Calcutta High Court (Appellete Side)
Narendra Kumar Surana vs State Of West Bengal & Anr on 21 May, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Subhasis Dasgupta.
CRR No. 3561 of 2018
Narendra Kumar Surana
Vs
State of West Bengal & Anr.
For the petitioner : Mr. Kaushik Chatterjee, Adv.
Mr. L. Vishal Kumar, Adv.
Mr. Tirthankar Dey, Adv.
For the O.P No.2 : Mr. Pratip Mukherjee, Adv.
Mr. Amarnath Agarwa, Adv.
Mr. Ranjit Kumar Balmiki, Adv.
For the State : Mr. Binoy Kumar Panda, Adv.
Ms. Puspita Saha, Adv.
For Judgment : 21.05.2019
Subhasis Dasgupta, J:-
This is an application under Section 482 of the Code of Criminal Procedure
praying for quashing of proceeding being G.R. Case No. 1228/2012 pending
before the Court of the learned Metropolitan Magistrate, 16th Court, Calcutta
arising our of Burrabazar Police Station Case No. 186/12 dated 30.04.2012
under Section 420 of the Indian Penal Code with all orders passed therein
inclusive of order dated 17.11.18 rejecting the prayer for discharge.
The opposite party No.2 Hemraj Bengani/ de facto complainant submitted
a petition of complaint under Section 156(3) Cr.P.C. to Court against petitioner
Surendra Kumar Surana and his brother, who run a partnership business of
"Jute Supplier" in the name and style of M/s Surendra Commercial Syndicate,
alleging commission of offence under Section 420 IPC. The
complainant/opposite party No.2 runs a business of "commission agent". The
complainant's family comprised of himself, his wife, and a daughter, who is now
perusing her higher study in foreign country. Admittedly complainant/opposite
party maintained a good relationship with petitioner/accused and his brother
giving valuable help and advice for management and marketing of the Jute
business for betterment and enhancement. It was alleged that taking advantage
of such good relationship, petitioner accused and his brother approached
complainant for financial assistance agreeing to repay the amount given as loan
on demand. Thus on 13.02.10 and 21.09.10 the complainant/opposite party lent
money in the form of financial assistance amounting to Rs.7,50,000/- lakh
(6,50,000 + 1,00,000/-). Subsequently the petitioner/accused and his brother,
who has been sought to be discharged ultimately after police investigation,
returned back Rs.1,50,000/- to complainant to winover as confidence.
Thereafter again Rs.2,50,000/- were given to petitioner and his brother on
01.03.11 and 26.04.11. Likewise the payment made on 25.10.10, the petitioner
accused again repaid Rs.2,00,000/- to complainant/opposite party on 3rd June,
2011. Thus in the process the petitioner took away a sum of Rs.9,00,000/- from
the wife of the complainant/opposite party, other than the amount already taken
as loan.
In was further alleged that on the pretext of treatment of family members of
accused persons, the petitioner even approached the daughter of
complainant/opposite party, Miss Priti Bengani, presently perusing her higher
study in Amarica, and thus managed to obtain Rs.13,00,000/- from her own
account for undertaking treatment of family members. The specific allegation
levelled against the petitioner and his brother is that on different dates, and on
different pretext, the petitioner/accused and his brother together fraudulently
obtained a huge amount totalling to Rs.30,00,000/- from complainant/opposite
party's family members taking advantage of their good relationship. When
complainant/opposite party visited the office of petitioner/accused on 11.11.11,
the amount taken, as loan was flatly denied giving a surprise to
complainant/opposite party. The petitioner/accused thus even denied to have
taken any amount as loan at any point of time from the complainant/opposite
party. The complainant/opposite party then went to Burrabazar Police Station to
lodge complaint by narrating the aforesaid facts. As the police did not respond to
his allegation by taking any appropriate action against the petitioner and his
brother, the petition of complaint was straightway submitted to Court with a
prayer for investigation treating the petition of complaint as FIR. It was
contended in such complaint that by reason of the exercise of fraudulent
intention on the part of the petitioner /accused and his brother, the complaint
was induced to pay a sum of Rs.30,00,000/- as loan on different pleas to
petitioner/accused believing upon the state and extent of representation of the
accused persons. On the basis of the complaint, police held investigation and
submitted chargesheet under Section 420 IPC against petitioner/accused with a
prayer for discharge as against the brother of the petitioner, namely Surendra
Kumar Surana for want of evidence being collected against him.
Mr. Kaushik Chatterjee, learned advocate for the petitioner submitted that
the petition of complaint forwarded to police for investigation under Section
156(3) Cr.P.C. for investigation after treating the petition of complaint as FIR did
not make out any cognizable offence, as there could not be any order of
investigation without commission of any cognizable offence being disclosed in the
complaint petition itself. The learned Magistrate while issuing direction for
investigation failed to ensure mandatory compliance, required to be made in view
of enunciation of the law laid down in the of Priyanka srivastava and Anr. vs.
State of Uttar Pradesh and Ors. delivered in the case of (2015) 6 SCC 287 .
In the decision referred above the approach of the Magistrate, while exercising
power under Section 156(3) Cr.P.C. was specifically considered and some of the
pre-conditions were expounded to be necessarily satisfied before exercising such
power available under Section 156(3) Cr.P.C. to Magistrate. The requirements
and the approach of the Magistrate were subject mater of consideration and
when the Apex Court decided laying down the following proposition of law
contained in para 31 of such decision, which may be mentioned as hereunder
31. We have already indicated that there has to be prior applications
under Section 154(1) and 154(3) while filing a petition under Section 156(3).
Both the aspects should be clearly spelt out in the application and necessary
documents to that effect shall be filed. The warrant for giving a direction that
an application under Section 156(3) be supported by an affidavit so that the
person making the application should be conscious and also endeavour to
see that no false affidavit is made. It is because once an affidavit is found to
be false, he will be liable for prosecution in accordance with law. This will
deter him to casually invoke the authority of the Magistrate under Section
156(3). That apart, we have already stated that the veracity of the same can
also be verified by the learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption cases and the cases where
there is abnormal delay/laches in initiating criminal prosecution, as are
illustrated in Lalita Kumari are being filed. That apart, the learned
Magistrate would also be aware of the delay in lodging of the FIR.
In the light of such enunciation, it was held obligatory that before referring
application 156(3) Cr.P.C. to police for investigation, the Magistrate has to make
an inquiry in order to ascertain, if the complainant already complied the
provisions of Section 154(1) and 154(3) previously, and for non-availability of
desirable action, a petition of complaint has been irresistibly filed to court under
Section 156(3) Cr.P.C. alleging police inaction for the purpose. An averment thus
necessarily has to be incorporated for the purpose of showing previous adherence
to the provisions laid down in Sections 154(1) and 154(3) Cr.P.C. The de facto
complainant was further under obligation to swear an affidavit stating all such
compliance of the provisions of the law.
It was argued that a Coordinate Bench of this Court in the case of
Parameswar Ghoshal and Ors. vs. The State of West Bengal and anr. (CRR
No. 3251 of 2017) after applying the proposition of law, as laid down in the case
of Priyanka srivastava and Anr(supra) observed that the learned Magistrate
has to remain vigilant with regard to allegations made and the nature of the
allegations and not to issue direction without proper application of mind. It was
thus considered that in a proper and appropriate case when referring the matter
to police for investigations under Section 156(3) Cr.P.C. would be conducive to
justice, only in that case the learned Magistrate was provided with the authority
to exercise his power under Section 156(3) Cr.P.C.. Regarding the approach of
the Magistrate, while exercising the power under Section 156(3) Cr.P.C., it is no
longer res intraga that an attitude of more care, being more sincere, serious
cautious and more circumspection were expected to be made, while exercising
such power by Magistrate under Section 156(3) Cr.P.C., learned advocate for
petitioner emphatically submitted.
Learned advocate for the complainant/opposite party Mr. Pratip Mukherjee
in reply submitted that sufficient reference was made in the petition of complaint
itself under Section 156(3) Cr.P.C. that complainant/opposite party had been to
police station, and narrated the entire allegations with a high hope for taking
appropriate action against the miscreants, but the police preferred to remain
silent without taking any action, as contemplated. The averments contained in
the petition of complaint, according to learned advocate for the opposite
party/complainant, assumed such a dimension because of its seriousness, that a
police investigation called for and without which nothing could be successfully
established, and upon consideration of which, the learned Magistrate proceeded
to exercise his jurisdiction under Section 156(3) Cr.P.C. by forwarding the same
to police for investigation. It was also contended by the complainant/opposite
party that not only the complainant approached the police station for redressing
his grievance, but complainant also submitted a complaint, addressed to Joint
Commissioner of Police (Crime) Lal Bazar, Kolkata narrating the entire incident,
which was duly received on 09.04.12, and adverting to such document, it was
proposed that there had been sufficient compliance done by the complainant
before resorting to action available under Section 156(3) Cr.P.C..
The further case of the petitioner proposing for quashment is that the
petitioner had already paid off 15,50,000/- as against the outstanding dues,
which was confirmed by the bank statement, dated 11.11.13, issued by the
Corporation Bank showing encashment of different cheques, which was passed
on 1st June, 2012, 2nd June, 2012, 4th June, 2012 and 6th June, 2012
respectively. The dispute between the parties, according to petitioner, was
amicably settled because of the intervention of the local people and particularly
the Marawari Samaj, in which both the parties to this case belonged. The
petitioner/accused was enlarged on bail by ACJM Calcutta upon considering the
fact of having settled the dispute between the parties and when the complainant
himself admitted the same remaining present in court.
Taking note of such amicable settlement, de facto complainant himself filed
a petition before the Court on 29.12.04 with a prayer for recording the case to
have settled amicably in order to bring down the curtain to the dispute, which
already stood at rest. The application was directed to be kept on record by the
learned Magistrate, but the same could not be disposed of in accordance with
law. Though the earlier appliction dated 29.12.04 was not disposed of, but again
the petitioner/accused filed another petition dated 09.02.15 intimating that the
parties had put quietus to the dispute expressing his disinclination form
proceeding further with the instant case.
The court below by order dated 10.02.15 rejected such petition dated
09.02.15 holding that the offence complained of was not compoundable one. In
the absence of any application praying for withdrawal under Section 321 Cr.P.C.
being initiated from the side of prosecution, as the instant case prosecution was
conducted by State, the withdrawal was rejected.
Emphasising much upon the fact of amicable settlement of the monetary
dispute between the parties together with liquidation of substantial/major part of
the loan amount by the petitioner/accused to complainant in the mean time, it
was proposed by petitioner that the dispute could be at best regarded to be civil
one for recovery of the balance payment, and such revealing aspect escaped the
notice of the investigating officer as well as the learned Magistrate, while taking
cognizance of the offence.
Learned advocate for the petitioner further submitted that admittedly
advance was taken in instalments as loan on different dates, and refunded the
major part thereof of the loan amount, which was ratified by the bank statement
issued by the Corporation Bank to complainant, and in such state of affairs,
there could not be any prosecution under Section 420 IPC, as alleged, because
the very essence of the offence being an element of deception and fraudulent
intention remaining very much absent at the time when the money was lent as
loan. Reliance was placed accordingly by learned advocate for the petitioner on
this issue to a decision reported in 2011(2) Cal CriLR 757 delivered in the case
of Soumen Dey vs. State of West Bengal wherein and whereunder it was
decided that there could not be any prosecution under Section 420 IPC for
recovery of balance payment, which at best could be regarded as a purely civil
dispute, and the proceedings under Section 420/340 IPC was quashed holding
that such a proceeding, if allowed to be continued any more, will lead to a grave
miscarriage of justice indulging unscrupulous litigant to use criminal court as an
engine of oppression for quicker reliefs and early settlement of civil dispute.
Further reliance was placed by learned advocate for the petitioner to an
unreported judgement rendered by Co-ordinate Bench of this court in the case of
Gouri Shankar Rajgarhia vs. The State of West Bengal and Anr. (CRR No.
2320 of 2008) wherein and whereunder a proceeding under Section 420 IPC
was quashed in a case for failure to keep up promise. In that case a considerable
portion of the claimed amount was refunded together with interest, which was
paid for considerable period and upon consideration of which in the given set of
facts and circumstances of that case, the Court held that failure to keep up
promise at best would make out a case of civil dispute, but it would not make out
any case of initial deception, which is considered as one of basic ingredients of
offence of cheating.
Argument was raised by the petitioner that the very basis of initiation of
instant prosecution was to recover the balance money, if there be any, which was
sufficiently revealed from the averments contained in the petition under Section
156(3) Cr.P.C., and such being the nature of the dispute, the entire matter purely
directed to civil jurisdiction, for want of prima facie case having been made out
revealing commission of offence under Section 420 IPC, even if the allegations
contained in the complaint were to be taken on their face value and in its
entirety. Shelter was sought to be taken by the petitioner on such issue to a
decision reported in 2018 (13) SCC 374 delivered in the case of Medmeme, LLC
and Ors vs. Ihorse BPO Solutions Private Limited wherein an agreement was
entered into between the parties for utilising the service of the respondent
company having software development skill as well professional services capabilities. Subsequently the working relationship between them was disturbed for inadequate service having rendered for allegedly committing breach of the terms of the agreement, and according to appellant company for such rendering of appropriate services of the respondent company, the appellant company suffered losses. In such case, substantial amounts were paid by the appellants to the respondent company for the services already rendered. The centre of dispute in such case was for making the entire payments for the services rendered to the appellants, which the Apex Court described the same to be a matter of civil jurisdiction. It was also held that there was no initial intention on the part of the appellant to cheat the respondent.
Learned advocate for the petitioner in support of the proposed quashment of the pending proceeding most ardently submitted that for mere failure to keep up the promise, even presence of dishonest intention at a subsequent stage, offence of cheating could not be said to have been made out, because the moment when the money was lent as advance, there was no fraudulent or dishonest intention existing at the very beginning of promise. Attempt was made by the learned advocate for the petitioner to derive capital from decision reported in 2000(4) SCC 168 delivered in the case of Hridayaranjan Prasad Verma and Ors. vs. State of Bihar and Anr. and (2005) 10 SCC 228 rendered in the case of Anil Mahajan vs. Bhor Industries Ltd. and Anr. According to petitioner, the intention being the gist of the offence, such intention of the accused must exist at the time of making promise/inducement, which ought not be presumed from a subsequent conduct, being such subsequent conduct is not the sole test for determination of required intention. It was thus proposed by the petitioner that to hold a person guilty of cheating, the fraudulent or dishonest intention of the accused making the promise must have been there at the beginning, without which there can be any offence under Section 420 IPC.
By referring such authorities, as mentioned hereinabove, the learned advocate for the petitioner persuaded the court to believe that the required fraudulent intention, what is the gist of the offence, was conspicuously absent, when the money taken as loan was obtained on different dates.
That the averments contained in the petition under Section 156(3) Cr.P.C. made out essentially a case based on failure to keep up promise, and also for occurrence of a civil dispute for failure to make the balance payment, learned advocate for petitioner upon interpreting the prosecution case in the way as discussed hereinabove, sought for quashment of the instant proceeding relying upon decision reported in 1992 Supp (1) SCC 335 delivered in case of State of Haryana and Ors. vs. Bhajan Lal and Ors. urging further that the allegations directed in the instant proceeding of complaint are akin to the illustrative cases, set out at para 102 of such decision, which may be mentioned as herein.
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent power under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Submission was raised further for the petitioner that in any criminal case, the conduct of the parties though not determinative alone, but relevant significantly for the determination of the offence. It was proposed accordingly by the petitioner that upon taking such conduct of the adversary, the Apex Court quashed the criminal prosecution initiated against her husband being an outcome of matrimonial differences between the parties. Reliance was accordingly placed on decisions reported in 2005(3) SCC 299 rendered in the case of Ruchi Agarwal vs. Amit Kumar Agrawal and Ors. and (2005) 3 SCC 302 delivered in the case of Modh. Shamim and Ors. vs. Nahid Begum (Smt) and Anr. In both the cases the Apex Court considered the conduct of the wife after a settlement/compromise was effected between them, and when the wife wanted to back out giving a go by to the terms of the settlement/compromise. The terms of the settlement though accepted initially by the wife and enjoyed the relief available thereunder, but subsequently started retreating with a view to harass her spouse(husband). The conduct of the wife, as subsequently reflected, was discouraged and the criminal proceedings initiated at the instance of the wife was directed to be quashed. By referring such decisions learned advocate for the petitioner wanted, to draw an inference in this case, showing the resemblance of the conduct of wife with the conduct of the complainant, and described the conduct of complainant to harassive, because not only once, but twice, complainant filed compromise petition stating amicable settlement between the parties, and further the complainant in the mean time realised a considerable portion of the amount taken as loan given in phase manner to petitioner/accused. Taking such grounds, petitioner proposed for quashment of the instant proceedings.
Learned advocate Mr. Panda appearing for the State producing the copy of the materials collected in the CD submitted that petitioner proposing quashment induced the complainant to invest money in his firm dealing with the Jute assuring an exorbitant return, and thus being induced/allured by such false representation, the complainant paid an amount of Rs.30,00,000/-, but the accused person did not return the whole amount. It was argued by the State that during the course of investigation, it came to be ascertained that petitioner had received USD worth of 27,980 from the daughter of complainant as an advance against export of Jute, which was credited in the account of the petitioner maintained at Corporation Bank on 26.11.10. The moment when the advance was credited by the daughter of the complainant against export of Jute at the instance of the petitioner accused, he had no Exporter Code which was subsequently collected on 20.12.11. According to State/opposite party whenever an exporter receiving advance payment from a buyer outside India, he shall be under an obligation to ensure the shipment of goods within one year of the date of the receipt of advance payment. Thus the investigation revealed that the accused/petitioner neither exported the goods, nor returned the said amount within the time limit, as per information furnished by Reserve Bank of India, which according to learned advocate for the State constituted sufficient evidence transpiring fraudulent intention, necessary for the purpose.
According to learned advocate Mr. Pratip Mukherjee for the complainant/opposite party, the moment when the petitioner took advance as loan on different dates, he presented himself as exporter having relevant document for the purpose. It was the misrepresentation/inducement by reason of exercise of dishonest criminal intention, which lead the complainant to hand over money to petitioner as advance. Thus according to complainant, his daughter also fell victim in this case, as on such inducement of the petitioner/accused, USD worth of 27980 was credited to the account of petitioner/accused maintained in Corporation Bank on 26.11.10 as advance against export of Jute, though on the relevant date, the petitioner/accused had no relevant Exporter Code, which he subsequently collected on 20.12.11, and if such conduct of the petitioner/accused was perfectly appreciated in terms of the law, the one and inevitable conclusion would be that it was the fraudulent intention on the part of the petitioner which prompted the complainant to hand over the money in consequence of misrepresentation of fact, as presented by the petitioner to serve out his colourful intention at the time of making promise. The letter dated 28..02.14 submitted by petitioner, addressed to Assistant General Manager, Foreign Exchange Department, Corporation Bank, Kolkata, wherein the petitioner sought permission to remit USD 28,000 to the daughter of the complainant, and the letter dated 20th March, 2014 issued by Reserve Bank of India, addressed to the Assistant General Manager Corporation Bank, Kolkata, intimating that the money taken as advance against export from foreign buyer, might be remitted through Corporation Bank itself, and action was stressed to be taken so that money due could be immediately remitted, failure of which would entail a penal consequence under the Foreign Exchange Management Act, 1999 ( for the short the FEMA Act), were brought to the notice of the court in course of hearing of this case by the learned advocate for the complainant/opposite party and adverting to such letters, it was proposed that the conduct of the petitioner was sufficient enough to reveal the dishonest intention on his part, while receiving the money from complainant in a phase manner.
Learned advocate for the opposite party further contended that when chargesheet had been submitted making out a prima facie case, the required culpable intention on the part of the petitioner could not be effectively ascertained without entering into trial. Thus having regard to the materials already collected in the CD, the complainant/opposite party submitted in unison with the learned advocate for the State that power available under Section 482 Cr.P.C. should not be exercised in this case in order to quash the proceedings.
The only point requiring decision in this case is whether in the given set of facts quashing, as proposed by petitioner, is entertainable simply to prevent abuse of the process of court or not.
In the case under reference after going through the petition of complaint under Section 156(3) Cr.P.C., it appears that there was absolutely no averment contained in such application showing previous compliance of the provisions incorporated in Section 154(1) and 154(3) of the Code of Criminal Procedure before resorting to action available under Section 156(3) Cr.P.C.. Nothing is available from the order dated 27.04.12 passed by the learned Additional Chief Metropolitan Magistrate Calcutta that the complaint petition was supported by any affidavit for the purpose.
Admittedly the petition of complaint under Section 156(3) Cr.P.C. was filed on 27th March, 2012. The complaint addressed to Joint Commissioner of Police (Crime) Lal Bazar, Kolkata goes to show that it was made on 09.04.12 that is long before submission of complaint to Court. Though in the petition of complaint under Section 156(3) Cr.P.C. nothing was conspicuously mentioned as to the date when complainant had been to Burrabazar Police Station for alleging the incident, but the same should not be faulted with for absence of relevant averment in the complaint petition itself together with a supporting affidavit for the purpose, because reference was there in the complaint petition al least that earlier complainant approached the concerned police station to avail of his desired remedy which, however, could not be extended to by the police. In that view of the matter the allegations of not making any prior compliance of the provisions of law under Sections 154(1) and 154(3) Cr.P.C. as a condition precedent to the exercise of power available under Section 156(3) Cr.P.C. is without any substance.
The situation as it stands is very significant to reveal that in course of investigation police gathered materials revealing that petitioner/accused even received USD 27,980 from the daughter of the complainant, as advance against export of jute, though the petitioner accused had no relevant documents inclusive of Exporter Code, which he subsequently gathered on 20.12.11. There are documents to reveal that subsequent to the initiation of this complaint under Section 156(3) Cr.P.C., the complainant/opposite party received as many as 15,50,000/- within a period from 1st June, 2012 to 6th June, 2012 ,which stood ratified from the bank statement, dated 11.11.13, issued by Corporation Bank given in favour of petitioner/accused. The averments contained in the petition of complaint unerringly left materials that as against the outstanding dues taken as loan, some of the amounts had already been paid off to complainant. The fact of amicable settlement that surfaced between them over the liquidation of the outstanding dues was even disclosed by the complainant himself, when the bail petition was considered by the learned court below. The complainant himself stood on dock while admitting amicable settlement of their monetary dispute. Such amicable settlement was subsequently attempted to be legalised by filing application twice, but the same could not be considered for the offence, complained of being not compoundable.
The averments contained in the petition under Section 156(3) Cr.P.C. significantly directed a simplicitor case of denial of money, taken as loan in a phase manner from the complainant to ensure betterment and/or augmentation of the Jute business, run by the petitioner/accused. Admittedly no agreement was entered into between the parties. The money, taken as loan, was given on being verbally requested by the petitioner accused. There left nothing in the petition of complaint itself that petitioner/accused failed to pay back the money, which he had received in his bank on 26.11.10, as advance against export from the daughter of the complainant, and in spite of receiving such amount the petitioner did not subsequently either export the Jute, or remit the money back to the foreign buyer, being daughter of the complainant, causing violation of FEMA Act, 1999. It was the investigation, which revealed the same. Letter of he RBI dated March, 2014, addressed to Corporation Bank in which USD 27,980 was credited, significantly revealed that failure to remit the money back to the foreign buyer immediately or within the time provided under the rules would entail penal action under The Foreign Exchange Management Act (FEMA, 1999). In view of the provisions contained in the Foreign Exchange Management Act 1999 adjudicating authority authorised under Sub-Section 1 of Section 16 of the Act, upon receipt of complaint alleging contravention of the provisions of the Act, will hold an inquiry exercising the power of civil court for ascertaining the veracity of the complaint and determine the issue thereunder in terms of the provisions contained under the Act. It was for the first time revealed in the investigation contradicting statement contained in the FIR that money taken as loan was given for business purpose, which remained strategically suppressed for the reasons best known to the complainant.
As has already discussed that during the continuance of the proceedings, a considerable portion of the money, taken as loan, had already been liquidated towards the recovery of the balance payment, so the instant prosecution, which is purely civil one in nature will no at all be encouraging. The moment when money was taken as loan for the augmentation of business, the required criminal intention, which is the gist of the offence was conspicuously found absent as the required criminal intention cannot be derived from a case when admittedly the petitioner paid back some of the money taken as loan, and even during the subsequent stage revealing payment of considerable portion of the money, said to have been cheated. To hold a person guilty of cheating, it is necessary to establish that he had fraudulent or dishonest intention at the time of making the promise, without which the conduct of the person cannot be branded to be a cheating. Materials collected during the course of investigation together with the averments contained in the petition under Section 156(3) Cr.P.C sufficiently demonstrated that petitioner/accused made failure, though deliberately to keep up promise and failure to keep up promise subsequently i.e. at the later stage, would not itself reveal the culpable intention right at the beginning, that is when the money was taken as loan, and such initial dishonest intention even cannot be presumed from the post or subsequent conduct of the petitioner accused. The subsequent conduct in the given set of facts is not the sole test, the sole test being presence of dishonest intention on the part of the petitioner/accused, when the money was obtained, without which the criminal prosecution under Section 420 IPC is without the sanction of law. Even presence of criminal intention at a later stage of transaction would not itself complete the offence of cheating, because it was initially absent at the time of making promise.
Upon consideration of the rival submissions of the parties, the court is of the view that the dispute having been primarily to be of civil in nature, by reason of failure to keep up the promise leading to recovery of balance payment, there would be an abuse of the process of the court, if the instant proceedings is allowed to be continued any more.
This would not, however, preclude initiation of appropriate proceedings against the petitioner for causing violation of provisions of the FEMA Act, 1999, if there by any. The court makes it clear that, if any proceeding is taken out for violation of the provision of the FEMA Act, 1999 for the alleged contraventions of the Foreign Exchange Management (export of goods and services) Regulations 2015 and Foreign Exchange management (Manner of Receipt and Payment) Regulations, 2016, that would be independently decided by the competent authority set out in the FEMA Act, 1999 irrespective of the consequence of the instant proceeding.
The instant proceeding being G.R. Case No. 1228/2012 pending before the Court of the learned Metropolitan Magistrate, 16th Court, Calcutta arising out of Burrabazar Police Station Case No. 186/12 dated 30.04.2012 under Section 420 of the Indian Penal Code is thus quashed.
The Revisional Application deserves succeeds.
Petitioner is directed to make communication of this order to the learned court below for information.
With this observation and direction, the revisional application stands disposed of.
Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)