Gauhati High Court
Anil Todi @ Anil Kumar Todi & Anr vs The State Of Assam & Anr on 24 May, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Petition No. 279 of 2015
1. Anil Todi @ Anil Kumar Todi,
Son of Sri Niranjan Lal Todi,
Resident of No. 2, Queens Park,
Kolkata - 700019.
2. Pranab Kumar Sarkar,
Son of Late Probhat Kumar Sarkar,
Resident of 5 Clive House, Strand Road,
Kolkata - 700001.
----- Petitioners.
- VERSUS -
1. The State of Assam.
2. Sri Pabitra Kumar Hira @ Pabitra Hira,
Son of Late Maneswar Hira,
Resident of Ward No. 10, Bhebarghat,
P.O. & P.S. Mangaldai, Dist. Assam.
----- Opposite parties.
BEFORE
Hon'ble mr. Justice HITESH KUMAR SARMA
Advocate for the petitioner : Mr. D Das, Sr. Advocate.
Mr. H Nath, Advocate.
Advocate for O.P No. 1 : Ms. S Jahan, Addl. P.P.
Advocate for O.P No. 2 : Mr. Dilip Mazumdar, Sr. Advocate
Date of hearing : 22nd of May, 2017.
Date of Judgment & Order : 24th of May, 2017.
JUDGMENT & ORDER
This is a petition under Section 482 Cr.P.C. for quashing the
orders dated 30-05-2014 and 29-01-2015, passed in CR 243C/2014, by
Crl. Pet. No. 279 of 2015 Page 1 of 11
the learned Chief Judicial Magistrate, Darrang, Mangaldai as well as the
order dated 24-03-2015, passed by the learned Sessions Judge, Darrang,
Mangaldai, in Criminal Revision 16(D-1) 2015 and to quash the whole
proceedings of CR Case No. 243C/2014.
2. I have heard Mr. Diganta Das, learned senior counsel appearing
on behalf of petitioner and Ms. S Jahan, learned Additional Public
Prosecutor, Assam, for opposite party No. 1. Also heard Mr. Dilip
Mazumdar, learned senior counsel for the opposite party No. 2.
3. The brief fact of the case is that on 22-04-2014, opposite party
No. 2 herein, who is the proprietor of M/S D&N Enterprise & M/S Hira
Feed Stores and dealer of power tillers and tractors, filed a complaint
case being Complaint Case No. 243C of 2014, in the Court of learned
Chief Judicial Magistrate, Darrang, Mangaldai. The allegation made in
the complaint is that on 17-03-2005, the complainant/opposite party
No. 2 visited the common office of M/S Khazana Agricultural
Equipments Ltd. and of Siva-Durga Finance & Investments Private
Limited, Kolkata of the accused/petitioners for purchase of 40 numbers
of Khazana S-1100 Power Tillers and made advance payment of Rs. 25
Lakhs. The said Power Tillers were to be delivered at Guwahati by Siva-
Durga Finance & Investments Private Limited.
4. Since the delivery was not made as agreed to, the
complaint/opposite party No. 2 went to the office of the
accused/petitioners at Kolkata, but found that the office did not exist.
The complainant visited several times to Kolkata in search of the
accused/petitioners, but to no avail.
5. The complainant/opposite party No. 2 could collect the address
and contact number of the accused/petitioner No. 1, though
Crl. Pet. No. 279 of 2015 Page 2 of 11
applications dated 21-01-2013 and 24-01-2013, under the Right to
Information Act, to the Assam Plains Tribes Development Corporation
Limited, where the accused/petitioner No. 1 supplied Power Tillers.
6. On 04-03-2013, the accused/petitioner No. 1 made a call to the
complainant and told him that he had some material proof, which
would cause damage to the complainant/opposite party No. 2 and so
he should pay him a sum of Rs. 5 Lakhs to avoid being exposed.
7. Thereafter, accused/petitioner No. 2 came to Guwahati and
made a call to him, which call the complainant/opposite party No. 2
did not receive. Thereafter, the accused/petitioner No. 2 visited the
Plains Tribe Corporation, Guwahati and introduced himself as an
employee of accused/petitioner No. 1. The accused/petitioner No. 2
informed the complainant/opposite party No. 2 to meet him at his
place of stay at Guwahati, but the complainant/opposite party No. 2
sent his representative to his place of stay i.e., Hotal Mayur, and got a
legal notice served on accused/petitioner No. 2, which he received with
acknowledgement. The complainant/respondent No. 2 sent a legal
notice to the accused/petitioner No. 1 also, but did not receive any response.
8. Thereafter, the complainant/opposite party No. 2, by letter dated 10-04-2013, sought information of payment made in respect of Cheque No. 027676 out of the account of the complaint/opposite party No. 2 and received the statement of transaction of Current Account of the Farm of the complaint/opposite party No. 2 showing that Rs. 25 Lakhs have been withdrawn from the account on 17-03-2005. Thereafter, the complaint/opposite party No. 2 sought for information from Kolkata Branch of ICICI Bank on 26-06-2013 regarding payment Crl. Pet. No. 279 of 2015 Page 3 of 11 made in respect of Cheque No. 027676 and demand draft No. 63439226, issued vide instrument No. 279055 dated 17-03-2005.
9. On 17-04-2014 the complainant/opposite party No. 2 received reply dated 11-04-2014 from the authorised signatory of ICICI Bank stating that said demand draft was credited on 18-03-2005 to the A/C No. 003405002291 of Siva-Durga Finance & Investment Limited and the complainant/respondent No. 2 has averred in his complaint that from the facts and circumstances it is clear that the accused/petitioner No. 1 has committed the alleged offence by not supplying the Khazana Power Tillers, even after several years, inspite of receipt of payment.
10. I have perused the order dated 30-05-2014, passed by learned Chief Judicial Magistrate, Darrang, Mangaldai, taking cognizance of offences, under Section 406/385/420/34 IPC, against the accused/ petitioners, after examining the complainant/opposite party No. 2 and the witnesses and on finding prima facie case against them.
11. I have also perused the order dated 29-01-2015, by which learned Chief Judicial Magistrate, Darrang, Mangaldai, directed the accused/petitioners to be present in the Court on the next date fixed.
12. I have further perused the order dated 24-03-2015, by which the learned Sessions Judge, Darrang, Mangaldai, dismissed the revision petition of the accused/petitioners praying for appearance in the Court through representative.
13. On meticulous perusal of the instant petition of the accused- petitioners under Section 482 Cr.P.C., it transpires that apart from the prayer for quashing the orders referred to above, quashing of the whole complaint filed by the complainant/opposite party No. 2, vide CR Case No. 243C/2014, is also sought for.
Crl. Pet. No. 279 of 2015 Page 4 of 1114. The learned senior counsel for the petitioners strenuously argued before this Court four points in support of his submission for quashing the proceeding in the aforesaid complaint as well as the orders passed in the Criminal Revision No. 16(D-1) of 2015. The four points raised by the accused-petitioners are as follows:
1. That, the incident in the instant proceeding took place in 2005 and there is delay of about 9 years in filing the complaint and this delay is fatal for the complaint.
2. That, the offences under Section 406/420 IPC cannot go together.
3. That, in view of the provisions of Section 468 Cr.P.C., taking cognizance of offences by learned Court is barred by limitation, and
4. That, the complaint does not prima facie make out a case under the provisions of law under which cognizance has been taken by the learned Chief Judicial Magistrate.
15. The learned senior counsel for the accused/petitioners referred to the following decisions of Hon'ble Supreme Court and the Hon'ble Gauhati High Court:
1. Kishan Singh (Dead) Through LRs. -vs- Gurpal Singh and others, reported in (2010) 8 SCC 775,
2. Hridaya Ranjan Prasad Verma and others -vs- State of Bihar and another, reported in (2000) 4 SCC 168,
3. S.W. Palanitkar and others -vs- State of Bihar and another, reported in (2002) 1 SCC 241,
4. Suneet Gupta -vs- Anil Triloknath Sharma and others, reported in (2008) 11 SCC 670, Crl. Pet. No. 279 of 2015 Page 5 of 11
5. Anil Mahajan -vs- Bhor Industries Ltd. and another, reported in (2005) 10 SCC 228,
6. Medchl Chemicals & Pharma (P) Ltd. -vs- Biological E. Ltd. and others, reported in (2000) 3 SCC 269,
7. Zandu Pharmaceutical Works Ltd. and others -vs- Mohd.
Sharaful Haque and another, reported in (2005) 1 SCC 122,
8. Harshendra Kumar D. -vs- Rebatilata Koley and others, reported in (2011) 3 SCC 351,
9. Indian Oil Corpn. -vs- NEPC India Ltd. And others, reported in (2006) 6 SCC 736,
10. Purandar Sahoo -vs- Golapi Sahoo, reported in (2007) 15 SCC 696,
16. Learned senior counsel for complainant/respondent No. 2 extensively argued on the issues raised by the learned counsel for the accused/petitioners. He has referred to the case of State of Haryana and others -vs- Bhajanlal and others, reported in 1992 Supp (1) SCC 335. He further refers to the decision of Bhaskar Lal Sharma and another -vs- Monica and others, reported in (2014) 3 SCC 383 and the case of Debabrata Phukan -vs- State of Assam and anr., reported in 2014 (2) GLT 902.
17. In Bhajanlal case (supra) guidelines have been given to exercise jurisdiction by the High Court under Section 482 Cr.P.C. and has also issued a note of caution in the same decision that power of quashing a criminal proceeding should be exercised very sparingly and with circumscription and that too in the rarest of rare cases.
18. Now, in view of the guidelines, although not exhaustive, given in the Bhajanlal case (supra), this Court at the first instance is required to see whether the complaint filed by the complainant/opposite party No. Crl. Pet. No. 279 of 2015 Page 6 of 11 2 is an abuse of the process of the Court and whether the allegations made in the complaint, even if taken at their face value and accepted in entirety, do not prima facie constitute any offence or make out a case against the accused/petitioners and whether the allegations made in the complaint do not constitute a cognizable offence. Further this Court has to see whether the allegations made in the complaint are absurd and inherently improbable on the basis of which no prudent person can reach a just conclusion that there is sufficient ground for proceeding against the accused/petitioners. That apart, whether a criminal proceeding is manifestly attended with mala fide and whether there is any express legal bar in the institution and continuance of the proceeding.
19. This complaint has been filed by the complainant/opposite party No. 2 before the learned Chief Judicial Magistrate alleging that inspite of receipt of Rs. 25 Lakhs by the accused/petitioner No. 1, he did not supply Khazana Power Tiller and even he shifted his office from the given address to some other address without any information to the complainant/opposite party No. 2, which made him roam around to locate him in the metropolitan city of Kolkata and ultimately he could locate him and his address after receipt of information from Assam Plains Tribes Development Corporation Ltd through an application made under the Right to Information Act.
20. The complaint, prima facie, discloses that the petitioner No. 1 received an amount of Rs. 25 Lakhs from the complainant/opposite party No. 2 and got it transferred to his account. Therefore, there appears that there is prima facie case to proceed against the accused/petitioner No. 1 and also against the accused/petitioner No. 2, he being the associate with accused/petitioner No. 1 and contacted the Crl. Pet. No. 279 of 2015 Page 7 of 11 complainant/opposite party No. 2 as stated in the complaint petition itself indicating his involvement in the mischief allegedly caused to the complainant/opposite party No. 2.
21. That apart, learned Chief Judicial Magistrate, Darrang, Mangaldai recorded the statements of the complainant/opposite party No. 2 and his witnesses and on being satisfied, formed an opinion that there are sufficient grounds to proceed against the accused/petitioners under Sections 406/385/420/34 IPC and accordingly took cognizance of the offences under the said provisions of law, by order dated 30-05-2014. As the learned Chief Judicial Magistrate, Darrang, Mangaldai found sufficient grounds for proceeding against the accused/petitioners, after recording initial statements of witnesses, it cannot be said that there is no prima facie case or proceeding with the complaint would be an abuse of the process of Court.
22. Coming to the argument of the learned senior counsel in respect of delay in filing the complaint it is found from the statement made in the complaint petition itself that from the year 2005 to 2014 the complainant/opposite party No. 2 was in search of the accused- petitioner No. 1 and his address and he could locate him only in 2014. The statement in the complaint petition makes it clear that the accused shifted his office from the known address and did not notify its new address.
23. The learned senior counsel for the accused/petitioners has referred specifically the paragraph-21 and 22 of the decision of the Hon'ble Supreme Court in Gurpal Singh (supra).
24. From a combined reading of paragraph of 21 and 22 aforesaid, it appears that if there is delay in lodging an FIR, the Court has to look for Crl. Pet. No. 279 of 2015 Page 8 of 11 plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal.
25. The above decision, referred to by the learned senior counsel on behalf of the accused/petitioners, does not appear to be applicable in the instant case in view of the fact that in the complaint petition itself there are several statements that till 2014, the complainant/respondent No.2 was in search for the petitioners due to shifting of their office from the known address. On the other hand, the plausibility of delay can finally be determined by the Court during the trial and the trial, in the instant case, in fact, has not yet begun.
26. The learned senior counsel for the accused/petitioners referred to the decision of this Court in Debabrata Phukan (supra) and he has specifically submitted, referring to paragraph-5 of the said decision, that there is distinction between criminal breach of trust and cheating and the offences under Sections 406 and 420 IPC cannot go together.
27. It deserves a mention here that the stage of framing of charge in the complaint under this quashing proceeding has not reached yet. Taking cognizance under Section 406 and 420 of the Indian Penal Code does not automatically mean that charge against the accused/petitioners would necessarily be under the provisions under which cognizance has been taken. The learned Chief Judicial Magistrate while taking up the complaint, as a usual course of law, would consider the evidence to be led by the parties before arriving at a decision as to under which provisions of law he will frame the charge, if at all required to frame a charge. Therefore, to go to the merit of the provisions of law under which cognizance was taken on the basis of the initial statements of the complainant/opposite party No. 2 and his witnesses is not of much relevance at this stage.
Crl. Pet. No. 279 of 2015 Page 9 of 1128. In view of guidelines in the Bhajanlal case (supra), the decisions referred to by the learned senior counsel for the accused/petitioners are not found applicable in the context of the facts of this case. This Court is of the view that there is a prima facie case made out by the complaint/opposite party No. 2 through his allegations in the complaint and this Court is of the view that proceedings with the complaint will not be an abuse of the process of Court inasmuch as there is no denial of the fact, at this stage, that the accused/petitioner No. 1 received Rs. 25 Lakhs from the complainant/opposite party No. 2 for supplying Power Tillers.
29. So far the limitation point raised by the learned senior counsel for the accused/petitioners, I have visited the provisions of Section 468 Cr.P.C. and found that Section 420 of Indian Penal Code provides punishment, which may extend to 7 years, and for an offence punishable upto 7 years, there is no limitation in taking cognizance provided under Section 468 Cr.P.C.
30. The learned senior counsel for the complainant/opposite party No. 2 referring to paragraph-14 of the decision in Prashant Bharati -vs- State (NCT of Delhi), reported in (2013) 9 SCC 293, submitted that truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage.
31. This Court is in agreement with this submission made by the learned counsel for the complainant/opposite party No. 2, read with the guidelines of Bhajanlal (supra) that there is no ground for quashing the proceeding of the complaint case referred to above. That apart, the order of the learned Chief Judicial Magistrate, Darrang, Mangaldai, directing the accused/petitioners to appear personally in the Court and not allowing them to be represented by their learned counsel in the Crl. Pet. No. 279 of 2015 Page 10 of 11 Court, vide order dated 29-01-2015 and dismissal of the revision petition filed by the accused/petitioners against the said order of the learned Chief Judicial Magistrate, Darrang, Mangaldai, vide order dated 24-03-2015, passed in Criminal Revision No. 16(D-1)/2015 are matters that can again be agitated before the learned trial Court on appropriate ground and the learned trial Court can consider such prayer if the identity of the accused/petitioners is not disputed. However, this is an observation only and the learned trial Court will be at liberty to take an independent decision if it is approached by the accused/petitioners with such a prayer. However, there is no illegality in the aforesaid two orders of the learned Chief Judicial Magistrate, Darrang, Mandaldai and the learned Sessions Judge, Darrang, Mangaldai, justifying their quashment.
32. In view of the above discussions and reasons recorded therein, I find that there is no merit in the instant petition under Section 482 Cr.P.C. Accordingly, the same is dismissed.
33. Return the LCR.
JUDGE Paul Crl. Pet. No. 279 of 2015 Page 11 of 11