Calcutta High Court
Tapan Kumar Ghosh And Ors. vs State Of W.B. And Anr. on 12 May, 2006
Equivalent citations: (2006)3CALLT181(HC), 2006(3)CHN784
JUDGMENT P.N. Sinha, J.
1. The petitioners have not knocked the door of this Court under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) praying for quashing of criminal proceeding being G.R. Case No. 1275 of 1994 arising out of Jalpaiguri Kotwali P.S Case No. 370 dated 11.10.94 under Section 420 of the Indian Penal Code (in short IPC) now pending in the Court of the learned Sub-Divisional Judicial Magistrate (in short SDJM) - now redesignated as ACJM and also the chargesheet filed in the said G.R. Case in CRR No. 1142 of 1996 and also for quashing of complaint case being C.R. No. 317 of 1994 now pending before the learned Judicial Magistrate, 1st Court, Jalpaiguri under Sections 138 and 141 of the Negotiable Instruments Act (hereinafter referred to as NI Act) through revisional application being CRR No. 2753/96. As both the criminal proceedings arose out of same facts and parties are same as well as points of law involved are same in these two revisional applications, I intend to dispose of both the criminal revisional applications by this common judgment and order.
2. Before entering into the merit of the case and rival contention of the parties, it would be fruitful to reproduce the facts of the case and I intend to mention first the facts concerning CRR No. 2753 of 1996.
3. O.P. No. 2 Amal Kumar Das as complainant instituted complaint case C. R. No. 317 of 1994 against the present petitioners as accused persons under Sections 138 and 141 of the NI Act before the Court of the learned Chief Judicial Magistrate, Jalpaiguri. It was alleged in the complaint that the complainant is a reputed Government contractor and he is carrying on his contract business under different Government departments. The accused No. 1 namely, M/s. Debendra Bejoy Ghosh and Ors. is a partnership firm and accused Nos. 2, 3 and 4 (present petitioners) are the constituent partners of accused No. 1 firm. The accused No. 1 firm also carries on different works as contractor and they were allotted the jobs of Jalpaiguri Irrigation Division, Coochbehar Irrigation Division, Teesta Barrage Project since 1984 and for the purpose of convenience of their business the accused Nos. 2 to 4 established a branch office of accused No. 1 firm at Jalpaiguri town.
4. In the month of May, 1991, the accused Nos. 2 to 4 came to the house of complainant and disclosed to the complainant that they had been facing financial hardship and due to lack of hard cash they would not be able to carry out the works allotted to them from different Government departments and they demanded help of money as loan to the tune of Rs. 5,50,000/-. The complainant was hesitating, to pay such big amount as loan but the accused petitioners promised that an additional amount of Rs. 2.5 lakhs would be paid along with the original amount within March, 1993. Accordingly, the O.P. No. 2 advanced a loan of Rs. 5.57 lakhs to the petitioner by instalments till August, 1991. The petitioners thereafter failed to make payment of the said amount to the O.P. No. 2 within stipulated time and on repeated reminders given by O.P. No. 2, the accused petitioners assured that they would make payment of the amount within May, 1994.
5. In the first week of June, 1994, the accused persons came to Jalpaiguri and the complainant contacted with them at Oodlabari and demanded payment of the amount borrowed by the accused petitioners and the accused petitioners agreed to pay principal amount and refused to pay additional amount of Rs. 2,50,000/-. It resulted into dispute between the parties but, at the intervention of common friends the dispute was settled and according to the settlement the accused Nos. 2 to 4 made payment of a sum of Rs. 6,40,000/- by an account payee cheque vide cheque No. 439460 dated 9.6.94 drawn on the Allahabad Bank, Jalpaiguri.
6. The O.P. No. 2 complainant after receiving the said cheque deposited the said cheques with his banker namely, the Indian Bank, Jalpaiguri for collection of the said amount but, the cheque was bounced for want of sufficient fund and the cheque was returned to complainant with banker's endorsement 'insufficient fund'. Immediately thereafter, the complainant made contact with the accused petitioners over telephone but the accused petitioner paid no heed and took no steps for payment of the amount. The complainant thereafter on 11.7.94 issued demand notice to the accused persons through their learned Advocate and the said notice was duly delivered upon the accused petitioners by registered post with acknowledgement and the accused persons received the demand notice on 14.7.94. In spite of receiving the demand notice the accused persons failed and neglected to make payment of the amount of the dishonoured cheque. Accordingly, the accused persons committed offence under Sections 138 and 141 of the Act as was alleged in the complaint petition. In the petition of complaint the complainant also disclosed that the accused persons have committed offence under Section 420 of the IPC and he will file a separate complaint for the said offence.
7. The complainant lodged the complaint case being C.R. No. 317/94 on 16.8.94 in the Court of learned CJM. Jalpaiguri, who after taking cognizance, transferred the complaint to the Court of learned Judicial Magistrate, 1st Court, Jalpaiguri, The learned Judicial Magistrate thereafter perusing the complaint and examining the complainant under Section 200 of the Code came to the decision that prima facie offence under Sections 138 and 141 of the NI Act has been made out against the accused petitioners and accordingly on same day issued process. The accused petitioners thereafter moved this Court in CRR No. 2753 of 96 praying for quashing the said complaint case and for setting aside all the orders passed therein by the learned Magistrates.
8. After lodging the complaint case being C.R. No. 317 of 94, the O.P. No. 2 filed a complaint in the Court of learned CJM on 10.10.94 praying for direction upon O.C., Kotwali P.S, for investigation under Section 156(3) of the Code against the same accused petitioners for alleged offence under Section 403/406/420/120B of the IPC making the same allegations concerning the same amount of money advanced by him to the accused petitioners and containing the same fact of issue of cheque by the accused petitioners which was dishonoured. The main allegation of the de facto complainant was that the accused petitioners had the intention to cheat him right from the beginning and thereby cheated him in respect of sum of Rs. 5,57,000/-. The learned CJM forwarded the said complaint to Inspector-in-Charge, Kotwali P.S. for investigation under Section 156(3) of the Code and on the basis of such complaint/FIR the Jalpaiguri Kotwali P.S. Case No. 370/94 dated 11.10.94 under Section 420 of the IPC was started against the accused petitioners. After completing investigation the Kotwali P.S. submitted chargesheet No. 222/95 dated 10.12.95 under Section 420 of IPC against the accused petitioners. The accused petitioners obtained anticipatory bail from this Court and warrant issued against them were recalled. The accused petitioners thereafter by filing the revisional application being CRR No. 1142/96 has prayed for quashing the proceeding of G.R. Case No. 1275 of 94 as well as the chargesheet.
9. Mr. Joymalaya Bagchi, the learned Advocate appearing for the accused petitioners in both the revisional applications submitted that the complaint case being C.R. No. 317/94 was started on 16.3.94, and two months thereafter, the same complainant concerning same materials lodged the complaint before the learned CJM on 10.10.94 praying for investigation under Section 156(3) of the Code and the learned Magistrate forwarded it to Kotwali P.S. over which Kotwali P. S. Case No. 370/94 dated 11.10.94 was started. The factual matrix of both the cases are same and main issue involved is dishonour of the cheque bearing No. 439460 issued by the accused petitioners in favour of the de facto complainant. It is purely a case under Section 138 of the NI Act. There was no firm under the name and style of M/s. Debendra Bejoy Ghosh and Ors. and the cheque was issued on personal account and not for the alleged firm. Therefore, there was no element of Section 141 of the NI Act at all, and Section 141 of the NI Act has no manner of application in the present case.
10. Mr. Bagchi submitted that in the petition of complaint which was filed on 16.8.94, the O.P. No. 2 disclosed his intention that prima facie elements of Section 420 of IPC was also there but, it is not dear as to why in the petition of complaint he did not include offence under Section 420 of IPC. It is well-known that when the main matter is concerning dishonour of a cheque, elements of Section 420 of IPC does not lie. Filing of the second complaint by the de facto complainant under Section 420 of IPC against the accused persons for same facts, same allegations and concerning same dishonoured cheque amounts to abuse of process of law and discloses malice of the de facto complainant. Filing of the second complaint under Section 420 of IPC over same set of facts for which earlier one complaint case was lodged, is absolutely bad in law. In support of his contention in this connection Mr. Bagchi referred to the decision of Gautam Banerjee v. State of West Bengal reported in 2005(2) CHN 318, G. Sagar Suri and Anr. v. State of U.P. and Ors. reported in 2000 C Cr. LR(SC) 136 : JT 2000(1) SC 360 and Murari Mohan Kejriwal and Ors. v. State of West Bengal reported in 2000(2) CHN 863.
11. Mr. Bagchi further submitted that there was no element of initial deception. If the second complaint is construed as a whole without adding anything to it or subtracting anything from it no materials of cheating has* been disclosed in the FIR and no elements of initial deception has been disclosed in the FIR. When the complainant already lodged a complaint case under Section 138/141 of the NI Act for the same dishonoured cheque, continuation of the second criminal proceeding under Section 420 of IPC on the basis of FIR lodged by the same complainant is an abuse of process of law and the second criminal proceeding in which chargesheet has been submitted should be quashed.
12. Mr. Bagchi also submitted that the alleged cheque was not issued in the name of the firm or from the joint account of the petitioners of the firm and being so there is no element of Section 141 of the NI Act, Mr. Bagchi further submitted that joint account of two partners cannot be regarded as account of the alleged firm. The personal joint account of partners cannot be treated or equated as account of the firm. There was no vicarious liability of petitioners as account was not of firm. Finally, he submitted that all the points may be kept open to be decided in the Trial Court as to whether there is any element of Section 141 of the NI Act against the alleged firm. He further submitted that Debendra Bejoy Ghosh has expired in the meantime and the criminal proceeding cannot continue against him. Mr. Bagchi submitted that main grievance of the accused petitioners is against the second complaint or FIR concerning which chargesheet has been submitted in G.R. Case No. 1275 of 1994 and it should be quashed.
13. Mr. Biplab Mitra, the learned Senior Advocate for O.P. No. 2 complainant submitted that the cheque issued by the petitioners was dishonoured by the bank with the remark 'insufficient fund'. After receiving the banks endorsement regarding dishonour of the cheque, the complainant issued demand notice upon the accused persons and they received the notice. In spite of receipt of notice the accused petitioners did not make payment of the amount of the dishonoured cheque. Naturally, all elements of Section 138 of the NI Act were attracted. Whether elements of Section 141 of the NI Act would be attracted or not and, whether there was no existence of the firm as alleged or, whether the cheque was issued from account of the firm, or, whether from personal account of partners are matter of fact to be considered in the trial on the basis of evidence. The learned Magistrate after going through the contents of the complaint and the statement of the complainant recorded under Section 200 of the Code rightly issued process. There is no ground for quashing the said criminal case. Mr. Mitra submitted that the question concerning elements of Section 141 of the NI Act may be kept open to be decided by the learned Trial Court on the basis of evidence. But at this stage, there is no ground at all to quash the proceeding or to recall the process under Section 141 of the NT Act.
14. Mr. Mitra submitted further that when a cheque is dishonoured the person who issued the cheque is liable, The accused persons in their defence can rebut the presumption by leading such evidence that would be available to them. Mr. Mitra also referred to Section 26 of the General Clauses Act and submitted that what would be the effect when there is controversy relating to application of special statute and special law in comparison to general law. He submits that in such a situation the special statute i.e., in the present case the NI Act would prevail. In support of his contention Mr. Mitra cited the decisions in Soumyendra Krishna Deb Biswas v. State reported in 1992 C Cr. LR (Cal) 148 and Nagpur Steel & Alloys Pvt. Ltd. v. P. Radhakrishna @ Rajan reported in 1997 SCC(Cri) 1073. In Soumyendra Krishna Deb Biswas v. State (supra) it was held by a Division Bench of this Court that, Section 26 of the General Clauses Act relates to offences punishable under two or more enactments. This section provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to prosecuted or punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. In Nagpur Steel & Alloys Put. Ltd. v. P. Radhakrishna @ Rajan (supra) it was held by the Supreme Court that merely because the alleged offence under Section 420 of the IPC was committed during the course of a commercial transaction the High Court was not justified in quashing the complaint. It was further observed by the Supreme Court that, whether or not the allegations in the complaint were true is to be decided on the basis of evidence led at the trial.
15. Mr. Mitra further submitted that in the police case started on the basis of FIR being G.R. Case No. 1275/94 arising out of Kotwali P. S. Case No. 370/94 chargesheet has akeady been submitted under Section 420 of the IPC. The decisions in G. Sagar Suri v. State of U.P.(supra), Murari Mohan Kejriwal and Ors. v. State of West Bengal (supra) are not properly applicable in this case. In all the aforesaid cases the police case was pending during investigation after lodging of FIR though admittedly the complainant filed complaint case earlier. In the present matter also the complaint case being case No. C. R. 317 of 1994 was filed earlier and thereafter the FIR was lodged. But the police case is not pending for investigation and investigation is already over as chargesheet has been submitted. Submission of chargesheet indicates that during investigation the police found prima facie case and at this stage the said chargesheet cannot be quashed. For the ends of justice both the complaint case and the police case may be tried in same Court as in both the cases same cheque which was dishonoured was involved.
16. Mr. R.K. Ghosal, the learned Advocate appearing for the State submitted that he has nothing to say so far as it relates to the complaint case being case No. C.R. 317 of 1994. But the police case being G.R. Case No. 1275/94 arising out of Jalpaiguri Kotwali P. S. Case No. 370/94 has ended in submission of. chargesheet under Section 420 of IPC against the petitioners. The submission of chargesheet clearly indicates that on the basis of evidence collected during the course of investigation prima facie elements of offence under Section 420 of IPC were established against the accused petitioners. Therefore, at this stage there is no ground for quashing the criminal proceeding being G.R. Case No. 1275 of 94. Mr. Ghoshal submitted that as the facts of both the cases are almost identical in nature concerning dishonour of cheque issued by the accused petitioners in favour of the de facto complainant, both the complaint case and G. R. case may be tried in same Court and this Court can direct transfer of both the cases in same Court. There is no merit in the revisional application and accordingly it should be dismissed.
17. I have given due considerations on the submissions made by the learned Advocates for the parties and carefully perused the revisional applications, the materials-on-record and the papers and documents annexed with the revisional applications. The facts that emerges from the contents of both the revisional applications reveal the admitted position that, the O.P. No. 2 complainant is a reputed Government contractor and the accused No. 1 as arrayed in the petition of complaint is a firm within the meaning of Section 142 of the NI Act. It was disclosed in the complaint that accused Nos. 2, 3 and 4 are the constituent partnes of accused No. 1 firm. It was disclosed in the complaint case and FIR of the police case that accused No. 1 firm is also a licensed Government contractor and was carrying on different jobs within Jalpaiguri and Coochbehar concerning Jalpaiguri Irrigation Division, Coochbehar Irrigation Division, Teesta Barrage Project etc. since 1984.
18. In the month of May, 1991 the present petitioners i.e. accused persons 2 to 4 approached the complainant for advancing loan as they were facing financial hardship and the complainant advanced in all Rs. 5,57,000/- on different dates in the year 1991. It has been alleged in FIR as well as in complaint that the accused persons assured to repay the said amount of Rs. 5,57,000/- along with additional amount of Rs. 2,50,000/-. Thereafter the allegation of the complainant was that the accused persons made default in making payment and in October, 1993 he even rushed to Calcutta to meet the accused persons and demanded payment of Rs. 8,07,000/-. The accused persons assured him to make payment within May, 1994 but did not fulfil their commitment. Thereafter, in the first week of June, 1994 the accused persons came to Jalpaiguri in connection with their contract work and the complainant approached them to make payment and accused Nos. 2 to 4 made a payment of Rs. 6,40,000/- to complainant by issuing one account payee cheque bearing No. 439460 dated 9.6.94 drawn on Allahabad Bank, Jalpaiguri.
19. There is no dispute that the complainant deposited the said cheque with his banker namely, the Indian Bank, Jalpaiguri for encashment of the cheque but, the said cheque was bounced with banker's note or endorsement 'insufficient fund'. The complainant issued demand notice through his Advocate in view of provisions of Section 138(b) of the NI Act on 11.7.94 and the accused persons received the notice on 14.7.94. In spite of receipt of notice, the accused persons did not make payment of the amount of the dishonoured cheque. Thereafter, the complainant lodged the complaint under Section 138 against the accused persons 2 to 4 and under Section 141 against the accused No. 1 firm and the learned Magistrate after taking cognizance issued process which resulted into initiation of complaint case No. C.R. 317/94.
20. In the petition of complaint the complainant disclosed that the accused persons had the intention to cheat him right from beginning and he would lodge a separate proceeding against accused persons under Section 420 of IPC. Thereafter, he lodged another complaint in the Court of the learned CJM at Jalpaiguri which was forwarded to the Kotwali P.S. for investigation under Section 156(3) of the Code and on the basis of it Kotwali P.S. Case No. 370 of 1994 under Section 420 of IPC was started against the present petitioners and in the Court of the learned Magistrate the FIR was registered as G.R. Case No. 1275/94. It is admitted that, the police after completing investigation submitted chargesheet against the accused petitioners under Section 420 of IPC.
21. It is settled that dishonour of the cheque itself does not make out any penal provision. Penal provision under Section 138 of the NI Act would arise only when- after issue of demand notice by the complainant or holder of the cheque for payment of the amount of dishonored cheque, the accused or the drawer of the cheque in spite of receiving the demand notice fails to make payment within the time of 15 days. It is also well-settled that where company is involved all the partners of a company are not responsible for the alleged offence under Sections 138 and 141 of the NI Act. Only the persons or the officers of the company who were in charge of the company and responsible to the firm can be fastened with criminal liability. It is also well-settled now that when a company which committed the offence under Section 138 or 141 of the NI Act eludes from being prosecuted thereof, on account of complaint against it, the Directors of that company can be prosecuted for that offence. In Anil Hada v. Indian Acrylic Ltd. reported in 2000 Cr. LJ 373, the Supreme Court observed that, "The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence."
22. In the said decision the Supreme Court also observed that, "Three categories of persons can be discerned from the said provision who are brought within the purview of the penal liability through the legal fiction envisaged in the section. They are: (1) The company which committed the offence, (2) Everyone who was in charge of and was responsible for the business of the company, (3) Any other person who is a Director or a Manager or a Secretary or officer of the company, with whose connivance or due to whose neglect the company has committed the offence." The proposition of law thus makes it clear that where company alleged to have been committed offence, everyone who was in charge of and was responsible for the business of the company and any other person who is a Director or a Manager or a Secretary or officer of the company with whose connivance or due to whose neglect the company has committed offence can be prosecuted in a proceeding under Sections 138 and 141 of the NI Act.
23. Mr. Bagchi submitted before us that the cheque was not issued in the name of the firm and there was no existence of the firm under the name and style M/s. Debendra Bejoy Ghosh and Ors., a proprietorship firm. I am of opinion that, whether there was existence of the firm or not and, whether the cheque in question which was dishonoured was issued in the name of the said firm or from personal account of anyone or any two of the partners of the said firm can be decided on the basis of evidence in the trial before the learned Magistrate and these are pure questions of fact mixed with law which cannot be decided without consideration of evidence. Accordingly, at this stage this Court finds no ground at all to quash the complaint case being case No. C. R. 317/94 against the alleged firm and its partners which is now pending in the Court of the learned Judicial Magistrate, 1st Court, Jalpaiguri. I make it clear that I keep open all these points and the learned Magistrate shall decide the said points as indicated above on the basis of oral and documentary evidence that would be adduced by both the parties in the trial before the learned Magistrate and thereafter on consideration of the evidence and materials-on-record, the learned Magistrate would decide whether there is any element of Section 141 of the NI Act in the complaint case.
24. There is no doubt that prima facie elements of Section 138 is there against the present accused petitioners and there is no ground at all to quash the complaint case against the present petitioners. Of course, it has been submitted that the accused No. 3 who is petitioner No. 3 in revisional applications namely, Debendra Bejoy Ghosh has expired. K relevant documents are produced before the learned Magistrate concerning death of Debendra Bejoy Ghosh, the learned Magistrate would act accordingly in accordance with law and if the said accused had expired, case against him is liable to abate.
25. I am unable to accept the contention of Mr. Bagchi that, as there was running transaction between the parties no elements of offence of cheating or any other offence is attracted. In this connection, the decisions cited by Mr. Mitra in Nagpur Steel and Alloys Pvt. Ltd. (supra) is pertinent where the Supreme Court has observed that merely because the alleged offence under Section 420 of the IPC was committed during the course was not justified in quashing the complaint. It was further observed by the Supreme Court that, whether or not the allegations in the complaint were true is to be decided on the basis of evidence led at the trial. The question before this Court at this stage is whether the decision cited by Mr. Mitra referred to above is properly applicable considering the facts and circumstances of the present case. In Nagpur Steel and Alloys Put. Ltd. (supra) there was no point for consideration before the Supreme Court as to whether when a person lodges two complaints over same set of facts relating to dishonour of a cheque whether appropriate case would be under Section 138 of the NI Act or a case under Section 420 of IPC. Therefore, in the facts and circumstances of the present case the decision in Nagpur Steel and Alloys Pvt. Ltd. (supra) is distinguishable.
26. After going through the facts and circumstances as disclosed in FIR of G.R. Case No. 1275/94 and complaint case being C.R. No. 317/94, I am of opinion that, in the present case the decision of G. Sagar Suri v. State of U.P. (supra) and Gautam Banerjee v. State of West Bengal (supra) are properly applicable. In G. Sagar Suri v. State of U.P. (supra) the complainant earlier lodged a complaint under Section 138 of the NI Act when the cheques issued by the accused persons and presented by the complainant for encashment were dishonoured. Thereafter, the complainant again lodged FIR No. 517/97 and it resulted into submission of chargesheet. G. Sagar Suri, one of the accused persons preferred application for quashing before the High Court under Section 482 of the Code in respect of the police case in which chargesheet was submitted and the High Court of Uttar Pradesh rejected such prayer. Thereafter, G. Sagar Suri as appellant moved the Supreme Court and the Hon'ble Supreme Court observed that during investigation the investigating agency did not look into the complaint filed earlier under Section 138 of the NI Act. It was argued before the Supreme Court on behalf of the respondent complainant that Court of Magistrate has power to discharge the accused and, therefore, jurisdiction under Section 482 of the Code cannot be exercised. The Supreme Court rejected the said contention by referring several other decisions as mentioned in the judgment. Finally, the Supreme Court observed that, in the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of Criminal Court for allegedly having committed offences under Sections 406/420 of the IPC by the appellants is certainly an abuse of process of law. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the NI Act. None of the respondents has been able to explain as to why offences under Sections 406/420 of the IPC were 4 not added in the complaint filed under Section 138 of the NI Act and why resort was had to filing of a separate First Information Report. The Supreme Court also observed that when a criminal complaint under Section 138 of the NI Act is already pending against the appellants and other accused they would suffer the consequences, if offences under Section 138 of the NI Act is proved against them. In any case, there is no occasion for the complainant to prosecute the appellants under Sections 406/420 of the IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed.
27. This Court in Gautam Banerjee v. State of West Bengal (supra) observed that, already a case under Section 138 of the NI Act was pending against the petitioner. If the de facto complainant can establish his complaint case for the alleged offence under Section 138 of the NI Act the accused petitioner will suffer consequences, if offence under Section 138 of the NI Act is proved against him. This Court in Gautam Banerjee v. State of West Bengal (supra) quashed the second complaint being FIR filed by same complaint against same accused for the dishonour of same cheque.
28. It is not clear to this Court when the O.P. No. 2 complainant lodged the complaint under Section 138 of the NI Act why he did not mention or insert Section 420 of IPC in the complaint. He only disclosed in the complaint petition that he will subsequently file another complaint under Section 420 of IPC and this shows his motive to create more pressure on the accused petitioners and to put them under harassment. If the facts of the case are considered properly, it would become clear that, there was no inducement or fraudulent or dishonest intention on the part of the accused persons right from the beginning of the transaction. That being the position filing of the second complaint i.e. FIR against the same set of accused persons for dishonour of the same cheque amounts to abuse of the process of law and the criminal proceeding arose out of the police case is liable to be quashed against the petitioners. Starting of the second complaint i.e. FIR giving rise to Jalpaiguri Kotwali P.S. Case No. 370/94 dated 11.10.94 under Section 420 of IPC is bad in law.
29. Section 482 of the Code empowers High Court to prevent abuse of the process of Court and to secure ends of justice. Continuation of the proceeding of G. R. Case No. 1275/94 arising out of Jalpaiguri Kotwali P.S. Case No. 370/94(11.10.94) under Section 420 of IPC is clearly an abuse of process of law and taking of cognizance by the learned Magistrate was also bad in law and the said criminal proceeding against the accused petitioners for the alleged offence under Section 420 of IPC is liable to be quashed.
30. In the revisional application the accused petitioners also raised a point relating to pendency of the criminal case since 16.8.94 and made a ground for quashing relying on the decision of the Supreme Court in 'Common Cause Case.' I am not at all convinced with the submission of the petitioners for quashing of the criminal case for delay relying on the principle of law laid down by the Supreme Court in "Common Cause Case". The decision of the Supreme Court in 'Common Cause Case' (I) [as modified in Common Case(II): ] and Raj Deo Sharma (I) and (II) are not good laws in view of the decision of the Constitution Bench of seven Judges of the Supreme Court in P. Ramchandra Rao v. State of Karnataka reported in 2002 C Cr. LR (SC) 497 and State of Rajasthan v. Ikbal Hussen reported in 2004 (4) All India Criminal Law Reporter 664. In P. Ramchandra Rao v. State of Karnataka (supra) the Supreme Court held that, the dictum in Abdul Rehman Antulay v. R.S. Nayak reported in 1992 SCC(Cri) 93, is correct and still holds the field. It was observed by the Supreme Court that it is neither advisable nor feasible not judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. In the present matter, the delay if any, for the pendency of the criminal proceeding was for the conduct of the accused persons as the accused persons immediately after issue of process against them in the complaint case and submission of chargesheet in the police case moved this Court in the aforesaid two revisional applications and obtained order of stay of further proceedings. Therefore, delay, if any, was for the fault and action of the accused persons and accused petitioners cannot take benefit of it,
31. In view of the discussion made above, the complaint case being Case No. C.R. 317/ 94 now pending in the Court of the learned Judicial Magistrate, 1st Court , Jalpaiguri shall continue and the learned Magistrate is directed to dispose of the said criminal proceeding as expeditiously as possible and preferably within six months from the date of communication of the order and not to allow any undue adjournment to either of the parties. It is not clear to this Court as to whether any application under Section 205 of the Code was filed on behalf of the accused persons. If any such application is pending the learned Magistrate would dispose of the same in accordance with law keeping in mind that Case No. C.R. 317/94 is a summons procedure case and summons against accused persons were issued. In view of the discussion made above the criminal proceeding being G.R. Case No. 1275/94 pending before the learned SDJM, now ACJM, Jalpaiguri arising out of Kotwali P. S. Case No. 370/94 dated 11.10.94 is hereby quashed.
32. The revisional application bearing No. 1142/96 is accordingly allowed and disposed of in the light of the observation made above. The revisional application being C.R.R. No. 2753/96 is hereby dismissed in view of the discussions made above.
33. All interim orders passed earlier stand vacated and the learned Magistrate is directed to take effective steps for early disposal of the complaint case No. 317/94.
34. I make it clear that the observation made by this Court in this revisional applications are only for the purpose of the matter or points concerning revisional applications and this Court has not entered into merit of the case and the learned Magistrate will arrive at his own decision on the basis of evidence and materials on record without being influenced in any way by the observations of this Court.
35. This order will govern both the criminal revisional applications bearing C.R.R. No. 1142/96 and C.R.R. No. 2753/96.
36. Criminal Section is directed to send a copy of this order to the learned CJM, Jalpaiguri, learned ACJM, Jalpaiguri and the learned Judicial Magistrate, 1st Court, Jalpaiguri for information and necessary action and is also directed to send down the Lower Court Records of G.R. Case No. 1275 of 1994 to the concerned Court below.
Later:
Let xerox certified copy of this order be given to the parties within two weeks from the date of making of such application on payment of proper fees and charges.