Calcutta High Court (Appellete Side)
Tata Motors Finance Limited & Ors vs Sujit Kumar Ghosh on 26 November, 2018
1
In The High Court At Calcutta
Criminal Revisional Jurisdiction
26.11.18
CRAN 2648 of 2018
CRR 1356 of 2018
Tata Motors Finance Limited & Ors.
-vs-
Sujit Kumar Ghosh
Mr. Kaushik Chatterjee
Mr.Tirthankar Dey
... for the petitioners.
Ms. Sudarshana Nandi
... for the opposite party.
This revisional application is at the instance of Tata Motors Finance
Limited represented through its officers. The petitioner no. 1 is a non-banking
financial company incorporated under the Companies Act, 1956, having its
registered office at Makers Chamber, Nariman Point, Mumbai-400021 and its
branch office at 26/13, Sahid Surya Sen Road, Police Station- Berhampore,
District- Murshidabad, Pin- 742101. The petitioner no. 1 is engaged in the
business of providing finance facilities to its various customers for purchase of
vehicles including commercial vehicles amongst others. The petitioner nos. 2 and
3 are employees of the petitioner no. 1 and the petitioner no. 4 is also a
responsible officer of an associate of the petitioner no. 1. The petitioners nos. 2
and 3 are designated as the Territory Collection Managers of the petitioner no. 1
and the petitioner no. 4 is employed as the Collection Executive of the subsidiary
2
company. The petitioner nos. 2 to 4 have no nexus and/or affiliation with any
sort of criminal activity.
The instant proceedings being Complaint Case No. C.R. 218 of 2017 was
initiated at the behest of the opposite party before the Court of the learned
Judicial Magistrate, 1st Court, Berhampore alleging commission of offences
punishable under Sections 325/307/308/386/379/468/471/406/506/34 IPC.
The brief facts of the case is that the opposite party is a renowned person
and is engaged in the business of logistics; that the opposite party, on April 30,
2013 purchased a truck for business purpose from New Line Auto Track Pvt.
Limited; that for the purpose of availing financial assistance for the purchase of
the said truck, the opposite party had approached the petitioner no. 1; the said
loan was duly sanctioned by the petitioner no. 1; on April 30, 2013 the
complainant had deposited ten signed blank cheques of Allahabad Bank, K.N.
Road Berhampore Branch having Account No. 21024701300; the opposite party
was informed that those blank cheques were deposited as security and will be
returned to the opposite party as soon as the loan amount is repaid. The finance
company disbursed an amount of Rs. 18,20,000/-.
The opposite party after purchasing the chassis of the truck had spent
another 4 lacs for manufacturing the body of the truck and used to drive the
truck for business purpose.
The opposite party through the petitioner nos. 2 to 4 and another co-
accused person used to regularly pay the installment amount to the petitioner
no. 1; the opposite party had paid a total amount of Rs. 15,66,885/- towards
3
repayment of loan installment and an amount of Rs. 2,53,115/- was due; on
March 23, 2017, when the opposite party went to the office of the finance
company the petitioner no. 2 forcibly demanded an amount of Rs. 6,90,000/-
from the opposite party.
When the opposite party demurred against such illegitimate demand, the
petitioner nos. 3 and 4 and the other accused persons upon instruction from the
petitioner no. 2 manhandled the opposite party. The petitioners also snatched the
original registration certificate (blue book) from the opposite party and threatened
him with dire consequences. The accused persons also threatened the opposite
party that they will get the cheques bounced and initiate legal action against him.
It is contented that by an order dated April 1, 2017 the learned Chief
Judicial Magistrate, Murshidabad was pleased to take cognizance of the offences
against the petitioners and the case was transferred to the Court of the learned
Judicial Magistrate, 1st Court, Berhampore for judicial inquiry and trial.
By order dated September 25, 2017 the learned Judicial Magistrate, 1st
Court, Berhampore was pleased to issue process against the petitioners without
holding an enquiry as envisaged in Section 202 of the Code of Criminal
Procedure.
Section 202 of the Code of Criminal Procedure as amended by the Code of
Criminal Procedure (Amendment) Act, 2005 reads as follows:-
" Postponement of issue of process:- (1) Any Magistrate on receipt of a
complaint of an offence of which he is authorized to take cognizance or which has
been made over to him under Section 192, may, if he thinks fit, [ and shall, in a
case where the accused is residing at a place beyond the area in which he
4
exercises his jurisdiction] postpone the issue of process against the accused, and
either inquire into the case himself or direct an investigation to be made by a police
officer or by such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,
(a) Where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Sessions; or
(b) Where the complaint has not been made by a Court, unless the
complainant and the witness is present ( if any) have been examined on
oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take
evidence of witnesses on oath.:
Provided that if it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Sessions, he shall call upon the complainant to
produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a
police officer, he shall have for that investigation all the powers conferred by
this Code on an Officer-in-Charge of a police station, except the power to
arrest without warrant. [Instituted by the Code of Criminal Procedure (
Amendment) Act, 2005 ( 25 of 2005)( w.e.f. 23.06.2006)]"
In view of the aforesaid provision makes it abundantly clear that it is
obligatory on the part of the learned Magistrate to hold an enquiry under Section
202 of the Code of Criminal Procedure in the event the accused is residing at a
place beyond the area in which he exercises his jurisdiction. In the instant case
the petitioner nos. 2 to 4 who have been summoned to appear before the learned
5
Magistrate admittedly reside beyond the area over which the learned Magistrate
exercises jurisdiction inasmuch as the petitioner no. 2 resides at Ward No. 7,
Cuttack Municipal Corporation, Police Station- Bidanasi, Cuttack- 753008, the
petitioner no. 3 resides at Village- Harka Kalyan, Post Office- Harka Man, Police
Station-Minapur, District- Muzaffarpur, Bihar, Pin- 843128 and the petitioner
no. 4 resides at City Pallishree, Post Office- Krishnagar, District- Nadia, Pin-
741101. It therefore, brings no controversy that it was incumbent upon the
learned Magistrate to hold an enquiry as envisaged under Section 202 of the
Code of Criminal Procedure prior to adverting to the provisions of Section 204 of
the Code of Criminal Procedure.
The amendment clearly reflects the legislative intent must be complied with
by the learned Magistrate, failing which the proceeding shall be vitiated by an
incurable irregularity as has happened in the instant case.
Thus, the order dated September 25, 2017 thereby issuing process against
the petitioners is in contravention of the mandate of the amended provisions of
Section 202 of the Code of Criminal Procedure and the same is liable to be set
aside on the score that the petition if perused would reveal that it is simply on
affidavit without enlisting the names of the witnesses and without recording their
statements on solemn affirmation.
It would also be wise to reproduce the order dated September 9, 2017
passed in C.R. 218 of 2017 reads thus:-
" Complainant files hazira and is present.
The complainant files a petition of complaint against the accused persons
named in the petition.
6
Perused the petition of complaint.
Complainant is examined u/s 200 Cr.P.C. on dock and released.
Hd. Ld. Advocate for the complainant.
On perusal, this Court finds that a prima facie case u/s.
325/307/308/386/379/468/471/406/506/34 IPC as made out against all accused persons.
Cognizance is taken.
Issue summons against the accused u/s.
325/307/308/386/379/468/471/406/506/34 IPC is made out against accused persons directing them to appear before the Court.
30.11.17 for S/R and appeal."
Having perused the order impugned this Court is of the view that the order is not tenable in law.
Admittedly, there was Loan-cum-Hypothecation-cum Guarantee Agreement between the petitioner No. 1 Company and the opposite party/complainant. It is also understood from the averments made in the petition that the opposite party no. 2 has failed and neglected to repay the loan amount.
Be that as it may at this stage of the proceedings the parties to the case being the petitioners and the complainant have jointly filed an application being CRAN 2648 of 2018 praying for quashing of the proceedings in Complaint Case No. C.R. 218 of 2017 pending in the Court of the learned Judicial Magistrate, 1st Court, Berhampore under Sections 325/307/308/386/379/468/ 471/406/506/34 IPC and all orders passed therein.
It clearly goes to show that the complainant had taken a coercive measure by knocking the door of Magistracy for issuance of processes of the alleged 7 offences including under Sections 307/308 of IPC which are exclusively triable by a Court of Sessions.
The learned Magistrate has committed a gross error of law by causing injustice to the petitioners for having issued process under session offences without taking statement of all witnesses on solemn affirmation. It is pertinent to take note of the fact that list of witnesses are not mentioned in the complaint. No medical evidence prima facie has been considered before issuance of process under Sections 307 and 308 IPC. The learned Magistrate does not appear to have understood the provisions of law.
Therefore, the Judicial Magistrate concerned is required to undergo proper training in the Judicial Academy. However, this revisional application is disposed of in view of the joint application filed on behalf of the parties.
The proceedings in Complaint Case No. C.R. 218 of 2017 pending before the learned Judicial Magistrate, 1st Court, Berhampore under Sections 325/307/308/ 386/379/468/471 /406/506/34 IPC is, thus, quashed in view of the amicable settlement arrived at by and between the parties, however, the complainant is imposed with exemplary cost of Rs. 5,000/- for harassing the petitioners which shall be deposited with the High Court Legal Services Authority for the interest of the poor litigants.
Let a copy of this order be sent to the learned Registrar (Judicial) for his information and arranging suitable training to the learned Judicial Magistrate Concerned.
8
Thus, CRR 1356 of 2018 and CRAN 2648 of 2018 are disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
sh ( Shivakant Prasad, J.)