Calcutta High Court (Appellete Side)
Senthil Kumar & Ors vs Rajesh Rungta on 7 June, 2016
Author: R. K. Bag
Bench: R. K. Bag
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2016.
p.b.
CRR 3758 of 2006
Senthil Kumar & Ors.
Versus
Rajesh Rungta.
Mr. Milan Mukherjee,
Mr. Biswajit Manna.
....for the petitioner.
Mr. Supriyo Chattopadhyay.
.....for the O.P.
The petitioners have preferred this revision challenging the order dated
September 16, 2005 passed by learned Metropolitan Magistrate, 11th Court,
Calcutta in Case No.C-313 of 2004 and praying for quashing of the criminal
proceedings of Case No.C-313 of 2004.
The backdrop of the present revisional application is as follows:
The opposite party filed a petition of complaint against the present
petitioners and other co-accused persons before the court of learned Additional
Chief Metropolitan Magistrate, Calcutta praying for issuance of process against
them for the offence punishable under Section 420/406/471/120B/34 of the
Indian Penal Code. It is alleged in the said petition of complaint that there was an
agreement between the opposite party/complainant and M/s. Victor Informatics
Private Limited (hereinafter referred to as the accused company) who happen to
be the agent of M/s. Real Image of ABID U.S.A. for purchase of software. It was
agreed that 50% of consideration money will be paid in advance and the
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remaining 50% will be paid within a period of two months from the delivery of the
software. It is alleged that Rs.40,000/- was paid in advance, but the dammy
software was supplied which could not be operated. There was exchange of email
communication between the parties whereby it was decided that the accused
company would supply different version of the software on further payment of
Rs.47,000/-. It is further alleged that the cheque of Rs.47,000/- was issued, but
the software which was supplied could not be made functional for non-supply of
some integral part of the software.
Learned Magistrate took cognizance and issued process against all the
accused persons including the present petitioners. The petitioners filed an
application before the court of learned Magistrate praying for exemption from
personal appearance under Section 205 of the Code of Criminal Procedure and
praying for permission to represent of the company through authorised agent
under Section 305 of the Code of Criminal Procedure. On September 16, 2005,
learned Magistrate allowed the application under Section 305 of the Code of
Criminal Procedure, but rejected the application filed under Section 205 of the
Code of Criminal Procedure. The petitioners have not only prayed for quashing of
the criminal proceeding, but also challenged the order of rejection of the
application filed under Section 205 of the Code of Criminal Procedure.
Mr. Manna, learned counsel for the petitioner contends that the opposite
party/complainant filed the present criminal proceeding after receiving notice of
a proceeding under Section 138 of the Negotiable Instruments Act initiated at the
instance of the accused company for dishonour of cheque of Rs.47,000/- issued
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by the opposite party/complainant in favour of the accused company. He further
submits that there is no iota of allegation against the petitioner nos.1, 2, 3 and 4
in the petition of complaint and as such, the criminal proceeding is liable to be
quashed at least against the petitioners nos.1, 2, 3 and 4. He also submits that
the personal appearance of the accused persons may be exempted by the trial
court by invoking the provision of Section 205 of the Code of Criminal Procedure.
Mr. Chattopadhaya, learned counsel for the opposite party submits that
the petitioners nos.1, 2, 3 and 4 are responsible for and on behalf of M/s. Real
Image Media Technologies Pvt. Ltd. He further submits that Mrs. Kabita Jha, the
agent of the accused company made communication on the basis of instruction
of the petitioners nos.1, 2, 3 and 4. He also submits that prayer under Section
205 of the Code of Criminal Procedure cannot be allowed without first
appearance of the accused/petitioners before the trial court.
The opposite party/complainant filed the petition of complaint before the
court of learned Magistrate praying for issuance of process against the petitioners
and other co-accused persons for the offence punishable under Section
420/406/471/120B/34 of the Indian Penal Code. On perusal of the petition of complaint, I find that the opposite party/complainant has made allegation against the accused company and its agent Samir Mukherjee for non-supply of software after receiving advance consideration money. It is also alleged in the complaint that Mrs. Kabita Jha and one Dipak Hirani have acted on behalf of M/s. Real Image Media Technologies Pvt. Ltd. for non-supply of software to the opposite party/complainant after receiving consideration money. It is relevant to 4 point out that the accused company acted as an agent of M/s. Real Image Media Technologies Pvt. Ltd. On close scrutiny of the allegation made in the petition of complaint, I do not find any allegation against the petitioner nos.1, 2, 3 and 4. The principle of vicarious liability cannot be invoked for fixing liability in connection with the offences punishable under the Indian Penal Code. The logical inference of my above observation is that no offence is made out against the petitioners nos.1, 2, 3 and 4 by taking the allegation in its entirety as disclosed in the petition of complaint. The natural corollary is that the criminal proceeding pending against the petitioners no.1, 2, 3 and 4 is liable to be quashed by invoking my inherent power under Section 482 of the Code of Criminal Procedure.
With regard to the order of rejection of prayer of the petitioners for personal exemption from the court of learned Magistrate under Section 205 of the Code of Criminal Procedure, I find that learned Magistrate did not assign valid reasons for rejection of prayer under Section 205 of the Code of Criminal Procedure. If there is no need of personal presence of the accused persons on each and every date of hearing of the criminal case, learned Magistrate must use his discretion in granting exemption from personal appearance of the accused persons as per provision of Section 205 of the Code of Criminal Procedure. It is the discretion of the learned Magistrate to direct the accused persons to be personally present on any specific date of hearing of the criminal case, so that the hearing of the case is not disrupted. In view of my above findings, I am inclined to hold that the order 5 of rejection of prayer under Section 205 of the Code of Criminal Procedure passed by learned Magistrate is not justified under the law.
In view of the observations made by me hereinabove, the criminal proceeding of Complaint Case No.C-313 of 2004 pending before the court of learned Metropolitan Magistrate, 11th Court, Calcutta, is quashed so far as the petitioners nos.1, 2, 3 and 4 are concerned. I would like to make it clear that learned Magistrate will continue with the hearing of the criminal case against other co-accused persons. The order dated September 16, 2005 passed by learned Metropolitan Magistrate, 11th Court, Calcutta in connection with Case No.C-313 of 2004 is set aside so far as prayer for rejection of the application under Section 205 of the Code of Criminal Procedure is concerned. Learned Magistrate is directed to pass fresh order on the basis of the application filed by the petitioners on March 3, 2005 after giving opportunity of hearing to both parties in the light of the observations made by me in the body of the order.
With the above direction, the criminal revision is disposed of. Let a copy of the order be sent down to the learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(R. K. Bag, J.)