the said companies and after one year he had got the deposited amount back along with interest. Thereafter Raj Kumar Chamaria, his daughter and son-in-law Sanjay Chamaria insisted on him to re-invest the said amount again in their companies. Being induced by them, the complainant on 21.06.1999 and 19.02.2000 deposited Rs.20,000/-, Rs. 20,000/- and Rs.12,000/-. Complainant had visited the office of the said Raj Kumar Chamaria for refund of the amount invested by him. He was assured by the daughter and son-in-law of Raj Kumar Chamaria, but he did not get back the 8 amount deposited by him. Ultimately he was driven out from the office of the companies. Thereafter, he found that the office of the companies was closed under lock and key and the accused had fled away.
On the basis of that written complaint, Bhowanipure/DD Police Station case NO.176 dated 05.05.2001 was started against the present petitioner and Raj Kumar Chamaria for commission of alleged offences punishable under Sections 120B/420/409/467/468/471 of the Indian Penal Code.
Investigation ended in the submission of charge-sheet against the accused for commission of alleged offences.
At the time of hearing, the certified copy of the case diary has been produced by the Learned Advocate for the State.
In the First Information Report there were specific allegations against the petitioner. It was alleged that the complainant was induced to invest Rs.52,000/- in total in the companies of Raj Kumar Chamaria on the false assurance given by the accused/petitioner and his wife. The substance of the written complaint prima facie disclose the commission of alleged offences and the petitioner fraudulently or dishonestly induced the de-facto complainant to invest the amount.
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The materials collected during investigation show that the present petitioner and others were dishonestly involved to induce public to invest money in the said two companies viz M/s Heritage Herbs Ltd. & M/s Harmony Herbs Ltd. with false assurance that their deposited amount would remain safe and secure and the same would be refunded on maturity with high rate of interest. Investigation also reveals that the petitioner and other accused were running the companies and the companies were not authorized to carry on non-Banking Financial Company business as per the report of Reserve Bank of India. SEBI, in course of investigation, informed the investigating officer that the companies were not registered with them and they were not acting as per SEBI guidelines under SEBIICIS Regulation, 1999. During investigation statements of different investors were recorded under Section 161 of the Code of Criminal Procedure. From the said statements it appears that they did not get back their deposited amounts and the cheques which had been given to them by the accused were dishonoured when presented for encashment.
The materials collected during investigation prima facie indicate the involvement of the accused in the commission of the alleged crime.
The decisions as cited by the Learned Counsel for the petitioner have no bearing with the facts and circumstances of the present case. 10
In my opinion it is not a fit case to exercise discretion under Section 482 of the Code of Criminal Procedure. I do not find any cogent ground to quash the criminal proceedings pending against the petitioner.
Accordingly, the application under Section 482 of the Code of Criminal Procedure stands dismissed.
Before parting with the case, I would like to clarify that the observations made in this judgment should not be taken as an expression of any opinion regarding the merit of the criminal proceedings pending before the Learned Magistrate.
Certified copy of the case diary be handed over to the Learned Advocate for the State immediately.
Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Madhumati Mitra, J.)