Calcutta High Court (Appellete Side)
Bangalore School Of Business & Ors vs Unknown on 4 April, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 18. 04.04.2013
m.b C.R.R. 3975 of 2011 In Re.: An Application under Section 482 of the Criminal Procedure Code, 1973.
And In the matter of :. Bangalore School of Business & Ors.
.......... petitioners Mr. Uday Sankar Chattopadhyay, Mr. Suman Sankar Chatterjee ..........for the petitioners Mr. Subrata Bhattacharyya ...........for the Opposite Party The petitioner nos 2 to 7 are the office bearers of the petitioner no. 1, an educational institution, under the name and style Bangalore School of Business. The petitioners have approached this Court praying for quashing of the proceedings being C.R. 96 of 2010 pending before the learned Judicial Magistrate, 2nd Court, Durgapur, alleging commission of offence punishable under Sections 420/120B of the Indian Penal Code.
The crux of the prosecution case, as made out in the petition of complaint, is that the opposite party/complainant was an aspiring student, who took admission to petitioner no. 1 institute on the basis of false representation that the institute was giving M.B.A. Decree, which was affiliated to Madurai Kamraj University. However, upon deposit of money and getting admission to such 2 course, the opposite party/complainant found out that the institute was not affiliated to the Madurai Kamraj University and was giving degree of EIILM University. She wanted refund of her admission fee, etc., which denied and hence, she alleged that the petitioners had committed the offence of cheating. The learned Magistrate upon examination of the complainant had issued process against the petitioners. Thereafter, the petitioners had approached the Hon'ble Supreme Court for transfer of the criminal proceeding by filing a petition, being Transfer Petition (Crl.) No. 301 of 2010. The said Transfer Petition was dismissed by the Hon'ble Supreme Court. Thereafter, the learned Magistrate by an order dated 09.09.2011 had issued non-bailable warrant of arrest against the petitioners.
Mr. Chattopadhyay, learned advocate for the petitioners, submits that the uncontroverted allegations made in the petition of complaint do not disclose the essential ingredients for the offence of cheating. It is his further submission that the provisions of Section 202 of the Code of Criminal Procedure, as amended, was not complied with. He further submits that the issuance of warrant of arrest was wholly unwarranted in law. He submits that the petitioner no. 1 institute is affiliated to a university, which is recognized by UGC and hence, no wrongful loss can be said to have been suffered by the complainant.
3I have considered the materials on record and the submission of Mr. Chattopadhyay. It appears from the petition of complaint that the complainant was induced to seek admission in petitioner no. 1 institute on the false representation that it was affiliated to Madurai Kamraj University. However, subsequently she realized that the petitioner no. 1 institute was not affiliated to such university. Mr. Chattopadhyay submits that the petitioner no. 1 institute, however, was affiliated to EIILM University, which is a recognized university and was empowered to issue a valid MBA degree. I am of the opinion that uncontroverted allegations in the petition of complaint make out a case of deception that the complainant was given a wrong impression that the petitioner no. 1 institute was affiliated to Madurai Kamraj University, which was not the case. Whether affiliation of the petitioner no. 1 institute to another recognized university would suffice the purpose and would not cause any wrongful loss to the complainant, is a matter to be considered by the learned Magistrate at the appropriate stage of the proceeding. Suffice it to say that at the initial stage, there was no error in jurisdiction of the learned Magistrate in issuing summons on the basis of uncontroverted allegations that the complainant was induced to seek admission in the petitioner no. 1 institute on the basis of false representation that the institute was affiliated to Madurai Kamraj University, which admittedly was not 4 the case. I am, therefore, unable to accept the submission of Mr. Chattopadhyay that there is no prima face case made out in the uncontroverted allegations in the petition of complaint. I, however, clarify that the issues raised by Mr. Chattopadhayay in the instant application with regard to the affiliation of the institute to another recognized university and that no wrongful loss was suffered by the complainant thereby, may be agitated by him in the course of recording of pre-charge evidence and the learned Magistrate would be at liberty to decide such issues in accordance with law at the stage of framing of charge.
With regard to the non-compliance of the mandatory provisions of Section 202 of the Code of Criminal Procedure, I am of the opinion that no prejudice was suffered by the petitioners in view of the fact that the uncontroverted allegations in the petition of complaint and the initial deposition make out a prima facie case to proceed against them. Mere technical non-compliance of the aforesaid provision with any demonstration of palpable prejudice to the accused would not be a good ground to quash the impugned proceeding.
Lastly, with regard to the issuance of non-bailable warrant of arrest against the petitioners, it is the fact that the petitioner nos. 2 to 7 are residents of Bangalore and were unable to appear before 5 the learned Magistrate due to lack of proper communication in that regard.
Mr. Chattopadhyay submits that the petitioners are ready and willing to appear before the learned Magistrate. I, therefore, stay the impugned order dated 09.09.2011 issuing non-bailable warrant of arrest against the petitioners on condition that the petitioners shall appear before the learned Magistrate within a month from date and in the event, they do so, they would be enlarged on bail and would be at liberty, if they so chose, to seek personal exemption from the learned Magistrate under Section 205 of the Code of Criminal Procedure. In the event, the petitioners fail to appear personally before the learned Magistrate within the aforesaid stipulated time, the order of non-bailable warrant of arrest shall stand survived and would be executed against them in accordance with law.
With the aforesaid direction, the instant revisional application is disposed of.
There will, however, no order as to costs.
Let photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities.
(Joymalya Bagchi, J.) 6