Calcutta High Court
Anwarul Islam vs The State Of West Bengal on 21 March, 1996
Equivalent citations: (1996)2CALLT19(HC)
JUDGMENT Asish Baran Mukherjee, J.
1. The revisional application has been filed to quash the proceeding being Karaya P.S. Case No. 218 dated 20.9.95 (C.G.R. 3128/95) pending before the Learned Chief Judicial Magistrate, Alipore and arising out of a petition of complaint being C-1297 of 1995 which was sent to the P.S. concerned under Section 156(3) Cr.P.C.
2. The case of the accused petitioner is that the complaint being O.P.No. 2 is the senior partner of M/s. Islam & Associates, Calcutta, the other partners being accused No. 1 & 2 by virtue of a partnership deed dated 1.4.88. It has been alleged that the said firm received a contract from M/s. Larsen & Toubro Ltd. for work of a chimney at Tenughat Thermal Power Station, Giridi. Pursuant to the discussion dated 16.1.93, the partners of the said firm placed a number of orders for supply of various materials on different manufacturers and engaged M/s. United Engineering Works of Begusarai at Bihar as subcontractor to look after the labour part of the job. One syed. Julfikar All of Calcutta Office was sent to Tenughat for keeping accounts of payments and expenses at the site. It has been alleged that the accused have misappropriated Rs. 15 lacs and as such the functioning of the firm became impossible pursuant to a conspiracy entered into and between the accused persons on 8.8.94 when the complaint wrote to the O.C. Karaya, P.S. on 9.9.95. As no action was taken, the petition of complaint was filed under Section 156(3) Cr.P.C which was sent to the O.C. Karaya P.S. for investigation.
3. It is alleged that the dispute arising between the parties is absolutely of civil nature between the partners and it has been given the colour of a criminal offence for the purpose of wrecking vengence on the part of one partner against the other. It is alleged that the same facts cannot give rise two offences of cheating as well of criminal breach of trust. There is also no allegation of cheating averred in the four corners of the complaint. It is alleged that date of alleged conspiracy is 8.8.94 and F.I.R. was made more than a year thereafter. In terms of Clause 26 of the partnership deed, dispute arising between the partners are required to be referred to the arbitrators and as such the instant criminal case is not maintainable.
4. O.P.No. 1, The State has not entered appearance but the revlsional application is being contested by the defacto complainant of the criminal case who is O.P.No. 2 in the revisional application.
5. The learned advocate appearing for the petitioner has referred to the petition of complaint under Section 156(3) Cr.P.C. from para 6 onwords. It has been argued that the learned Magistrate before whom the application under Section 156(3) Cr.P.C. was filled applied his mind so much so that he must be deemed to have taken cognizance of the alleged offence under Section 190(1a) Cr.P.C. and as such it was incumbent for him to have recourse to Section 200 Cr.P.C. and the provision laid down thereafter. It has been argued that after application of mind necessary for taking cognizance of an offence the learned, Magistrate has no jurisdiction to send the same to P.S. for treating the same as F.I.R. and to investigate according to law.
6. The learned Advocate also drew my attention to para 6 of the petition of complaint and argued that in terms of the averment it can at best be stated that subcontractor was appointed by some of the accused persons without consent of the other partners. It is argued that such appointment even if, it be by way of breach of the agreement as contained in the partnership deed cannot form the basis of or a criminal action.
7. My attention has also been invited to para-9 of the petition of complaint where it has been staled that the complaint earlier submitted a complaint in writing to O.C., Karaya P.S. along with the xerox copies of some documents and correspondence after collecting those documents from the records of M/S. Larsen & Toubro Ltd. disclosing commissions of cognizable offences with a view to start a case against them by treating the same complaint as F.I.R. It has also been stated as no case was started by O.C., Karaya P.S., he filed a second complaint before the learned C.J.M., which as sent to the Police Station for treating the same as F.I.R. From this, it has been argued that once an information containing commission of cognizable offence is made to the P.S. second complaint on the self-same facts is not tenable in law. It has also been argued that at the time of filling the second complaint, xerox copies of the said documents stated to have formed part of the earlier F.I.R were not incorporated. It is submitted that in the absence of said copies the petition of complaint filled before the Magistrate does not disclose commission of any cognizable offence and as such the said petition cannot form the basis of an F.I.R.
8. The learned Advocate has also drawn my attention to para-16 of the deed of agreement where it has been specially mentioned that management and control of the partnership business shall vest in the partners jointly as well severally and for that purpose all or any of them shall be entitled to sign the name of the firm on all contracts, bills etc. and each other documents and papers which are required to be signed on behalf of the firm. From this it has been argued that signing of bill by one of the partners can be of no offence.
9. It has been argued that in case any of the partners violate the terms of the partnership agreement, Section 406 I.P.C. cannot,come in. It has also been argued that element of cheating is wanting even on a superficial scrutiny of the petition of complaint.
10. On the other hand, it has been argued for O.P.No. 2 that quashing of F.I.R. arises only when an F.I.R. is made without any jurisdiction. It is submitted that the first F.I.R. cannot be treated as such since no case was started over the same. It has also been argued that there is nothing wrong or illegal in the order passed by the learned Magistrate on the petition of complaint. It is however, conceeded that Section 406 I.P.C. cannot be invoked by a partner against another partner but at the same time it has been argued that in the category of accused, there are persons who are not partners. It has been argued for the O.P. that the initial order passed on the revisional application by this Court on 27.9.90 should govern to final disposal of the said revisional application. My attention has been drawn to that part of the order where it has been stated that the dispute is in respect of partnership assets and there is an Arbitration Clause in the partnership deed. Thereafter, a Rule was issued.
11. I have given my careful consideration to the submissions of both the sides and I propose to dispose of the objections one by one.
12. From para-9 of petition of complaint, there is a clear averment that the earlier complaint which was started by xerox copies of documents and correspondence revealed the self-same offences as has been staled in the subsequent complaint. There is also the averment that the said petition was actually received at the Police Station. Obviously, in such a case it is incumbent for the Police authority to draw an F.I.R. in terms of the complaint. In the event of omissions the remedy does not lie by way of filing a second application for treating the same as F.I.R. but the remedy is to move the Court concerned by way of drawing up the attention of the Court and praying for obtaining report from the P.S. concerned about the action taken on the F.I.R. And F.I.R. as the names suggests is information of the commission of an offence, first in point of time and as such once a complaint alleging commission of cognizable offence is made to the P.S., a second complaint on the self-same application is not tenable under the law. Therefore, any case started on the basis of the said second complaint cannot be said to have been started in accordance with law and as such, such acceptance of the F.I.R. is without jurisdiction and consequently, the investigation carried on its basis can not be allowed to proceed being an abuse of process of the Court.
13. A scrutiny of order passed by the learned C.J.M., on 15.9.95 on the second complaint clearly reveals that the learned Magistrate not only perused the petition of complaint itself, he is bound to do even if he wants to send the same to P.S. under Section 156(3) Cr.P.C. He also heard the learned Advocate and also gave his consideration over the matter following which he sent the same to the P.S. This is In my opinion amount to taking of cognizance under Section 190(1a) Cr.P.C. and as such it was incumbent for the learned Magistrate to proceed in accordance with the Section 200 Cr.P.C. and subsequent sections before a process could be issued under Section 204 Cr.P.C.
A scrutiny of the deed of partnership clearly reveals that there was an Arbitration Clause in the event of one partner committed an act contrary to the provisions of the deed of partnership and as such, such an act on the part of one partner cannot form the basis of an offence. So far as, signing of the bill is concerned the deed actually authorises to one partner to act on behalf of the firm.
A scrutiny of the petition of complaint also reveals that there are no element of Section 420 I.P.C. pleaded there even if the petition of complaint is taken on its face value. So far as, Section 406 I.P.C. is concerned, it is conceeded that since the alleged violation has been committed by one partner there cannot an offence under the said section.
Therefore, on consideration of the entire materials on record I come to the conclusion that the F.I.R. give the raise to Karaya P.S. Case No. 218 dated 20.9.95 is not legally tenable and as the investigation started on its basis cannot also proceed. In the result the impugned F.I.R. as also the investigation started on its basis is quashed. The revisional application stands allowed.