Calcutta High Court (Appellete Side)
Rajesh Jha vs Japonica International Pvt. Ltd. & Ors on 5 February, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
1 05.02.2019
. C.R.R. No. 3409 of 2018
rc.
In the matter of: Rajesh Jha
...Petitioner.
-Versus
Japonica International Pvt. Ltd. & Ors.
Mr. Sabyasachi Banerjee
Mr. Risav Banerjee
Mr. Srinjoy Sengupta ...for the petitioner
This is an application under Section 482 of the Code of Criminal Procedure whereby the petitioner prayed for quashing of the application under Section 156(3) of the Code of Criminal Procedure in connection with Ballygunge Police Station Case No. 142 of 2018 dated 22.10.2018 under Sections 406, 420 and 120B of the Indian Penal Code to C.G.R.Case No. 4453 of 2018 presently pending before the learned Chief Judicial Magistrate, Alipore, South 24-Parganas.
The application was taken out the ground that the parameters as required for an order for investigation under the provision of Section 156(3) of the Code of Criminal Procedure has not been complied with though the order of investigation was passed by the learned Chief Judicial Magistrate, Alipore, South 24-Parganas directing the Ballygunge Police Station concerned to initiate investigation.
According to the petitioner the provision of Section 154(3) of the Code of Criminal Procedure was not complied with in the letter and spirit.
That apart the ground taken by the petitioner is that the projection made between the company and the DMF was unable to achieve and due to such irresponsibility in planning and implementation made by the de facto complainant 2 the company was held responsible due to the actions made by the Opposite Party No. 2.
The de facto complainant suppressed facts as to the support and assistance provided by the company herein and thereby an agreement was being enforced for a span of one and half years even without the payment of the Annual Fee which was due to be paid with was Rs. 82,600/- by the de facto complainant with respect to the franchisee agreement. Even after several reminders the due payment for the Annual Fee never met and allegedly falsely accused the petitioner of such offence.
Mr. Banerjee submits that to bring out an offence under Section 406 of the Indian Penal Code existence of mens rea, which is the most vital ingredient. Mere baseless allegation cannot give rise to Criminal Prosecution for Criminal breach of trust unless supporting evidence is introduced in complaint to show prima facie that the intention to commit such offence was there from the very inception. In the present case, there is no such evidence to show the existence of intention to commit such offence, as the Company had duly satisfied as per the terms and conditions of the Franchisee Agreement and provided much assistance towards the de facto complainant to improvise on the business methodology.
Mr. Banerjee also submits that to bring out an offence under Section 420 of the Indian Penal Code the existence of dishonest intention and inducement is an essential ingredient whereby in this case, it is absolutely absent. The entire communication was made between parties openly and there was no such evidence to show dishonest intention and inducement of property on the part of 3 the petitioner. Both the parties were working as per the agreement enforced upon them and the company was accordingly providing its required assistance for the improvement in the business of de facto complainant. No offence can be made out accordingly under Section 120B of the Indian Penal Code as there had been no such role played by either the company or the petitioner and actions were only taken for the benefit of the growth of the business of the de facto complainant.
It is now well settled principle of law that offence which has civil flavour the Court can quash such mala fide proceeding to secure the ends of justice.
Mr. Banerjee invites my attention to the agreement (clause 1) which provides that the company gives licence of Master Mind Abacus to DMF, Kolkata at their entire risk and responsibility as regard to set up costs, franchisee fee, profit and loss from the operations of the above office and levy of taxes under various laws of land.
It is pertinent to take note of the arbitration clause being clause 41 of the agreement which is to the effect that the agreement shall be construed in accordance with the Arbitration and Conciliation Act, 1996 and any other law in India, the jurisdiction for any dispute between the parties including these relating to the meaning etc. of this agreement will lie only in the courts of Indore (Madhya Pradesh). This should, however, be read in conjunction with arbitration clause of this agreement.
In view of such agreement having been arrived at by and between the parties I do not find any ingredients of offence as alleged against the Opposite Party/ Accused Party.
Be that as it may, it would appear from the order dated 20.12.2018 that this Court called upon both the Magistrates and the learned advocate on record practicing is the court to be alive to the provision of law before making an order of investigation under Section 156(3) of the Code of Criminal Procedure and pursuant to the order sent to the learned Chief Judicial Magistrate, Alipore through the learned Registrar (Administration), High Court, Calcutta a report was submitted by the learned Additional Chief Judicial Magistrate wherefrom it is revealed that for the non-compliance of 4 the parameters for application of Section 156(3) of the Code of Criminal Procedure, the petitioner had sought for dropping the complaint.
Now the report of the learned Additional Chief Judicial Magistrate was called for through the learned Registrar (Administration), High Court Calcutta and the same has been submitted by the learned Registrar (Administration). It appears that the learned Chief Judicial Magistrate has dropped the proceeding on the finding that there was no compliance of Section 156(3) of the Code of Criminal Procedure.
In the context above, the revisional application has become infructuous before this Court and accordingly the revisional application being CRR No. 3409 of 2018 is disposed of.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shivakant Prasad, J.) 5