Calcutta High Court (Appellete Side)
Krishna Kumar Bangur vs State Of West Begal & Anr on 27 March, 2008
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 1154 OF 2005
And
C.R.A.N. No. 470 of 2006
And
C.R.A.N. No. 1578 of 2005
Krishna Kumar Bangur
Vs.
State of West Begal & Anr.
For the Petitioner :Mr. Joymalya Bagchi
Mr. Sabyasachi Bandyopadhyay
Mr. Joydip Biswas
For the O.P. No. 2 :Mr. Bhaskar Banerjee,
Mr. Anirban Mitra
HEARD ON: 24.01.2008, 14.02.2008, 05.3.2008, 11.03.2008,
17.3.2008 and 25.03.2008.
JUDGMENT ON:27.03.2008
KALIDAS MUKHERJEE, J.:
1. This application under Section 482 Cr.P.C. has been filed by the accused/petitioner herein praying for quashing of the proceedings in case No. C/10558/04 pending in the Court of learned 11th Metropolitan Magistrate, Calcutta under Section 420 I.P.C.
2. The petition of complaint was filed by M/S. Manor Travels Private Ltd.
being the complainant/O.P. herein against Shri K. K. Bangur of M/S. Graphite India Ltd. i.e. the accused/petitioner herein alleging that the complainant company is a reputed travel company engaged in the business of providing and/or arranging air tickets both in domestic and international to its reputed customers who are mostly the leading companies of the country and high dignitaries like Director and Executives of reputed companies. The company purchase tickets from the different Airlines as per requests of its customers either verbally or in writing and the collection of the price of the said air tickets are made on presentation of bills to the customers at later stage.
M/S. Graphite India Ltd. is a reputed company and was one of the customers who used to purchase air tickets from the complainant company for the Directors and other Executives and there was a running account between M/S. Graphite India Ltd. and the complainant company in respect of the transactions. Another account known as MISC(N) was maintained as the personal account of the accused being the Chairman of the said M/S. Graphite India Ltd. at the relevant period.
The complainant company supplied air tickets of Jet Airways India Ltd. to the accused for travelling from Calcutta to Mumbai for the period 7-8.7.1999 and 16-18.9.1999 and the accused utilized the said air tickets for his own use and benefit and assurance was given at the end of the accused by his the then Private Secretary Mr. Narayan. It appears from the invoices issued by the complainant company to the accused dated 14.09.99 that air tickets from Calcutta to Mumbai were issued to the accused under requisition made by Mr. Narayan, the then Secretary of the accused and it further appears that the accused utilized the said air tickets for his own use and benefit along with his accompanied persons, but no payment was made in respect of Rs.63,894/- from the end of the accused. The complainant company vide letter dated 27.2.2002 brought it to the notice of the accused regarding the said outstanding with a request for making payment, but no payment was made. The complainant company through its lawyer sent notice to the accused dated 28.7.2003 and 14.11.2003, but, the accused tactfully and willfully tried to by-pass the said liability of his own by giving a letter through his lawyer dated 24.12.2003 and denied the liability of Rs.63,894/- and he has tried to club the said liability with another account which was not at all related to the aforesaid amount of Rs.63,894/-. It would be evident from the conduct of the accused that from the very inception he had an intention to deceive the complainant company in respect of the said amount and thereby he is liable to be prosecuted under Section 420 I.P.C.
3. From the order dated 19.01.2005 of the learned Metropolitan Magistrate, 11th Court, Calcutta it appears that after examining the complainant and on perusal of the petition of complaint and original documents, the learned Magistrate held that the prima facie case was made out under Section 420 I.P.C. against the accused and the learned Magistrate was pleased to issue process fixing 10.3.2005 for S/R.
4. The learned Counsel appearing on behalf of the petitioner herein has submitted that the allegation under Section 420 I.P.C. against the petitioner herein does not at all lie, in asmuch as, the alleged transaction of the year 1999 has become time barred in case of a civil suit and to avoid the question of limitation, the complainant/O.P. herein has instituted criminal case against the petitioner herein. It is further contended that from the facts complained of it would be clear that there is no element of dishonest intention from the very inception. The learned Counsel has referred to the letter dated 30.05.2002 issued by the complainant company/O.P. herein to M/S. Graphite India Ltd. wherein it has been stated that Rs.3,64,185/- was the outstanding and excepting that amount there was no other outstanding. Learned Counsel submits that the amount as mentioned in the letter dated 30.5.2002 was paid by the accused/petitioner herein. It is contended that the claim of Rs.63,894/- did not find place in that letter. The learned Counsel appearing for the petitioner herein has referred to and cited decisions reported in 2007(7) SCC 334 [All Cargo Movers (I) Pvt. Ltd. V. Dhanesh Badarmal Jain & Anr.; JT 2007(11) SC 499 [Inder Mohan Goswami & Anr. V. State of Uttaranchal & Ors.]; JT 2007(11) SC 147 [Anil Ritolla @ A. K. Ritolla V. State of Bihar]; JT 2006 (11) SC 133 [Ram Biraji Devi & Anr. V. Umesh Kumar Singh & Anr.]; 2006(2) SCC (Cri) 430 [Murari Lal Gupta V. Gopi Singh]; 2006(1) SCC (Cri) 746 [Anil Mahajan V. Bhor Industries Ltd. & Anr.]; 2005(10)SCC 336 [Uma Shankar Gopalika V. State of Bihar & Anr.]; (2005)7 SCC 69 [Vijaya Rao V. State of Rajasthan & Anr.]; JT 2003 (1) SC 172 [U. Dhar & Anr. V. State of Jharkhand & Anr.]; JT 2003 (1) SC 418 [Ajay Mitra V. State of M.P. & Ors.]; JT 2001 (2) SC 588 [Alpic Finance Ltd. Vs. P. Sadasivan & Anr.]; 1999 SCC (Cri) 91 [Dr. Sharma's Nursing Home V. Delhi Admn. & Ors.]; AIR 1989 SC 2222 [State of U.P. through C.B.I. V. R. K. Srivastava]; AIR 1973 SC 326 [State of Kerala V. A. Pareed Pillai & Anr.]; AIR 1992 SC 604 [State of Haryana V. Ch. Bhajanlal & Ors.]; 1990 Cal Cr. L.R. (Cal) 1 [JTH ZWART & Ors. V. Indrani Mukherjee]; AIR 1974 SC 1560 [Anil Kumar Bose V. State of Bihar]; 2000 Cal.Cr.L.R. (SC) 293 Hridaya Ranjan Pandit Verma & Ors. V. State of Bihar & Anr.]; JT 2007 (4) SC 493 [Thelapalli Raghavaiah V. Stateion House Officer & Ors.]; (2002)1 SCC 241 [S. W. Palanitkar & Ors. V. State of Bihar & Anr.] and 2005 SCC (Cri) 783 [Suresh V. Mahadevappa Shivappa Danannava & Anr.]
5. The learned Counsel appearing on behalf of the O.P./complainant herein submits that the claim of Rs.63,894/- is due from the accused in his personal capacity who was the Chairman of M/S. Graphite India Ltd. under the account MISC(N) and this account was different from the account of the company. It is contended that the letter dated 30.5.2002 relates to the account of the company and not the MISC(N) account of the accused which is in his individual capacity being the Chairman of M/S. Graphite India Ltd. It is contended that the learned Magistrate after going through the complaint and examining the complainant on S/A was pleased to hold that prima facie case was made out and process was issued. It is submitted that the accused being the Chairman of M/S. Graphite India Ltd. utilized the tickets, but, did not pay the fare of the tickets. It is contended that the conduct of the accused was sufficient to prove the dishonest intention from the very beginning. The learned Counsel has referred to and cited the decisions reported in 1988 Cr.LJ 199 [Jumman & Ors. Vs. The State of U.P. and Anr.]; 1995 Cr.L.J. 562 [Uttam V. The State of Maharashtra & Ors.]; 1996 SCC (Cri) 443 [Mushtak Ahmed V. Md. Habibur Rehman Faizi & Ors.]; 1999 SCC Cri. 401 [Rajesh Bajaj V. State NCT of Delhi and Ors.]; 2000 C.Cr.L.R. (Cal) 266 Sahajan Molla V. State and Anr.]; 2003 SCC (Cri.) 1036 [State of A.P. V. M. Poshetty] ; 2000 (1) CHN 795 [Arunangsu Basu Roy Vs. Depak Layalika & Ors.] and 2005 SCC (Cri) 1640 [Mohd. Malek Mondal V. Pranjal Bardalai and Anr.].
6. The learned Counsel appearing on behalf of the O.P./complainant has contended that as the learned Magistrate after finding the prima facie case has issued process against the accused, this Court should not quash the proceedings in the exercise of jurisdiction under Section 482 Cr.P.C.
7. In the decision reported in 1999 SCC Criminal 401 (Supra) it has been held that if averments in the complaint, prima facie, make out a case for investigation, the High Court cannot quash the complaint merely because one or two ingredients of the offence have not been stated in details. The observation of the Hon'ble Apex Court made in para 9 of the aforesaid decision is quoted hereunder:-
"9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details..................."
In the case reported in 2000 C.Cr.L.R. (Cal) 266 in para 11 (Supra) it has been observed by the Hon'ble Single Judge of this Court which is quoted hereunder:-
"11. As already stated the law is well settled that when the petition of complaint and other documents made out a prima facie case against a person, the High Court could not enter into a debatable area as to which of the two versions of the parties is true. It was, therefore, not necessary to make a meticulous and thorough study of a case before trial for finding out whether the petitioner was innocent or not. Upon a consideration of the entire materials on record including the petition of complaint, the statement of the witnesses recorded by the police under section 161 of the Code etc., I am of the view that a strong prima facie case has been made out against the petitioner for committing offences punishable under Sections 498A/304B/120B, I.P.C. There was, therefore, no question of quashing the instant criminal proceeding started against the petitioner and others. Similarly there was no question of quashing the impugned order passed by the learned S.D.J.M., Alipore whereby he accepted the charge-sheet submitted by the police under Section 173 of the Code and took cognizance and issued warrant of arrest against the petitioner and others. In the facts and circumstances of the case I am of the view that the instant criminal revisional application is liable to be dismissed and hence the same is hereby dismissed."
8. The learned Counsel appearing on behalf of the petitioner herein has referred to the decision reported in 2006(2)SCC Cri. 430 paras 1, 2, 6 and 7 (Supra). The observation of the Hon'ble Apex Court in para 6 is quoted hereunder:-
"6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money...................."
In another case reported in 2006(1) SCC Cri. 746 in para 6 (Supra) the observation of the Hon'ble Apex Court is quoted hereunder:-
"6..................Reliance has been placed, in that order, on various decisions of this Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction."
In the decision reported in (2005)10 SCC 376, para 7 (Supra) the observation of the Hon'ble Apex Court is quoted hereunder:-
"7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 Cr.P.C. which it has erroneously refused."
9. In the instant case from the averments made in the petition of complaint and the letter dated 30.5.2002 it appears that there were long standing transactions between the parties and in another account payment was made, but, in the present account i.e. MISC(N) the amount of Rs.63,894/- is still due to be paid by the accused as alleged. It is true that the learned Magistrate at the time of issuing the process must satisfy himself about the existence of prima facie case. But as per the ratio of the decisions cited by the learned Counsels for the parties it is the requirement under the law that the facts complained of must disclose an offence and that there must be dishonest intention on the part of the accused from the very beginning of the transaction. In the instant case the amount of Rs.63,894/- allegedly arising out of the part of the transaction is disputed. But in the petition of complaint there is no specific averment as to how there was dishonest intention on the part of the accused from the very beginning. Mere averment in the complaint that there was dishonest intention on the part of the accused from the very beginning, ipso facto, is not sufficient. The transaction relates to the year 1999 and the petition of complaint was filed in the year 2005. The non-payment of the part of the transaction on a different account as alleged cannot be said to be the dishonest intention from the very beginning of the transaction. The dispute between the parties in the instant case is civil in nature and it does not give rise to any criminal liability. Considering the circumstances aforesaid and having regard to the settled principles of law as discussed above, I find that if the proceedings before the learned Court below are allowed to be continued, it would be the abuse of the process of the Court and it is a fit case to quash the proceedings in the exercise of jurisdiction under Section 482 Cr.P.C. Accordingly, the proceedings in case No. C 10558 of 2004 pending before the learned 11th Metropolitan Magistrate, Calcutta under Section 420 I.P.C. stand quashed. The application under Section 482 Cr.P.C. is allowed.
10. It appears that vide order dated 21.09.2005 CRAN 1578 of 2005 has been disposed of. The other application bearing No. CRAN 470 of 2006 was filed praying for extension of stay order. With the disposal of the revisional application, the CRAN No. 470 of 2006 also stands disposed of.
11. Let a copy of this order be sent to the learned Court below immediately.
12. Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.
( Kalidas Mukherjee, J. )