Calcutta High Court (Appellete Side)
Gurudas Purakait vs State Of West Bengal & Anr on 6 March, 2009
IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side.
Present:
The Hon'ble Mr. Justice Partha Sakha Datta CRR No. 502 of 2008 Gurudas Purakait Vs. State of West Bengal & Anr.
For the Petitioner: : Mr. Manjit Singh
Mr. Anand Keshari
Mr. Avijit Sarkar
For the Opposite Party No. 2 : Mr. Swapan Mallick
For the State : Mrs. Jharna Biswas
Heard on : 27-01-2009
Judgment on: : 6th March, 2009.
Partha Sakha Datta, J.:-
The accused of the Complaint Case No. 1374 of 2007 under Section 420/406 of the IPC now pending before the learned A.C.J.M., Baruipur prays for quashing of the proceeding.
I have heard Mr. Manjit Singh, learned advocate appearing for the petitioner and Mr. Swapan Kumar Mallick, learned advocate appearing for the opposite party no. 1 and Smt. Jharna Biswas, learned advocate appearing for the State of West Bengal. The present petitioner assured the complainant (opposite party no. 1) of securing loan from State Bank of India, Nimpith Branch for extension of his tailoring business. He was taken to the Branch Manager who represented that a sum of Rs.45,000/- could be advanced by way of loan if a sum of Rs.40,000/- remains deposited for a period of three years. On 07-06-2003 the petitioner took the opposite party no.1 to the bank and a Fixed Deposit for Rs.40,000/- was made by opening an account. Loan was advanced. Petitioner signed as introducer. The petitioner allegedly obtained signature of the opposite party no. 1 on some blank papers and on some non-judicial stamp. The bank issued cheque book. Since the petitioner was a guarantor the opposite party no. 1 issued two cheques on being asked by the petitioner and the opposite party no. 1 was assured that those two cheques would be returned to him when the bank loan was repaid. The opposite party no. 1 tendered Rs.70,000/- to the petitioner in ten monthly instalments of Rs.10,000/- each for the purpose of depositing the same with the Bank but he did not pay the instalment amount with the bank.
The period of Fixed Deposit expired and the opposite party no. 1 asked the petitioner to return the cheques which he refused. He lodged a G.D.E. with the Joynagar Police Station being G.D.E. No. 2687 dated 29th of March, 2006. Again on 28th of August, 2007 the opposite party no. 1 asked for return of the cheques which he refused once again and another G.D.E. being no. 2400 dated 28th of August, 2007 was lodged. Therefore, it was alleged that the petitioner cheated the opposite party no. 1 and thus committed offence under Section 420/406 of the IPC.
The learned A.C.J.M., Baruipur took cognizance of the offence and issued process.
Mr. Manjit Singh, learned advocate appearing for the petitioner submitted that the complaint was lodged against the present petitioner by suppressing material fact that the opposite party no. 1 obtained loan of Rs.100000/- on one occasion and loan of Rs.2,54,546/- on another occasion and he issued a cheque for Rs.1 lac being cheque no. 972227 dated 26th of July, 2006 drawn on the S.B.I. Nimpith Branch and a cheque for Rs.2,54,546/- being cheque no. 972228 dated 26th of July, 2006 and when the said two cheques were presented they were bounced following which the present petitioner filed two complaint cases being no. C-5995 of 2006 and C-5996 of 2006 against the opposite party no. 1 under Section 138 of the N.I. Act in the year of 2006; and amidst the trial of the two cases the opposite party no. 1 filed the aforesaid Complaint Case of cheating, and criminal breach of trust and accordingly it is submitted that the said Complaint Case against the present petitioner should be quashed.
Mr. Singh cites the decision in Sunil Kumar vs. M/s. Escorts Yamaha Motors Ltd., 200 Cr.L.J. 174, K.L.E. Society and Ors. vs. Siddalingesh, (2008) 2 SCC (Cri) 455, and M/s. Eicher Tractor Ltd. & Ors. vs. Harihar Singh and Anr., 2009 (1) Crimes 144 (SC).
Mr. Swapan Kumar Mallick, learned advocate appearing for the opposite party no. 1 raised objection to the prayer for quashing of the proceeding submitting that the Complaint Case read as a whole clearly made out a case of cheating and criminal breach of trust and the alleged suppression of facts does not have any nexus with the facts in issue in the Complaint Case lodged against the petitioner. It is submitted that the court cannot take aid of the two complaints lodged against the opposite party no. 1 by the petitioner because they are extraneous to the Complaint Case lodged against the petitioner and the decisions referred to by Mr. Singh will be of no assistance. Mr. Mallick submits that if the court so pleases, the case against the present petitioner may be transferred to the learned Magistrate at Alipore who is trying the two complaint cases lodged against the opposite party no. 1.
I find that the narration in the complaint case lodged by opposite party no. 1 run counter to the case of the petitioner under Section 138 of the N.I. Act. The case of the petitioner is simply that the petitioner advanced loan on two occasions and two cheques were issued by the opposite party no. 1 and the same got bounced. On the other hand the case of the opposite party no. 1 rests on certain facts which inter alia are that the opposite party no. 1 tendered money to the petitioner by instalment for the purpose of deposit of the same with the bank but the money was not deposited by the petitioner who stood as guarantor and allegedly the petitioner obtained signatures of the opposite party no. 1 on certain documents and cheques. The narration in the complaint of the opposite party appears to be his defence in the case lodged against him by the petitioner and it is in the fitness of things that the two cases should be tried simultaneously by the same Magistrate so that there could be proper appreciation of evidence in both the cases. It is difficult to hold without evidence that the case of the opposite party no. 1 deserved immediate dismissal. The decision in M/s. Eicher Tractor Ltd. and Ors. (supra) is in a fact situation not exactly identical to the case at hand. It cannot be readily inferred at this stage that the case against the present petitioner is a false one because falsity or otherwise of a case can be decided at the trial. The decision in Sunil Kumar (supra) is in a different fact situation. In that case the Hon'ble Supreme Court held that the appellant resorted to civil remedy for adjudication by an arbitrator and in such circumstance the complaint under Section 420/406/468 IPC must be held to be an abuse of the process of the law, and secondly the assertions made in the Complaint Case do not satisfy the ingredients of the offence of cheating. Whether suppression of the filing of the two complaint cases against the opposite party no. 1 would amount to falsity of the Complaint Case lodged against the present petitioner can hardly be decided here. The other decision K.L.E. Society (supra) also reveals that in that case ingredients of Section 403, 405 and 415 did not exist. In that case there was a contradictory stand by the complainant in his petition under Section 33-C (2) of Industrial Disputes Act 1947.
In the circumstances, the appropriate course would be to direct trial of the Complaint Case No. 1374 of 2007 under Section 420/406 of the IPC simultaneously with the trial of the Complaint Case No. C-5995 of 2006 and C- 5996 of 2006 by the same Magistrate, namely the Judicial Magistrate, 4th Court at Alipore.
Accordingly, I dispose of this application directing transfer of the Complaint Case No. 1374 of 2007 from the file of learned A.C.J.M., Baruipur to the learned Judicial Magistrate, 4th Court, Alipore who is directed to try the Complaint Case No. 1374 of 2007 from the stage where it was reached simultaneously with the two Complaint Cases being No. C-5995 of 2006 and C- 5996 of 2006 and conclude the trial at one and the same time and pass separate judgments in three cases on a same day as expeditiously as possible preferably within three months from the date of communication of the order without granting adjournment excepting for unavoidable circumstances to either of the parties.
A copy of the order shall be sent to the learned A.C.J.M., Baruipur and Judicial Magistrate, 4th Court, Alipore for information and necessary action.
(Partha Sakha Datta, J.)