Calcutta High Court (Appellete Side)
Sharad Kumar Hisaria vs The State Of West Bengal And Another on 28 March, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon'ble Mr. Justice Tarun Kumar Gupta CRR No.82 of 2014 Sharad Kumar Hisaria Versus The State of West Bengal and another For the petitioner: Mr. Pijush Kanti Khanra Mr. Somnath Khanra Mr. Prithviraj Dey For the Private O. P.: Mr. Somopriya Chowdhury Ms. Subhasree Patel For the State: Mr. Amartya Ghosh Judgement on: 28th March, 2014 Tarun Kumar Gupta, J.:-
The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the Act) praying for quashing of criminal proceeding being G.R. Case No.1579 of 2013 arising out of Hare Street Police Station case No.252 of 2013 dated 23.04.2013 under Section 406 I. P. C., pending in the court of learned Chief Metropolitan Magistrate, Kolkata.
It is the case of the petitioner accused that O. P. No.2 Vikash Chowdhury being one of the directors of Venkateshwar Equipment Parts Pvt. Ltd. Lodged a false complaint against the present petitioner being one of the directors of said concern alleging that on 22nd of April, 2013 around 17.30 hours the petitioner had been to the office of their client M/s. Quorum Securities at 29 A. Ballygunge Circular Road for collecting Rs.30,00,000/- (Rupees thirty lakhs) in cash towards the outstanding dues, and that after collecting said amount therefrom he neither deposited the same in the office nor contacted with the complainant director and misappropriate the same. On the basis of said complaint said Hare Street P. S. Case No.252 dated 23.04.2013 under Section 406 I. P. C. was initiated.
Mr. Pijush Kanti Khanra, learned counsel appearing for the petitioner accused, has assailed said FIR under Section 406 I. P. C. on the following grounds.
Firstly, defacto complainant Vikash Chowdhury being one of the directors of the company had no authority to lodge a complaint against another director of the same concern without the necessary authority from the Board of Directors.
Secondly, the complaint if it is accepted on its face value had disclosed allegation of misappropriation of the alleged amount attracting Section 403 I. P. C. and not the offence of commission of criminal breach of trust under Section 406 I. P. C. Thirdly, Section 403 I. P. C. which deals with the offence of dishonest misappropriation of property is a non-cognizable offence as per first schedule of the Criminal Procedure Code.
Fourthly, the police had no authority to start investigation in a non- cognizable offence like one under Section 403 I. P. C. without the order of the concerned magistrate as prescribed under Section 155(2) Cr. P. C. Lastly, the drawing of F.I.R. straightway under Section 406 I. P. C. though without any material was bad in law and that all subsequent proceedings in connection with said F.I.R. were liable to be quashed being bad in law. In this connection he referred the celebrated case of Lalita Kumari vs. Government of U. P. and others wherein the full bench of the Hon'ble Apex Court passed a judgement dated 12th of November, 2013 deciding the issue as to whether "a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short 'the Code') or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same."
Mr. Somopriya Chowdhury appearing for the private O. P. complainant submits that whether the defacto complainant had any authority to lodge said complaint can only be decided during trial and not at this stage. He further submits that the petition of complaint prima facie disclosed an offence of criminal breach of trust though the term "misappropriation" was loosely used therein, and that police did not commit any wrong by registering the case under Section 406 I. P. C. According to him, as police registered commission of cognizable offence under Section 406 I. P. C. there was no question of obtaining any permission from the magistrate under Section 155(2) Cr. P. C. He prays for rejecting this application being misconceived one.
Mr. Amartya Ghosh appearing for the State of West Bengal adopts the submissions of learned counsel for the private O. P. and prays for rejecting this application.
Admittedly, it is apparent from the complaint that there were three directors in said company and that the petitioner accused was one of them. Admittedly, the defacto complainant being one of the directors of said company lodged the complaint against accused petitioner in the police station. Whether the defacto complainant being one of the directors of said company had any authority to lodge a complaint against another director, is a mixed question of law and fact. As such, this question should not be decided at this stage and should be kept open for being decided at the time of trial.
At the time of registering a case by the police, the offence as it appears from the complaint has to be noted. Very often than not, even educated persons do not know particularly under what provisions of law the offence was committed by the accused though they were aware that the accused has committed an offence under the given facts of the case. As such, the statement of the complainant in the complaint should be read as a whole for deciding what offence was disclosed from the allegations of the complaint. If a person receives money which he is bound to account and does not do so, he prima facie commits offence under Section 406 I. P. C. although no precise time can be fixed at which it was his duty to pay over the money. If we take the entire complaint on its face value then it appears that though the word "misappropriate" was used in the complaint but it conveyed the allegation that the accused received the money on behalf of the company and that he was also bound to account for the same but he did not do so within reasonable time. As such, it cannot be said from the totality of the complaint that no offence under Section 406 I. P. C. was disclosed.
As the offence as it was disclosed from the complaint was an offence of criminal breach of trust defined under Section 406 I. P. C. being a cognizable offence, the police had the authority to register the case under Section 406 I. P. C. and then to proceed with the investigation according to law. In the case of Lalita Kumari vs. Govt. of U. P. and Ors. (supra) Hon'ble Apex Court laid down the duties of the police upon receiving of an information relating to commission of a cognizable offence. It also laid down therein that if the information received does not disclose a cognizable offence but undertakes the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
As the sum total of the averments made in the complaint disclosed a cognizable offence under Section 406 I. P. C., the police officer rightly registered the case under Section 406 I. P. C. and started investigation. As it was not a case of registering a non-cognizable offence, there was no question of obtaining any permission from the magistrate under Section 155(2) of the Cr. P. C. for initiation of an investigation.
Accordingly, the revisional application is hereby dismissed. However, I make it clear that this court had no occasion to go into the merit of the case and that all the observations made herein were tentative in nature. The investigating agency as well as the court below should proceed with the case according to law without being influenced by any of the observations made herein.
No costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)