Calcutta High Court (Appellete Side)
Mr. Krishna Murari Choudhary vs The State Of West Bengal on 3 December, 2018
Author: Asha Arora
Bench: Asha Arora
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Asha Arora
C.R.R 237 of 2017
Mr. Krishna Murari Choudhary
........Petitioner
Versus
1. The State of West Bengal
2. K.K. Polycolor Asia Ltd
......... Opposite Parties
For the Petitioner : Mr. Pawan Gupta, advocate
Ms. Sofia Nesan, advocate
Mr. Santanu Sett, advocate
For the Opposite
Party no. 2 : Mr. Tirthankar Ghosh, senior advocate
Mr. Satadru Lahiri, advocate
Mr. Raj Kumar Lahoti, advocate
Hearing concluded on : 27/11/2018
Judgment on : 3rd December, 2018.
Asha Arora, J.:
By the instant application petitioner has assailed the order dated 21/12/2016 passed by the learned Metropolitan Magistrate, 19th Court Calcutta in C.S. No. 0081448 of 2016 corresponding to F. No. 191703 of 2016 in connection with T.R. No. 6864 of 2016 under sections 420/406/120B of the Indian Penal Code whereby process was issued against the petitioner and the other co-accused. The impugned proceeding is sought to be quashed qua the petitioner.
The factual backdrop of the matter in brief is as follows:
On 6/5/2016 the opposite party No. 2 herein filed a petition of complaint before the Chief Metropolitan Magistrate Calcutta against the present petitioner and three others alleging commission of offences punishable under sections 420/406/120B. After taking cognizance, the Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate 19th Court for enquiry and disposal. On 1/7/2016 the learned Magistrate examined the complainant and his witness under section 200 of the Code of Criminal Procedure and after considering their statement on solemn affirmation as well as the documents on record, directed an enquiry into the matter under section 202 CrPC by the Officer-in-Charge of the concerned P.S.. Not being satisfied with the police report under section 202 CrPC, the learned Magistrate posted the matter for "further S/A" on 21/12/2016. On the aforesaid date the complainant and the other witness were "further examined on S/A" and upon considering their statement as well as the documents placed on record, the learned Magistrate was of the view that a prima facie case under sections 420/406/120B IPC was made out against the accused persons and accordingly issued process against them. According to the petition of complaint, the complainant K.K. Polycolor Asia Ltd. is a company registered under the Companies Act dealing in masterbatches, plastic materials etc. represented by one of its employees Mr. Sukanto Mukherjee. The accused persons are having business under the name and style M/S Jagdamba Polyfabs Pvt. Ltd. being the accused no. 1 while the accused no. 2, 3 and 4 are the directors responsible for the day to day transaction of the accused no. 1 having their place of business at Khudika, Salanpur, Asansol. It is alleged in the petition of complaint that the complainant sold and supplied to accused no. 2, 3 and 4 different grades of masterbatches from time to time as per order and the accused persons assured payment for the goods within one month and also projected a rosy picture of business opportunity in Asansol, Jharkhand and Orissa. Being induced by the accused persons, the complainant company delivered goods to them and raised invoices for the same from time to time. Presently a sum of Rs. 18,49,733/- is due against the goods supplied. The complainant demanded the aforesaid amount from the accused but in vain. On 18/8/2015 the complainant made telephone call to accused no. 2 (petitioner herein) demanding payment but he denied having any knowledge regarding receipt of the goods. The complainant was then constrained to send demand notice to the accused persons but to no effect.
Learned counsel for the petitioner submitted that the matter is essentially of a civil nature given a cloak of criminal offence. It is pointed out that from the police report dated 4/10/2016 it is evident that there was ledger balance sheet showing series of payments received by the complainant from time to time against the goods supplied so there was no dishonest intention at the very inception of the transaction. The allegations in the petition of complaint do not disclose any offence qua the petitioner. It is canvassed that the petitioner resigned from the company named M/S Jagdamba Polyfabs Pvt. Ltd. (accused No. 1) on 16/9/2014 whereas the petition of complaint was filed on 6/5/2016 long after the petitioner had disassociated himself from the company. He was therefore in no way connected with the alleged transaction. It is further argued that the representative of the complainant company has nowhere stated in the petition of complaint that he has personal knowledge about the alleged business transaction. It is pointed out that no date of transaction has been mentioned anywhere in the petition of complaint. The only date referred to in paragraph 9 of the complaint is 18/8/2015 when the complainant allegedly made telephonic call to this petitioner demanding payment but the petitioner had resigned from the company before that date. To buttress his submissions learned counsel for the petitioner relied upon the following case laws:
1. Hridaya Ranjan Prasad Verma and others versus State of Bihar and another reported in (2000)4 Supreme Court Cases 168.
2. G. Sagar Suri and another versus State of U.P. and others reported in (2000)2 Supreme Court Cases 636.
3. S.W. Palanitkar versus State of Bihar reported in (2002)1 Supreme Court Cases 241.
4. Anil Mahajan versus Bhor Industries Ltd. and another reported in (2005)10 Supreme Court Cases 228.
5. Alpic Finance Ltd. versus P. Sadasivan and another reported in (2001)3 Supreme Court Cases 513.
6. Mrs. Anita Malhotra versus Apparel Export Promotion Council and another reported in (2012)1 Supreme Court Cases
520.
7. A.C. Narayanan versus State of Maharashtra and another reported in (2014)11 Supreme Court Cases 790.
Learned counsel for the opposite party no. 2 countered that the business transaction has not been disputed by the petitioner. The assertion that the petitioner had resigned from the company on 16/9/2014 is sought to be substantiated by a document the authenticity of which is doubtful. Leading this Court through paragraphs 4 and 9 of the petition of complaint, learned counsel for the opposite party no. 2 argued that it is the specific case of the complainant that the petitioner was associated with the accused no. 1 company during the business transaction. It is contended that if the averments in the petition of complaint prima facie make out a case for proceeding against the petitioner, the complaint cannot be quashed on the ground that it discloses a commercial transaction. To fortify this submission reliance has been placed upon the case of Rajesh Bajaj versus State NCT of Delhi and Others reported in (1999)3 Supreme Court Cases 259.
It is not in dispute that the petitioner was associated with the accused no.1 company as one of its directors. Petitioner's contention is that since he had resigned from the said company on 16/9/2014 he is not aware of any business transaction with the opposite party no. 2 and is in no way liable for the non payment of the alleged outstanding dues. The name of the petitioner has categorically been spelt out in the petition of complaint as one of the accused director of the company who along with accused no. 3 and 4 induced the complainant to deliver goods valued at Rs. 18,49,733/-. Whether the petitioner had resigned from the company is a disputed question of fact which is required to be decided by evidence during trial. There is also no merit in the argument that the matter cannot be allowed to proceed since it is purely a commercial dispute. In Rajesh Bajaj's Case (supra) the Supreme Court held that quashing of complaint on the ground that it disclosed a commercial or money transaction is not justified. The relevant paragraph 10 of the Judgement is quoted herein below:
"10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code [Illustration f] is worthy of notice now:
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
In Alpic Finance Ltd. (supra) it has been held by the Supreme Court that merely because remedy by way of civil suit is available is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged. In Pratibha Rani versus Suraj Kumar reported in (1985)2 Supreme Court Cases 370 the Supreme Court held as follows in paragraph 21 of the Judgement:
"There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import."
In Rajesh Bajaj's case(supra) it has been held that the crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of the offence or not. In the case at hand it is averred in the petition of complaint that the accused no. 2, 3 and 4 came to the complainant's place of business and introduced themselves as successful businessmen and directors of Jagdamba Polyfabs Pvt. Ltd. (accused No. 1 company). Upon the request and inducement of the accused persons, the complainant delivered the goods to them and raised the invoices for the same from time to time. The goods were duly received by them but small amount of payment was made after much persuasion by the complainant and a substantial sum of Rs. 18,49,733 is outstanding. The complainant demanded the aforesaid dues over telephone as well as by demand notice but in vain. On 18/8/2015 the complainant made telephone call to the accused no. 2 demanding payment but he denied having any knowledge about the receipt of the goods. The complainant was induced to believe by the accused persons that payment would be made within one month and they drew a rosy picture of business opportunity in Asansol, Jharkhand and Orissa. The complainant was unable to understand the dishonest intention of the accused persons and believed them. The main offence alleged by the complainant is that the accused persons duped him and thereby dishonestly induced him to deliver goods. Such averments prima facie make out a case for proceeding against the petitioner for the offence alleged. At this juncture it will be beneficial to refer to paragraph 9 of the Judgement in Rajesh Bajaj's case wherein the Supreme Court held as follows:
"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. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decision are a sound reminder: (SCC p. 379, para 103) "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
The case of Alpic Finance(supra) paragraphs 11 and 12 relied upon by the learned counsel for the petitioner is clearly distinguishable on facts from the instant case at hand. The case of A.C. Narayanan and Anita Malhotra's Case (supra) are also not applicable in view of the fact that both the aforesaid decisions relate to cases under the Negotiable Instruments Act. In A.C. Narayanan it was held that the complainant (payee) can file complaint under N.I. Act through power of attorney holder but the said power of attorney holder should have due knowledge regarding the transaction and it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction in the complaint. In G. Sagar Suri's Case(Supra) it was held that the criminal proceeding under section 406/420 IPC was liable to be quashed in view of the omnibus statement of misrepresentation and absence of details as to how the complainant was duped. The said case relied upon is factually distinguishable from the instant case. The case of S.W. Palanitkar and Hridaya Ranjan(supra) are also not apposite for the purpose of the present case. Anil Mahajan's case has no manner of application to the instant case. In the aforesaid case, having regard to the substance of the complaint it was held that the incident pertained to a civil case of breach of contract and not a criminal case of the offence of cheating. In the case at hand, upon perusal of the petition of complaint it cannot be said that the uncontroverted allegations made therein do not disclose the commission of any offence by the petitioner nor can it be said that the complaint is so bereft of even the basic facts which are necessary for making out a prima facie case for the offence alleged.
For the reasons discussed, the application being CRR 237 of 2017 is liable to be dismissed.
Consequently, CRR 237 of 2017 stands dismissed.
No order as to cost.
It is made clear that this Court has not expressed any opinion on the merits of the case and the learned Magistrate will decide the matter in accordance with law without being influenced by any observation made hereinabove.
Urgent photostat certified copy of this order if applied for, shall be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.)