Calcutta High Court (Appellete Side)
The Agarpara Company Limited vs The State Of West Bengal & Ors on 21 February, 2019
Author: Asha Arora
Bench: Asha Arora
1 21.02.2019
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Item No.9 Ct.No.30 dc.
C.R.R. 4111 of 2017 with C.R.A.N. 5466 of 2017 with C.R.A.N. 382 of 2018 The Agarpara Company Limited versus The State of West Bengal & Ors.
Mr. Rajdeep Mazumder,
Mr. Ayan Bhattacharya,
Mr. Anand Keshri,,
Mr. S. N. Pandey,
Mr. Akash Munshi ... For the Petitioner.
Mr. S. G. Mukherjee, Ld. P.P. ... For the State.
Ms. Rituparna De Ghose,
Ms. Rimpa Rajpal ... For the Opposite Party Nos. 2 & 3. Mr. Abhishek Halder, Mr. Jaydeb Ghorai, Mr. Saugata Banerjee ... For the Applicant in CRAN 382 of 2018.
The application being C.R.A.N. 5466 of 2017 under section 5 of the Limitation Act is for condonation of delay of 492 days in filing the revisional application being C.R.R. 4111 of 2017.
Petitioner has assailed the order dated 4/5/2016 passed in GR Case No. 16 of 2011 under sections 420/467/468/471/120B IPC whereby the learned Chief Metropolitan Magistrate, Calcutta accepted the final report submitted by the Investigating Officer and 2 dropped the proceeding. Aggrieved by the aforesaid order, the petitioner/defacto complainant preferred the revisional application on 15/12/2017 along with an application under section 5 of the Limitation Act.
Learned counsel for the petitioner submits that the delay of 492 days in preferring the revisional application has been explained in paragraphs 8 and 9 of the application which read as follows:
"8. The petitioner states that it is pertinent to mention herein that sometimes in the month of October, 2017 when the petitioner were enquiring about the progress of investigation relating to the said Shakespeare Sarani Police Station Case No. 02/2011, dated 02.01.2011, the petitioner herein came to learn about the submission of the Report in Final Form discharging the accused persons. That upon having such knowledge the petitioner had went to the concerned court and upon enquiry came to learn that not only the said Final report was submitted way back in the month of November 2014, but the same was accepted by the Court in the Month of May 2016 and the case was closed as dropped.
9. The petitioner states immediately thereafter the petitioner had gone to the courts and applied for certified copies of the said reports. That on perusing the same the petitioner were surprised to find that even though in the order sheet, the Learned Judge had mentioned about the direction of issuance of 3 notice, but till date no notice was received by the petitioner herein from which the petitioner could have any knowledge regarding the filing of such report by the investigating officer."
Relying upon the case of Bhagwant Singh Versus Commissioner of Police and Another reported in (1985) 2 Supreme Court Cases 537 paragraphs 4 and 5, learned counsel for the petitioner submits that without service of notice upon the defacto complainant and without hearing the defacto complainant the acceptance of final report by the learned Magistrate was not justified. It is contended that the defacto complainant/petitioner herein intended to file a protest petition against the final report but since no notice was served, the petitioner was denied the opportunity of being heard. Learned counsel sought to impress that without the notice having been actually served upon the petitioner, the impugned order speaks of service of notice although there is no service return of notice in the lower court record. In other words, the credibility of the impugned order has been questioned.
Learned counsel appearing for the opposite party nos. 2 to 6 contended that it is clear from the order dated 4.5.2016 that notice was duly served upon the defacto complainant who did not choose to appear despite service so there is no reason to condone the unexplained long delay of 492 days.
4
Learned Public Prosecutor appearing for the opposite party no. 1/State submits that there is no reason to doubt the propriety of the order passed by the learned Magistrate in the regular course of judicial work. It is further submitted that the expert's report received from the Questioned Documents Examination Bureau does not substantiate the case of forgery as made out in the petition of complaint so there was justification for submission of final report.
At this juncture it may be useful to refer to the facts in brief giving rise to the instant applications which are as follows:
The petitioner filed a petition of complaint under Section 156(3) CrPC. in the court of the learned Chief Metropolitan Magistrate, Calcutta alleging commission of offences under sections 420/467/468/471/120B of the Indian Penal Code against the opposite party nos. 2 to 6 herein. On the basis of the aforesaid complaint a criminal proceeding being Shakespeare Sarani P.S. Case No. 2 of 2011 dated 02.01.2011 under sections 420/467/468/471/120B of the Indian Penal Code was initiated. After due investigation a final report was submitted by the Investigating officer on 5/11/2014 intimating closure of investigation and the case was declared as mistake of fact. Pursuant thereto, the learned Magistrate directed issuance of notice upon the defacto complainant by an order dated 5.11.2014. It appears from the order sheet of the lower court record that the said notice was issued on 5 30/5/2015. On the point of service of notice the impugned order dated 4/5/2016 reads as follows:
"04-5-16. None was arrested in this case. Final report submitted and the case declared as M/F. S/R of notice upon the D/Complt.
But none appeared.
Hd. the ld. APP.
Perused the record.
It appears from the record that notice was served upon the D/Complt. The D/Complt. did not turn up. Ld. APP raises no objection to accept the final report. The final report No.-108/14 is thus accepted. The final report as - M/F. The proceeding being G.R. 16/11 is hereby dropped."
It is evident from the order impugned that the learned Magistrate was satisfied regarding service of notice upon the defacto complainant whereafter the final report was accepted. This was on 4/5/2016. So the petitioner's contention that he came to learn about the submission of final report sometime in the month of October, 2017 is not acceptable. It is categorically mentioned in the impugned order that notice was served upon the defacto complainant. There is no reason to doubt the factum of service of notice upon the defacto complainant. It clearly appears from the impugned order that this aspect was looked into by the learned 6 Magistrate. The credibility and sanctity of a judicial order cannot be doubted merely because the service return of the notice is not found in the case record. It appears that the explanation of delay is far from convincing and satisfactory. Sufficient cause could not be shown by the petitioner for the inordinate delay in filing the revisional application. Bhagwant Singh's case (supra) is clearly distinguishable on facts from the case in hand and is not apposite for the purpose of the present case wherein the order impugned clearly reveals that notice was duly served upon the defacto complainant but none appeared despite service.
In the revisional application being CRR 4111 of 2017 the petitioner has contended that the learned Magistrate was not justified in accepting the final report submitted by the Investigating Officer since no notice was served upon the petitioner. The petitioner therefore had no opportunity to file a protest petition against the final report. According to the petitioner, the investigation was perfunctory and biased so it is a fit case for further investigation.
I have perused the case diary. The materials collected during the investigation including the report received from the Questioned Documents Examination Bureau CID, Kolkata, do not substantiate the case of the petitioner as made out in the petition of complaint. The report of the handwriting expert does not support the allegation of forgery. After perusal of the case diary it cannot be said that 7 investigation was lackadaisical or perfunctory. The allegation against the opposite party nos. 2 to 6 is that they entered into criminal conspiracy and transferred an amount of Rs.12,20,000/- from the bank account of the petitioner to the account of the accused company by forging the signature of Rabindra Kumar Walia, one of the directors of the petitioner/complainant company. But the handwriting expert opined that the alleged forged signature in the document is the signature of Rabindra Kumar Walia, the director of the complainant company. The Investigating Officer accordingly closed the case by declaring it as mistake of fact. It is evident that the case of the petitioner/complainant could not be substantiated by the materials collected during investigation.
For the reasons aforestated, the application being C.R.A.N. 5466 of 2017 is dismissed.
The application being C.R.R. 4111 of 2017 is also dismissed. Pursuant to the dismissal of the aforesaid applications, the application being C.R.A.N. 382 of 2018 for dismissal of C.R.R. 4111 of 2017 also stands disposed of.
No order as to cost.
Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.
( ASHA ARORA, J. )