Calcutta High Court (Appellete Side)
In Re: Jagadish Singh vs Santosh Iyer & Ors on 20 August, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
20/08/2013
CRR No. 4043 of 2011
(CRAN No. 378 of 2012)
with
CRR No. 4018 of 2011
(CRAN No. 374 of 2012)
with
CRR No. 4034 of 2011
(CRAN No. 375 of 2012)
with
CRR No. 4016 of 2011
(CRAN No. 376 of 2012)
with
CRR No. 4017 of 2011
(CRAN No. 377 of 2012)
In Re: Jagadish Singh vs. Santosh Iyer & Ors.
Mr. Bhaskar Sen, Bar-at-Law
Mr. Sekhar Basu, Sr. Adv.
Mr. Kaushik Gupta, Adv.
Mr. Sourav Bhagat, Adv.
Mrs. Sayantani Santra, Adv.
... For the petitioner
Mr. Krishnendu Gooptu, Bar-at-Law
Mr. Ayan Bhattacharya, Adv.
Mr. Anjan Dutta, Adv.
Mr. Pawan Kr. Gupta, Adv.
Mr. C. K. Saha, Adv.
... For the O.P.
As the learned Advocates for both the parties submitted that
the subject-matter of all the five revisions are same, so, by a
common judgment, all the matters are taken up for disposal.
The application under Section 482 of the Code of Criminal
Procedure, 1973 was lodged by the petitioner for quashing of
proceedings in connection with the complaint case No. C-
26935/2011 pending before the learned Metropolitan Magistrate, 8th
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Court, Calcutta under Sections 418/420/406/120B IPC and the
orders passed therein including the orders dated 16.1.11 and
22.1.11 respectively.
In brief the background of these revisions are that the
petitioner is a non-executive Director of MIMEC India Ltd. situated
at 5th floor, Poonam Building, 5/2, Russell Street, Calcutta-71 since
28.3.2005. Before that the petitioner was in no way connected with
the said company. The petitioner came to know that on or before
14.12.11, a petition of complaint had been filed against the
petitioner in complaint case No. C-26935/2011 before the Court of
learned Metropolitan Magistrate, 8th Court, Calcutta. The complaint
shows that the said company, being accused No. 1 alongwith
accused No. 2 to 9 being Directors and other Officers of accused No.
1 published and distributed a pamphlet/brochure named "Prakiti
Beckons" offering to public to sell plots on the outskirts of
Hyderabad about 36 kms. away from the heart of the city on NH 9,
close to Ramojirao Film City. Based on such representations the
complainant purchased a plot of land of the said Project and
received the sale deed in 1994 executed on 7.4.94 at Nalgonda, A.P.
and made over to him by the accused No. 10 and 11. But,
subsequently, no development was carried out.
When the complainant asked explanation from accused No. 1
to 9, for the first time, they pleaded that they are merely marketing
agent of accused nos. 10, 11 and 12. In 2011 the complainant
learnt for the first time that either the entire or parts of land under
"Prakiti" project has already been resold to third parties including
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one M/s. Sri Sri Developers who in turn have renamed the project
as "Rich Valley" and reselling the plots to general public. The
complainant asked explanation through Advocate's letter dt. 26.4.11
for refund of the money entrusted with the accused and make good
loss for such dishonest acts. To utter surprise the accused persons
vide letter dt. 27.6.2011 washed their hands of liability asking the
complainant to take up the matter with either accused No. 10 or Sri
Sri Developers. Thus, the company and the KMR States & Buildings
Pvt. Ltd. and the Directors and Officers have committed offence
under Sections 418/420/406 IPC read with Section 120B IPC. The
petition of complaint, if taken notice of in its entirety and believed to
be true does not make out the offence as alleged against the
petitioner. The allegations are vague and omnibus. The alleged
sale of land and execution of deed at sub-Registrar, Nalgonda, A.P.
took place in 1994. The petitioner only became associated with the
said company as non-executive Director on and from 28.3.2005 and
by no stretch of imagination can be said to be liable for any act or
omission committed before such date.
Having failed to succeed before the consumer court, the
complainant filed a money suit being No. 477/2011 and that was
also dismissed for default by the order dated 7.5.2008. The
restoration petition is pending against that order. The complaint
has been filed as an arm twisting technique. Before the consumer
court and the civil court, there is no specific allegation as to the
entrustment of any property whatsoever by the complainant to the
petitioner.
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Hence, the basic ingredients of Section 406 IPC are not made
out in the instant case. There is no specific averment in the
complaint as to the role played by the petitioner in the
cheating/inducement of the complainant. The complaint has been
lodged merely to pressurize and harass him. There is no element of
cheating in the petition of complaint. The complainant stated that a
deed of sale was executed in respect of a demarcated plot of land
being 498 sq. mtrs. situated at plot No. 487, survey No. 32, sector III
of village Malkapur, Choutuppal Mondal, Dist. Nalgonda, A.P. in
favour of the complaint, by accused Nos. 10 and 11. The petitioner
is in no way connected with accused Nos. 10 an 11 being M/s. KMR
States & Buildings Pvt. Ltd. and K. Madhava Reddy respectively.
The alleged incident of representation, sale of land and
execution of conveyance in favour of the complainant, all have been
done in 1994 and no explanation has been given by the complainant
so as to reason for the delay of about 17 years for filing the instant
complaint. Continuation of the instant proceedings would be an
abuse of process and the same ought to be quashed in the interest
of justice.
The learned Metropolitan Magistrate, 8th Court, Calcutta
illegally and without any application of judicial mind issued bailable
warrant of arrest against the petitioner on the same date after
issuing summons. The order of taking cognizance is without due
application of judicial mind and is contrary to the statutory
provisions as laid down in Rule 183 of the Calcutta High Court
(Rules), 1985 and hence is bad in law.
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It was further contended that admittedly the said company
acted only as a selling agent as it only had a limited role. The
alleged commission of offence happened in 1994. The petitioner,
who became a non-executive Director in 2005, could not be charged
with Section 120B IPC.
In support of their respective cases the learned counsel for
both the sides not only advanced extensive oral arguments at length
before me but submitted written notes of argument on their behalf.
In support of their case learned counsel for the petitioner
cited before me the following decisions for quashing of the
proceedings being complaint cases pending in the learned court
below:
1.(2011) 3 SCC 351 Harshendra Kumar D. vs. Rabitilata Koley & Ors.
2. (2010) 8 SCC 524 M.A.A. Annamalai vs. State of Karnataka & Anr.
3. (2012) 1 SCC 520 Anita Malhotra vs. Apparel Export Promotion Council
4. AIR 2011 Supreme M/s. Thermex Ltd. & Ors. vs. K. M. Court (Cri) 2349 Johny & Ors.
5. (2008) 5 SCC 662 S.K. Alagh vs. State of U.P. & Ors.
6. (2008) 5 SCC 668 Maksud Saiyed vs. State of Gujarat
7. (2013) 4 SCC 506 GHCL Employees Stock Option Trust vs. Kranti Sinha
8. (2000) 2 SCC 636 G. Sagar Suri & anr. vs. State of U.P. & anr.
9. (2006) 6 SCC 669 Ram Biraji Devi vs. Umesh Kumar Singh & Anr.
10. (2005) 10 SCC 336 Uma Shankar Gopalika vs. State of Bihar & anr.
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11. (2013) 1 C Cr LR Paramjit Batra vs. State of Uttarakhand (SC) 755 & Ors.
12. (2005) 10 SCC 228 Anil Mahajan vs. Bhor Industries Ltd. & Anr.
13. (2010) 10 SCC 361 V. P. Shrivastava vs. Indian Emplosives Ltd. & anr.
14. (2002) 1 SCC 241 S. W. Palannitkar & Ors. vs. State of Bihar & anr.
15. (1993) 3 SCC 609 Ajay Agarwal vs. Union of India & Ors.
16. (2012) 9 SCC 512 C.B.I., Hyderabad vs. K. Narayana Rao
17. (2013) 2 SCC 435 Udai Shankar Awasthi vs. State of U.P.
18. (2005) 3 SCC 670 Suresh vs. Mahadevappa Shivappa Danannava & anr.
19. (1998) 5 SCC 749 Pepsi Foods Ltd. & anr. vs. Special Judicial Magistrate & ors.
20. (2004) 4 SCC 714 State of U.P. & anr. vs. Johri Mal
21. (2011) 5 SCC 305 State of U.P. vs. Hirendra Pal Singh
22. (1973) 1 SCC 461 State of Assam & anr, Etc. vs. Basanta Kumar Das, Etc. Etc.
23. (2006) 7 SCC 296 Popular Mutiah vs. State Represented by the Inspector of Police
24. AIR 1973 SC 786 Pratap vs. State of U.P., and
25. (1960) 3 SCR 388 R. P. Kapur vs. State of Punjab On the other side, the learned counsel for the Opposite Party referred to the following decisions against quashing of the proceedings being complaint cases pending in the learned court below:
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1. (2010) 2 SCC 114 Dalip Singh vs. State of U.P. & Ors.
2. (2011) 6 SCC 145 Abhyudya Santha vs. Union of India & Ors.
3. (2011) 12 SCC 437 Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayan Reddy & Ors
4. (2013) 2 SCC 435 Udai Shankar Awasti vs. State of U.P.
5. AIR 2011 SC 20 Irridium India Telecom Ltd. vs. Motorola Incorporated & Ors.
6. (2012) 3 SCC 132 Lee Kun Hee vs. State of U.P. & Ors.
7. 2007 (4) Crimes G. Selvaraj vs. State of W.B. 447 (Cal)
8. (2004) 6 SCC 754 Harnam Singh vs. Everest Construction (Part 6) Co. & Ors.
9. (2000) 1 SCC 230 State of H.P. vs. Tara Dutt & Anr.
10. (1993) 3 SCC 609 Ajoy Agarwal vs. Union of India.
11. (2000) 8 SCC 203 State of Kerala vs. P. Sugatham.
12. (2004) 12 SCC 336 Damodar vs. State of Rajasthan
13. 1992 CrLJ 792 Balaram Singh vs. Sukhwant Kaur
14. (2001) 8 SCC 645 M. Krishnan vs. Vijoy Singh & Ors.
15. (2006) 1 SCC 627 Mohd. Yousuf vs. Smt. Ataq Jahan
16. 1994 (1) Crime 195 Kamala Devi vs. Sushila Sharma (Cal)
17. 2009 (3) AICLR Bengal Shrachi Housing Dev. Ltd.
(Cal) 394
18. (2000) 3 SCC 745 U.P. Pollution Control Board
19. (2003) 4 SCC 139 Dy. Chief Controller of Imports & Exports
20. (2012) 5 SCC 424 Bhusan Kumar vs. State
21. (2012) 11 SCC 465 Nupur Talwar vs. CBI
22. (2012) 1 SCC 680 Ashish Chadha vs. Asha Kumari 8
23. (2013) 2 SCC 801 Arun Bhandari vs. State of U.P.
24. AIR 2009 SC 2383 Ravindra Kumar Madhanlal Goenka
25. 2008 (5) Recent Bholu Ram vs. State of Punjab Apex Judgments (RAJ)
26. (2002) 1 SCC 555 Kamaladevi Agarwal
27. JT 2000 (10) SCC Vitoori Pradeep Kumar 335
28. AIR 1999 SC 1212 Rajesh Bajaj
29. (2007) 3 SCC 548 Rashida Kamaluddin Syed
30. JT 2001 (1) SC 150 Lalmuni Devi vs. State of Bihar
31. (2007) 5 SCC 786 Asit Bhattacharjee
32. AIR 1963 SC 1620 Banwarilal Jhunjhunwala
33. AIR 1960 SC 1113 Vadilal Panchal, and
34. (1993) 3 SCC 54 R. S. Khemka vs. State of Bihar From the trend of argument and the decisions cited before me by the respective parties, it appears that each party argued that the decisions referred to by the other party are not applicable in the facts and circumstances of the present case.
In case of Opposite proposition of law laid down by the Hon'ble Apex Court over a particular type of offence or aspect, the court has to follow the decision which in view of the High Court is better in point of law to be followed. In this regard, reliance may be put on Kamaleshkumar Ishwardas Patel vs. Union of India & Ors. (Full Bench) as reported in 1995 (1) All India Criminal Law Reporter
117. To appreciate the cases from a better angle Sections 418/420/406/120B IPC are reproduced hereunder: 9
S. 418 - Cheating with knowledge that wrongful loss may ensure to person whose interest offender is bound to protect - Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
S. 420. Cheating and dishonestly inducing delivery of property
- Whoever, cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
S. 406 - Punishment for criminal breach of trust - Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
S. 120B. Punishment of criminal conspiracy - (1) Whoever, is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever, is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be 10 punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.
The initial statement given by the defacto-complainant Santosh Iyer on solemnisation and affirmation under Section 202 of the Code of Criminal Procedure reads as under:
"I am defacto-complainant of this case. I filed this case against M/s. MIMEC (India) Pvt. Ltd., Tapas Singh, Dipak Dutta, S. Mukherjee, C. R. Sridharan, P. K. Sarkar, A.K. Banerjee, Sanjay Agarwal, M. R. Vinod, M/s. KMR Estates & Buildings Pvt. Ltd., K. Madhava Reddy, K. L. Devi. The accused persons published brochures and pamphlet Prakiti Beckons inviting booking for plots of various sizes at their township Prakiti. I also booked one plot measuring 598 sq. yards and paid Rs. 94620/-. Other plot owners also paid money. Then the accused delivered a sale of deed dt. 7.4.94 by the accused No. 10 & 11 but their names were not in the brochures. The total value of plot were fixed at Rs. 23760/- but Rs. 94620/- were taken for developmental charges. All the money receipts were issued by the accused No. (1). After waiting considerable time, I enquired the matter and found that the entire lands were kept barren and no development done. Then I learnt that entire land or part of land at Prakiti Township were resold by the accused persons to Sri Sri Developers and they sold the plots to general public @ Rs. 4500/- per sq. yards. Sri Sri Developers did this work in collusion with accused No. 1 to 10. When I called for explanation the accused person vide letter dt. 27.6.11 evaded their liability asking us to take the matter either with the accused No. 10 or Sri Sri Developers. 11
The accused persons cheated. So, I filed this case and pray for process. I filed all documents."
Other witnesses of other cases gave similar type of statements on SA under Section 200 of the Code of Criminal Procedure.
The relevant order dated 22.11.11 passed by the learned Magistrate for taking cognizance against the accused persons reads as under:
"Today is fixed for SA.
Complainant is present.
Examined the complainant on SA. Perused the documents filed.
I find sufficient reason to raise strong & reasonable complicity against the accused persons viz. 1) M/s. MIMEC India Ltd.,
2) Jagdish Singh, 3) Dipak Dutta, 4) S. Mukherjee, 5) C. R. Sridharan,
6) P. K. Sarkar, 7) A. K. Banerjee, 8) Sanjay Agarwal, 9) M. R. Vinod,
10) M/s. KMR Estates & Buildings Pvt. Ltd., 11) K. Madhava Reddy and 12) K. L. Devi in the alleged commission of offence punishable under Sections 406/418/420/120B IPC fixing 21.12.11 for SR.
Register at once.
Later:
Perused the petition under Sections 204/87(a) CrPC for issuing W/A. against the accused persons for ensuring their appearance.
Perused the case record and other materials on record. Perused the documents filed.12
I find sufficient reasons to make strong & reasonable complicity against the accused persons that they may abscond after receiving the summons.
Considering the urgency, issue bailable warrant of Rs. 5000/- against the accused No. 2 to 12 (except 1 & 10) for ensuring their appearance before the court.
O/C, Shakespeare Sarani is hereby directed to execute the W/A. Fix 21.12.11 for ER of W/A. Register at once."
The main contention of the learned Counsel for the Petitioner was that i) the complaint does not disclose ingredients of Section 406/418/420 IPC read with Section 120B IPC and ii) it is the duty of the learned Magistrate to examine whether on the basis of the averments made in the complaint as it stands a prima facie case has been made out or not for taking cognizance.
On the other hand, the learned Counsel for the Opposite Party argued that after recording the pre-summoning evidence vide order dated 22.11.11, the learned Magistrate was pleased to find a prima facie case i.e. a strong and reasonable case under Sections 418/420/406/120B IPC and issued bailable warrant against the accused persons.
The learned Counsel for the Petitioner further argued that issuance of process by the learned Magistrate has been done in a mechanical manner without any application of judicial mind. 13
It is true that from some of the decisions submitted by the learned Counsel for the Opposite Party it transpires that the statements under Section 200 of the Code of Criminal Procedure on solemnisation and affirmation is not an encyclopaedia and it is also not expected to give the full accounts and description of the offence in question. But it is equally true that important facts on which the criminal case is going to be started must be mentioned because subsequent improvement by incorporation of new facts which was not at all mentioned in the statement on SA should not be permitted. Reliance may be put in the decision reported in (2005) 3 SCC 670 (supra) wherein it was held that when the dispute is of civil nature, there was absence of ingredients of alleged offence of cheating.
There is no specific mention as to how the petitioner cheated.
The learned Magistrate ought to have conducted an enquiry under Section 202 of the Code of Criminal Procedure by a competent person of Hyderabad to get the actual picture to satisfy himself before issuance of process. In the initial statement given under Section 200 of the Code of Criminal Procedure no averments were made with respect to any representation, breach of trust or conspiracy. In the case of Pepsi Food Ltd. (supra) it was held as follows:
"... Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must 14 reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support of thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. ..."
In the instant case, the impugned order of the learned Magistrate dated 22.11.11 does not reflect that he applied his judicial mind, when all the ingredients as have been explained in the petition of complaint by the Opposite Party are not available on the statement on SA.
On the other hand, the learned Counsel for the Opposite Party submitted that the alleged offences are continuing offences and irrespective of the date of joining of the petitioner in the company his role is established. In support of the contention the learned Counsel cited before me the decisions as reported in the case of State of H. P. vs. Tara Dutt; Ajay Agarwal vs, Union of India; State of Kerala vs. P. Susatham; Damodar vs. State of Rajasthan (all supra). It was further argued by him that the complaint need not be encyclopedia and the court need not record each and every allegation in minute 15 precision. In the initial deposition, the witness may not be very elaborate or detailed. In such a situation, it has to be seen whether the complainant alongwith the initial deposition and other materials produced, if any, disclose the core incident. At this stage of issuance of process, the learned Magistrate is required to record the substance of the deposition. Unless nothing is contrary positively to the averments made in the petition of complaint, the initial deposition by the complainant as recorded in substance by the learned Magistrate may be considered. Reliance was placed on the cases of (2001) 8 SCC 645 M. Krishna vs. Vijay Singh & Ors.; Md. Yousuf vs. Smt. Afaq Jahan (2006) 1 SCC 627; Dy. Chief Controller of Imports & Exports (2003) 4 SCC 139; Bhusan Kumar vs. State (2012) 5 SCC 424 (all supra).
But each case has to be judged with reference to its peculiar nature and circumstances. Mere signing of Director's report is not enough. How and where and when the petitioner cheated or made conspiracy is in gist is required to be reflected in the statement on SA under Section 200 of the Code of Criminal Procedure especially when the petitioner joined accused No. 1 company on 28.3.05 whereas the birth of the incident was way back in 1992-94. Admittedly, the petitioner was appointed as the Director of the Company on 28.3.2005. The complainant in order to make new allegations produced certain documents attached with the vacating application (CRAN No. cited above). The petitioner attached Form No. 32 received by the Registrar of the Companies to the revisional application showing that he joined MIMEC India Ltd. on 28.3.2005. 16 Form 32 is an authentic public document and there is no reason as to why the same cannot be looked into by the Hon'ble Court for the purpose of ascertaining the truth and substantial justice. The petition of complaint does not mention any specific overt act on the part of the petitioner. The complainant has deliberately suppressed material facts that would clearly show that the said dispute even, if any, is of civil nature and the petition of complaint has been filed just to exert undue pressure on the petitioner for harassment. Prior to filing the said petition of complaint, the complainant had pursued civil remedies and failed to obtain any relief. The complainant had filed a consumer complaint relating to the same transaction before the Calcutta District Forum (Unit I) which was numbered as CPF Case No. 342/98 and dismissed by order dated 11.9.98. These facts appear to have been suppressed.
The learned Counsel for the Opposite Party argued that whether the petitioner was the Director of the Company during 1992-94 or not is immaterial as he had conspired in an individual capacity. It was contended by the learned Counsel for the Opposite Party that the entire accounts and the Director's report has been signed by the petitioner as Director on all pages for the financial year ended on 31.3.05, filed together with annual accounts of accused No. 1 company which is a public document under Section 74 of the Indian Evidence Act and the Companies Act. So, the connection of the petitioner is established. But the petitioner stated that "it does not indicate involvement in the day to day activities of the business". So, it was contended that the petitioner resorted to falsehood. In 17 affidavit in connection with a 'vacating petition' of CRAN 378/12 the petitioner denied as follows:
"Pursuant to the company continuously pursuing the matter of recovery of outstandings, a memorandum of Understanding was signed with KMR on 29th August, 1997, whereby KMR agreed to transfer 80 acres of land at the above site to the company in settlement of all dues from KMR subject to the company acquiring the plots sold at "Prakriti" from the plot owners and agreeing to discharge KMR from all liabilities for non-development of th e plots ..." Thus on the very issue of non-development leading to cheating, criminal breach of trust, conspiracy etc. and seeking to discharge KMR from all liabilities for non-development of the plots and what has been stated therein, such statement in Directors Report made before Registrar of Companies again clearly shows serious and close linkup between accused No. 1 company, the Director of the accused No. 1 company that is the petitioner herein being accused No. 2 in the complaint and accused No. 10 and others all acting in conspiracy now and even ratifying earlier dishonest and fraudulent acts and all are to face trial now. Saying on oath in the revision petition (CRR No. 4043/2011) filed before this Hon'ble Court at para 18 at page 8 that "Your petitioner states that it is pertinent to mention herein that your petitioner is in no way connected with the accused nos. 10 and 11, being M/S. KMR Estates & Builders Pvt. Ltd. and K. Madhava Reddy respectively", is shameless perjury."18
But no document was filed alongwith the complaint before the learned Magistrate to show any specific overt act or omission committed by the petitioner. The Opposite Party cannot be allowed to alter its case before the Hon'ble court by going beyond the petition of complaint and making a bald statement during oral submission mentioning that the petitioner was a party to the conspiracy during the period from 1992-94.
The decisions as reported in 2011 (3) SCC 351; 2010 (8) SCC 524 and 2012 (1) SCC 520 (all supra) demonstrate that it is admissible for the Hon'ble court to look into Form 32 duly submitted with the Registrar of the Companies in the nature of the public document. As such strong reliance may be placed from which it will be clear that the petitioner was appointed the Director of the Company on 28.3.2005 but the transaction took place in 1992-94.
The learned Counsel for the Opposite Party contended that since the alleged offence is continuing offence, so, the role played by the present petitioner subsequently cannot be washed away. Learned Counsel for the Opposite Party argued that sadly the petitioner misunderstood the entire complaint. At para 2, 3, 4, 7, 10, 11 and 12 there are specific allegations against the present petitioner. The Opposite Party did not implicate the petitioner on his vicarious capacity. Rather specific and pinpointed allegations were made against the present petitioner. He made representation and conspired from the very beginning. He had dealt with the transaction with the Opposite Party (immaterial whether he was a Director of accused No. 1 or not) while investments were made and throughout 19 the period till filing of the revision petition when the investments are held back without returning money or delivering developed land as promised and the lands in question being resold. Purported sale deeds were executed by the accused persons but the Opposite Party was never handed over any piece of land or at all contacted for handing over of any so-called land. The accused persons went on jointly representing that it was not their responsibility and washed their hands of the entire matter.
The learned Counsel for the Opposite Party argued that the petitioner claimed that he is in no way connected with M/s. KMR Buildings Pvt. Ltd. & K. Madhava Reddy but the entire accounts and Director's report has been signed by the petitioner as Director on all pages. Report of the Directors' signed by the present petitioner for the financial year ended on 31.3.2005 filed together with annual accounts of accused No. 1 company is a public document under Section 74 of the Indian Evidence Act. The mobilization of funds by the company has been a collective investment scheme without having any registration from SEBI. The petitioner in furtherance of Sections 418/420/406/120B IPC ratifies and confirms all the fraudulent acts of the company. In this regard, the decisions as reported in 2010(2) SCC 114; 2011 (6) SCC 145 and 2011 (12) SCC 437 (all supra) suggest that the petitioner has not come with clean hands and he wants to hoodwink the Opposite Party.
The learned Counsel for the Petitioner submits that no actus-reus has been alleged against the petitioner. The concept of vicarious liability is unknown to the offence of Indian Penal Code. 20
In the case of M/s. Thermex Ltd. (supra) it was held by the Hon'ble court that the concept of vicarious liability is unknown to criminal law. Further in the case of S. K. Alagh vs. State of U.P. (supra) it has been held that "in absence of any provision laid down under the statute, a Director of a company or any employee cannot be held to be vicariously liable for any offence committed by the company itself". Similar law was laid down in the case of Maksud Saiyed (supra). In the case of GHCL Employees Stock Option Trust (supra) it was held by the Hon'ble court that the Magistrate while ordering for issuance of summons did not record the role played by the Managing Directors which is a sine qua non for initiating criminal action against them and issuance of summons amounted to abuse of process of law. Having considered the pros and cons of the matter, I am of the view that the attempt of the Opposite Party to rope the petitioner is impliedly under the capacity of vicarious liability as he stepped only in 2005.
It was argued by the learned Counsel for the petitioner that the complainant cannot travel beyond their petition of complaint and the materials relied therein to prove their allegations. The Opposite Party wanted to connect the petitioner with the alleged offence committed in 1992-94 also, in addition, in his individual capacity and produced certain documents with its vacating application to make new allegations. Those documents were not produced by the complainant at the time of taking cognizance. The Hon'ble court while dealing with the application under Section 482 of the Code of Criminal Procedure is to see whether on the basis of the statements 21 made in the petition of complaint and on solemn affirmation and the documents, if any, produced before the learned Magistrate for reasonable benefit, satisfied as to existence of the case. In the present case, there is no direct connection of the present petitioner with the alleged offence during the period of 1992-94. The complainant relied on the report of the Director of MIMEC India Ltd. for the year ending on 31.3.2005 but those documents were not filed before the learned Magistrate and for the first time has been filed before the Hon'ble court. Moreover, the annual report was incomplete and the complainant filed the same. This clearly shows that the complainant is not approaching the court with clean hands. Hence, there is nothing wrong on his part in signing the annual report ended on 31.3.2005. The signing of the report is not an offence. The Opposite Party banked upon 'MOU' signed in 1997 between the company and M/s. KMR Estates & Builders Pvt. Ltd. The said Director's report cannot be used to show his complicity with KMR as the 'MOU' was signed prior to his joining the company.
It was further contended by the learned Counsel for the Petitioner that the complainant has attempted to canvas civil dispute in the cloak of the criminal prosecution to circumvent law of limitation. In the instant case, the dispute, if at all, is essentially of civil nature. The gist of the allegation is that a promise was made to the complainant that the property would be developed but that promise was not kept. A deed was executed. A civil claim which is hopelessly barred by the law of limitation has been given a cloak of a criminal offence. In this regard reliance is placed in the cases of 22 2000 (2) SCC 636; (2006) 6 SCC 669 and (2005) 10 SCC 336 (supra).
The complaint had taken recourse to the civil remedies by filing consumer complaint and/or civil suit before appropriate courts. It is pertinent to note that the complainants in these complaints cases have suppressed these facts. The learned Magistrate was not aware about the pendency of civil proceedings at the time of taking cognizance or issuance of process. It is submitted that in this case the dispute is essentially of civil nature without an iota of criminality involved to the extent it relates to the petitioner. In this regard, reliance may be placed in the decision of Paramjeet Batra vs. State of Uttarakhand (2013) 1 Cal Cr LR (Supreme Court)
755. The complainant alleges that there was a promise to develop the project by constructing schools, malls etc. therein, which was not done and thus the company and others have committed offences under Sections 406/418/420 IPC. The petition of complaint even if believed to be true speaks about the alleged non-fulfillment of the promise by accused No. 1 i.e. the company and the accused No. 10, who is the developer, to develop the project in which a plot of land was sold to the complainant. The allegation in the petition of complaint is at best a breach of contract entered into between the complainant and the accused person No. 1 and 10, 11, which is a dispute purely civil in nature. Reliance is placed on the judgment of the Supreme Court (3 Judge Bench) in the case of Anil Mahajan vs. Bhor Industries Ltd. as reported in 2005 (10) SCC 228. 23
In the present case, it is to be noted that the petitioner was not associated with the said company at the beginning of the transaction and was not present in the said company in any capacity even when the transaction came to an end. The petitioner joined the company much later on 28.3.2005 and hence cannot be held to be liable for the offence of cheating which was allegedly committed in 1992-94. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in the case of V. P. Shrivastava vs. Indian Explosives Ltd. as reported in 2010 (10) SCC 361. Mere failure to keep a promise will not tantamount to an offence under Section 420 IPC. Reliance is placed on the Supreme Court judgment in the case of S. W. Palanitkar vs. State of Bihar (supra).
The learned Counsel for the Opposite Party contended that behind the back of investor, the land has been sold to a third party. So, the criminal and civil cases can proceed simultaneously and in view thereof it cannot be said that since the civil proceedings have been initiated the criminal proceedings are not maintainable. Reliance was put in the case reported in 2002 (1) SCC 555; (2002) 9 SCC 581; (1999) 3 SCC 259 and (2007) 3 SCC 548 (all supra).
It is not disputed the law laid down therein. But the principle laid down by the Hon'ble Supreme Court in the case of G. Sagar Suri (supra) appear to be more applicable wherein the Hon'ble court observed as follows:
"Jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. 24 It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
The learned Counsel for the Petitioner contended that the complaint case has been filed after inordinate delay. According to submission of the Opposite Party, accused nos. 10 and 11 executed the sale deed on 7th April, 1994. But the complaint was filed on 16.11.11. The case of such inordinate delay of 17 years in filing the complaint has not been explained by the complainant. Regarding this delay, the learned Counsel for the Opposite Party submitted that Section 468 of the Code of Criminal Procedure provides the bar to take cognizance after lapse of the period of limitation. Section 420 IPC is punishable with 7 years. Hence, the bar under Section 468 Code of Criminal Procedure has no manner of application in view of Section 463 of the Code of Criminal Procedure which enumerates that the period of limitation in relation to the offences which may be tried together shall be determined with reference to the offence which is punishable with more severe punishment or as the case may be. Further, it was contended that since the Code of Criminal Procedure does not prescribe any bar of limitation regarding offence punishable 25 with more than 3 years, question of limitation cannot arise in the present case. Even, if any delay at all, the opposition/position has every right to explain the same during trial. In this regard, reliance was placed on a decision reported in (2004) 6 SCC 754 (supra).
In the case of Suresh vs. Mahadevappa (supra) for delay of 10½ years, the Hon'ble Supreme Court dismissed the complaint on the ground of latches on the part of the complainant. The complaint does not show that the petitioner was in any way involved in any transaction between accused No. 1 and M/s. Sri Sri Developers Ltd. or any other 3rd Party during last 17 years.
It was contended by the learned Counsel for the Petitioner that the complaint should be quashed on the ground of lack of jurisdiction of the learned Magistrate, Calcutta/learned Metropolitan Magistrate, 8th Court, Calcutta in taking cognizance of the complaint. Section 482 of the Code of Criminal Procedure inter alia states that "any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication messages, be inquired into or tried by any court within whose local jurisdiction such letter or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused persons."
In the present case, it was argued by the learned Counsel for the Petitioner that nowhere in the initial statement or in the petition of complaint it has been alleged that brochures/pamphlets 26 advertising the project were published or circulated within the jurisdiction of the learned Metropolitan Magistrate or that the accused persons approached the complainant within the jurisdiction of the learned Metropolitan Magistrate or even that the money was handed over to the accused persons in Kolkata. The para 4 of the petition of complaint specifically states that the letters, mails alleged to be sent by and on behalf of the accused No. 1 through other accused persons including the petitioner herein deals with sale of land in the project 'Prakriti' which was located on the outskirts of the city of Hyderabad, A.P. So, if at all any case of cheating has been made out, then that offence is to be inquired into or tried by the court within whose local jurisdiction the sale deed was executed by the accused persons or money was received by the accused persons. Therefore, under these circumstances, the learned Magistrate has no jurisdiction to take cognizance and issue process on the basis of the petition of complaint.
On the other side, the learned Counsel for the Opposite Party argued that the concerned learned Magistrate has territorial jurisdiction. He contended that the Office of the learned Metropolitan Magistrate was within the jurisdiction of Russell Street, Calcutta. Claimants are at Calcutta. Property, money entrustments, false representations and deception etc. are within jurisdiction of Calcutta. Further, it was contended that circulation of the brochures, letters from the accused persons for marketing and other publications in print media are at Calcutta. In this regard, he referred to Sections 178/179/181(4)/182 of the Code of Criminal 27 Procedure. In support of the contention he cited before me the decisions as reported in (2007) 5 SCC 786; AIR 1963 Supreme Court 1620 (all supra). Having considered the submissions of both the sides in the light of the decisions and materials on record and the Sections of the Code of Criminal Procedure and Indian Penal Code referred to above, I am of the opinion that statutorily both the courts of Calcutta and Andhra Pradesh have jurisdiction over this case.
The learned Counsel for the Opposite Party argued that the petitioner did not come with clean hands and misused the Office of the learned Advocate General of the State by making him appear before the court for the accused which is violative of instructions given in Legal Remembrancer Manual, 2nd Edn., 1971, Rule 23 wherein the limitation of the learned Advocate General as a condition of his service is he is debarred from advising and holding brief against the State, defending accused persons in criminal prosecution etc. So, the learned Counsel for the Opposite Party argued that the revision is not maintainable as the State of W.B. has not been made party but the learned Advocate General prayed for stay of warrant and proceedings. Reliance was put on the decision as reported in (2013) 2 SCC 435 (supra).
On the other hand, the learned Counsel for the Petitioner submitted that the LR's Manual is a compilation of administrative directions having no force of law within the meaning of Art. 13 of the Constitution of India. In this regard, reliance was put in the case of State of U.P. vs. Johuri Mal (supra). It was contended by the learned Counsel for the Petitioner that even if none appears for the petitioner 28 the court can "suo motu" exercise jurisdiction under Section 482 of the Code of Criminal Procedure. Reliance was made on (2006) 7 SCC 296 showing the above proposition.
Relevantly it is mentioned that the prayer for stay against issuance of w/a without impleading the State as O.P. whether can make the revision dismissable. The Magistrate before issuance of warrant should bear in mind the character of Section 87 of the Code of Criminal Procedure. Though, in a warrant case, a court is empowered to issue in the first instance a warrant for securing the presence of the accused, it is "desirable" that the court may at the first instance issue summons for appearance of the accused and may issue warrant either bailable or non-bailable in case it is satisfied that despite efforts by police the accused could not be traced. Reliance may be placed on R. Babu Sankar vs. State of Karnataka 2004 Cri LJ 3214. The learned Court below did not record reason that the accused may abscond or will not obey summons. Suspicion that the accused may abscond will not do. No foundation was laid before him. Issue of w/a. at first instance against, particularly, the present petitioner who was nowhere in the company in 1992-94 is harsh. Moreover, even in private cases w/a may be prayed for without making the State a party. Therefore, I am of the opinion that the appearance of the learned Advocate General will not have solid impact on the outcome of this revision. Accordingly, the revision is maintainable.
29
It is correct that times without number the Hon'ble Apex Court has alerted the High Court that the question of quashing of proceedings are to be resorted to in exceptional cases. But it is equally true that the Hon'ble Apex Court has not propounded any law showing that no proceedings can be quashed ever. Chaffs are required to be separated from the grains. Accumulation of chaffs without separation makes it a tough job to collect the grains. Improper allegation appearing ex facie only adds to the pendency of the cases, leaving chance of success doubtful. What is joy to one may be death to other. The duty of proper justice is to see that the joy should not unnecessary invite misery to the other side without reasonable and lawful ground. Usually, the continuance of a criminal case cannot be throttled, if sound and reasonable basis are prima facie available from the very inception. The proportionality of the allegations should be commensurate to the rationality of possible success. Offence, if any, committed by one cannot be passed to the successors. Offence means and includes an act originating from a particular point of time and ending also to a definite point of time. Offence cannot be truncated. The mens rea of conspiracy cannot develop in the mid-course of alleged offence. A subsequently born baby cannot be penalized for the offence committed by his father. Criminal offence is inherently associated with only the wrong doer and none else. Offence and accused are two sides of a coin. One does not supplant the other.
30
The main transaction of land and alleged cheating took place in Hyderabad. So, the court expects that at least an opinion or evidence from the jurisdiction of the place of property under section 202 of the Code of Criminal Procedure could have been brought before this court to know what actually happened there as a tool to handle the situation more cautiously.
In the case at hand, the petitioner was in no way in the picture when the alleged incident took place in 1992-94. He came in 2005. It will be preposterous to hold guilty anybody for offence, if any, committed well before by the other person. To attract the theory of "continuing offence" the accused must take part in the conspiracy from the starting point. Mere subsequent joining the company will not do. The signing of Director's report cannot establish continuing offence to rope the petitioner.
In the case of R. P. Kapoor (supra) the Hon'ble court inter alia categorized some situations where the inherent power can be exercised to quash the proceedings. Some of those being relevant are taken into consideration, viz. i) whether the allegations in the FIR or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged, ii) where the allegations constitute the offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
Relying on the law propounded by the Hon'ble Apex Court as above and following the principles as laid down in Kamaleshkumar Iswar Das Patel vs, Union of India & Ors. (Full Bench) reported in 1995 (1) All India Criminal Law Reporter 117 (supra), I am of the 31 view that the carriage of the complaint case No. C-26935/11 pending in the court of learned Metropolitan Magistrate, 8th Court, Calcutta against the petitioner will be a sheer abuse of process of court and as such, the same is liable to be quashed.
This order, accordingly, covers other revisions viz. CRR No. 4016/2011 (arising out of case No. C/26934/2011); CRR No. 4017/2011 (arising out of case No. C/26936/2011); CRR No. 4018/2011 (arising out of case No. C/26937/2011) and CRR No. 4034/2011 (arising out of case No. C/26935/2011).
Accordingly, all such revisions stand allowed, CRAN applications are disposed of and corresponding complaint cases in the learned Court below stand quashed.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)