Calcutta High Court (Appellete Side)
Jitendra Kumar Khan & Ors vs State Of West Bengal & Anr on 19 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.R. 4048 of 2013
Jitendra Kumar Khan & Ors.
-vs-
State of West Bengal & Anr.
Mr. Sandipan Ganguly,
Mr. Ayan Bhattacharyya,
Mr. Subir Sabud. ...for the petitioners.
Mr. Pawan Kumar Gupta. ...For the State.
Mr. Sudipto Moitra,
Mr. Z. Alam,
Mr. T. B. Mondal. ...for the O.P.No.2.
Heard on : 19.8.2014
Judgment on : 19.08.2014.
Joymalya Bagchi. J.
Order dated 8th November, 2013 passed by the learned Judicial
Magistrate, 1st Class, Additional Court, Raiganj, Uttar Dinajpur in G. R. Case
No.22 of 2007 pending before the learned Judicial Magistrate, 1st Class,
Additional Court, Raiganj, Uttar Dinajpur arising out of Raiganj Police Station
Case No.7 of 2007 dated 5.1.2007 under Sections 406/420/34 of the Indian
Penal Code rejecting the prayer for discharge from the aforesaid case has been
assailed.
The instant case was registered for investigation on the basis of a
written information lodged by one Kabir Alam with Raiganj Police Station, inter
alia, alleging that the petitioners as agents of M/s. Golden Forest (I) Ltd.
(hereinafter referred to as the said Company) collecting monies from the local
people including the petitioners on promise of repayment of the same along with
interest upon maturity. Subsequently, on enquiry, the defacto complainant came
to know that the said Company had closed down its business and case has been
started against the Director of the said Company at Punjab and Haryana on
24.12.2000. Knowing fully well that the said company had closed down and the Directors were arrested, the petitioners continued to collect monies from the members of the public including the defacto complainant and thereby committed offences of cheating and criminal breach of trust. Pursuant to investigation, charge sheet was filed against the petitioners in the aforesaid case. The petitioners have prayed for discharge from the case, inter alia, on the ground that they were merely agents of the said Company and that they were not aware of the fact that the said Company had closed its business in 2000. It has been further pleaded that by order dated 5.9.2006, the Apex Court had appointed a Committee of management under the Chairmanship of Justice R. N. Agarwal and that by an earlier order dated 25.2.2005, the Apex Court had clarified that the Committee shall not recognise any private settlement and any party making any claim on the basis of such private settlement must come to the Court for appropriate orders. In the self-same order, it was recorded that complaints have been received that agents of the said Company are still collecting deposits. The Apex Court directed the Committee to issue public notice that neither the concerned Company or any other Company has any agent and nobody is authorized to collect money on his behalf. Pursuant to such direction, the Committee issued public notice. It has been contended that no deposits were received by the petitioners after the issuance of public notice and, therefore, they ought to be discharged from the case.
Learned Magistrate by the impugned order dismissed the petition on the premise that the petitioners had collected money after the said Company had closed its business in 2000 and the Directors had been arrested.
Mr. Ganguly, learned counsel appearing for the petitioners submits that the petitioners being merely agents of the said Company and did not have the requisite mense-rea and had acted as per the directions of the office bearers of the said Company. They were not aware that the said Company had closed its business till the public notice was issued by the Committee constituted by the Apex Court. It is further contended that the monies had been deposited in the accounts of the said Company and there was no question of misappropriation at the end of the petitioners.
Mr. Gupta, learned Junior Standing Counsel appearing for the State produces the Case Diary. He drew my attention to the letter dated 31.10.2006 issued by the Chairman of the Committee to the petitioner No.2 herein stating that he has in unauthorised manner taken deposits after the closure of the business of the said Company in 2000 and after the arrest of the Directors of the said Company. He also pointed out various receipts seized in course of investigation, which showed that subsequent to 2000, the petitioners had collected deposits purportedly on behalf of the said Company, which had already closed down.
Mr. Moitra, learned senior counsel appearing for the defacto complainant/opposite party no.2 submitted that the ingredients of the offence of cheating and criminal breach of trust is clearly disclosed in the instant case. Deposits were received by the petitioners' de hors the authority of the said Company when the same had closed down and the Directors were in Jail. Conduct of the petitioners was found to be unauthorised by the Committee constituted by the Apex Court for managing the assets of the Company in liquidation. The prayer for discharge was rightly turned down by the learned Magistrate.
The uncontroverted allegations as transpiring from the materials collected in the course of investigation show that after the said Company had closed down in 2000 and the Directors were arrested, the petitioners continued to collect deposits from various members of the public including the defacto complainant and such monies were not returned to the defacto complainant in terms of the promise held out by the petitioners purportedly acting as agents of the said Company.
I am unable to accept the contention of Mr. Ganguly that such allegations do not prima facie disclose the essential ingredients of cheating and criminal breach of trust. Whether the petitioners were aware of the closure of the said Company and the arrest of the Directors or not are questions of fact, which may be probablised by them in the course of trial. However, at the stage of framing of charge, the materials collected in the course of investigation particularly the receipts issued by the petitioners to various members of the public including the defacto complainant establish prima facie that they had received monies on or after 2000 when the said Company had closed down and gone into liquidation. The stance of the prosecuting agency is also reflected in the letter written by the Chairman of the Committee constituted by the Apex Court for managing the assets of the said Company in liquidation that the petitioners had acted in an unauthorised manner in collecting deposits from the members of the public on or after 2000. It has been argued that the said Company has not been made an accused in the instant case. From the orders passed by the Apex Court, I find that the said company has gone into liquidation and a Committee has been constituted for managing the assets of the said Company in liquidation.
In view of such fact, question of adding the company which has gone into liquidation as an accused does not arise at all.
In view of the aforesaid discussion, I do not find any merit in the instant application. The same is accordingly dismissed.
I make it clear that the petitioners shall be at liberty to raise all defences available in law in the course of trial and observations made in this order shall not have any binding effect in the trial proceeding which needless to mention shall proceed and be concluded in accordance with law.
The Case Diary produced before this Court be returned to the learned counsel appearing for the State.
The interim order, if any, stands vacated.
Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.
(Joymalya Bagchi, J.)