Calcutta High Court (Appellete Side)
Dr. Amitava Chatterjee vs The State Of West Bengal & Anr on 19 November, 2018
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 1921 of 2016
Dr. Amitava Chatterjee
Versus
The State of West Bengal & Anr.
For the petitioner : Mr. Kaushik Gupta
Mr. Anirban Tarafder
..... Advocates
For the State : Ms. Faria Hossain
Ms. Debjani Sahu
......Advocates
For the Opposite Party No. 2: Mr. Hironlal Majumder
Mr. Arindam Sen
Ms. Payal Roy Mishra
Heard on : 20.09.2018
Judgment on : 19.11.2018
Jay Sengupta, J.:
1. The petitioner has challenged an investigational proceeding including the First Information Report in CGR Case No. 2029 of 2012 pending before the Learned Chief Judicial Magistrate, Alipore, South 24 Parganas arising out of Bhowanipore Police Station Case No. 228 of 2012 dated 02.05.2012 under Sections 467, 472 read with Section 34 of the Penal Code.
2. It appears that the opposite party no. 2/de facto complainant being the Director of Chittaranjan National Cancer Insitute (CNCI, for short) lodged a First Information Report against the petitioner, the then Assistant Director, CNCI and the Principal Investigator of a project funded by the Defence Research and Development Organisation (DRDO, for short) at CNCI, Kolkata. The crux of the allegations contained in the First Information Report were as under -
(i) On scrutiny of records it was revealed that amounts of Rs. 8,49,875/- and Rs. 1,22,083/- had been drawn by two demand drafts, both dated 10.04.2012 in the name of CDA (R & D), which were supposed to be refunded to the funding agency being the unspent balance in respect of the project. But, the drafts were not sent to the funding agency till the afternoon of 27.04.2012 and it was lying with the petitioner. On being asked by the opposite party no. 2, the petitioner deposited it at the former's office.
(ii) At the time of opening of the back account, it had been agreed that the bank operation would be done by the Director jointly with the Senior Accounts Officer and in the absence of the Director, by the Principal Investigator jointly with the Senior Accounts Officer and in absence of the Senior Accounts Officer, with the Administrative Officer. But, on enquiry with the bank, it was found that the above referred drafts were issued by the bank on the advice of the petitioner being the Principal Investigator and no signature of the Director or Senior Accounts Officer or Administrative Officer was found on the advice although the Director was in the office on that date.
(iii) The advice/application bore the seal of Assistant Director (Senior) as that of the petitioner although no such post existed. The word "senior" was written in ink.
3. Mr. Kaushik Gupta, the Learned Advocate appearing on behalf of the petitioner submitted that the petitioner was a reputed and an award winning scientist. He contended that no prima facie case was made out against the petitioner as alleged as would be evident from a plain reading of the First Information Report. As such, the impugned proceedings were liable to be quashed. He submitted that no case of forgery or preparation of false document is made out at all. Even technically, the offending provision would not be attracted as the document did not lie about itself. On this, he relied on the ratio laid down in (i) Sheila Sebastian vs. R. Jawaharaj & Anr, (2018) 7SCC 581 and (ii) J. Th. Zwart & Ors vs. Indrani Mukherjee (1990) 1 CHN
62. He submitted that insertion of the word "senior" was merely to mark the petitioner's seniority. He submitted that if at all, it was an irregularity that caused no harm to anyone. No one was benefitted unduly. He further contended that even if the bank draft were cancelled, the amount would have come back to the Department and not gone to the petitioner. The Learned Advocate submitted that any further continuation of the impugned proceeding would be an abuse of the process of Court.
4. Mr. Hironlal Majumder, the Learned Advocate appearing on behalf of the de facto complainant/ opposite party no. 2 opposed the application for quashing. He submitted that although a final report was earlier submitted in this case seeking discharge of the accused, a protest petition was subsequently allowed by the Learned Magistrate. The Learned Advocate laid emphasis on the resolution for bank operation and contended that it was a gross irregularity on the part of the petitioner to issue such a payment advice although the Director was there at the station.
5. Mrs. Faria Hossain, the Learned Advocate appearing on behalf of the State placed a copy of the Case Diary certified to be true by the Officer-in- Charge for perusal and referred to some relevant portions of the same touching upon the facts as referred above.
6. Heard the Learned Advocates for the parties, perused the application and affidavits exchanged between the private parties and carefully went through the copy of the Case Diary produced.
7. In J. Th. Zwart's Case (supra), a Division Bench of this Hon'ble Court held-
" 11. Under Section 470 of the Indian Penal Code 'false document' made wholly or in part by 'forgery' is designated a 'forged document'. 'Forgery' has been defined in Section 463 of the Indian Penal Code to mean making of a 'false document' with any intents mentioned therein; and 'false document' has been defined under Section 464 of the Indian Penal Code. Under the first clause of Section 464 which is relevant for our purposes, a person makes a false document if he makes or signs a document - (i) intending it to be believed that it was made or signed or executed by, or by the authority of, some person by whom, or by whose authority, he knows it was not made or signed, or (ii) with the intent that it shall be believed that it was made or signed at a time when he knows it was not so made or so signed.
12. The allegation in the complaint is that the contents of the two documents dated 03.02.89 and 30.03.89 are false and that they have been manufactured to sustain a false charge against the complainant. In our considered view incorporation or inclusion of a false statement in a document would not ipso facto make the document false for a document to be false it has to tell a lie about itself. In the instant case the documents were admittedly written and signed by Sri S.N. Banerjee and therefore it would not be false even if the complainant's receipt of Rs. 1510/- from Sri Banerjee as contained therein was a lie."
8. In this regard the Hon'ble Apex Court's decision in Sheila Sebastian's Case (supra) also supports the above proposition in some ways although the core facts were a little different there.
9. In Md. Ibrahim vs. State of Bihar, (2009) 8 SCC 751, the Hon'ble Supreme Court held-
"13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception; or from a person not in control of his senses.
15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of "false documents". It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents" , it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When the document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
10. It would be trite to mention that the ratio laid down in Md. Ibrahim's Case (supra) would hold good vis-a-vis Section 472 of the Penal Code as well because forgery is the foundation of this provision too.
11. If the facts of the present case are seen in the light of the ratios referred to above, it will be abundantly clear that the purported offending payment advice issued by the petitioner was neither a false document nor an outcome of forgery. The document did not lie about itself. It was executed by the petitioner in his capacity as the Principal Investigator of the project. He used the designation Assistant Director (Sr.) of the CNCI instead of the actual position of Assistant Director, the term (Sr.) being written in ink. For such an act, the petitioner could at the worst be reprimanded for an unjust aggrandizement of ego. But, this had not and could not have given the petitioner any advantage in executing such a payment advice. In fact, in their statements as present in the Case Diary, two bank officials admitted that due to mistake they acted on such advice. On the other hand, it is quite perturbing to note that although the First Information Report and the statement of the Administrative Officer as recorded by the Investigating Officer categorically mention that there was no post of an Assistant Direct (Sr.) in the concern, their statements blissfully avoid mentioning that the petitioner was nevertheless an Assistant Director of CNCI. By any stretch of imagination, putting the suffix "(Sr.)" with ink after the actual designation of "Assistant Director" by the said Assistant Director himself cannot be treated as an act of forgery or render the document a false one, especially in the facts and circumstances of the present case. It is another thing that the other supposedly authorised person for executing the payment advice did not participate and yet, the admittedly inept bank officials acted on such inchoate advice. Since, the offending document is not a false one or an act of forgery, the petitioner cannot be imputed with charges under Sections 467 and 472 of the Penal Code.
12. Another decisive factor in this case is that no mens rea even prima facie appears to be there in the execution of such a payment advice. First, admittedly the bank drafts were kept in the petitioner's office and were handed over to the informant merely on the asking. Secondly, no one else was to unjustly benefit from the alleged actus reus, not even the petitioner. The bank drafts were prepared in favour by the funding agency, the actual beneficiary. Even if the drafts were cancelled, the money would have gone back to the department.
13. I do not find that a prima facie case has been made out against the petitioner in respect of the alleged offences as would be evident from a plain reading of the First Information Report. Nor do the materials including the statements of witnesses as available in the Case Diary make out a prima facie case against the petitioner.
14. In Ajay Mitra vs. State of Madhya Pradesh, (2003) 3 SCC 11, the Hon'ble Apex Court, inter alia, held that if a prima facie case is not made out, a First Information Report can be quashed by invoking inherent powers contained in Section 482 of the Code.
15. In view of the above discussions, the impugned investigational proceeding including the impugned First Information Report is quashed.
16. A copy of this order may be sent down to the Learned Court below forthwith by Special Messenger.
17. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J)