Calcutta High Court
Rajesh Mundhra And Ors. vs The State Of West Bengal And Ors. on 28 November, 2002
Equivalent citations: (2003)3CALLT505(HC)
JUDGMENT D.P. Sengupta, J.
1. In the present application the petitioners have prayed for quashing of a proceeding being G.R. Case No. 3990 of 2001 arising out of section R-1 (Beniapukur P.S.) Case No. 436 dated 8.12.2001 under Sections 420/120B/341 /201 of the Indian Penal Code pending in the Court of learned ACJM, Sealdah, South 24 Parganas.
2. On the basis of a complaint lodged by one Sanatan Kundu the aforesaid ease was registered with Beniapukur Police Station and on completion of investigation charge sheet was submitted by the police against the accused petitioners under Sections 420/120B/341/201 of the Indian Penal Code.
3. The allegation made in the FIR is that the complainant Sanatan Kundu was the sole proprietor of the Carnation Enterprises, which was subsequently converted into a Private Limited Company and was renamed as Carnation Enterprises Pvt. Ltd., wherein the accused No. 1 was inducted as a Director alongwith the complainant. The complainant Sanatan Kundu and his brother Madan Mohan Kundu are both founder directors of the said company. On 1.11.2001 the company issued one letter that a Board of Directors' meeting would be held on 6.11.2001 to discuss and consider the matter as stated in the agenda in the said letter. But in the said letter no such agenda regarding Submission of resignation by the complainant and his brother was mentioned. The complainant and his brother attended the said meeting on 6.11.2001. But on 7.11.2001 the complainant and his brother received a letter dated 6.11.2001 from the Chairman E.M. Narielwala (accused petitioner No. 3 herein) confirming the acceptance of the resignation of the complainant and his brother from the Directorship of the company and appreciating their past services rendered to the company. The complainant and his brother were very much surprised to receive such letters as they neither submitted any resignation to the Board nor they ever intended to do so. Subsequently the complainant and his brother received another letter dated 7.11.2001 from the Company Secretary Rajesh Mundhra (accused petitioner No. 1 herein) stating that the verbal resignation of both of them were accepted by the Board and they were requested to send their resignation in writing. It was further alleged in the complaint that P.M. Narielwala, Chairman of the company (accused petitioner No. 3 herein) sent instructions to the company's five (5) Bankers confirming the resignation of the complainant and his brother and also for removing their names from the list of authorised signatories of the company and inserted the fresh names of Mr. Rajesh Mundhra, Company Secretary and Mr. Pradip Chakraborty, Company Accountant in their place. Having received such information the complainant and his brother in order to safeguard the interest of the company as also of the shareholders, served notices upon the said Bankers asking them not to act upon such forged and fabricated, documents. But inspite of such precautionary measures taken by the complainant and his brother, the accused persons in collusion with some Bank Officers withdrew money from the State Bank of Hyderabad, Lansdowne Branch, Calcutta and misappropriated the said company on the basis of forged and fabricated documents for the purpose of cheating the company itself, the complainant and his brother as also the shareholders of the company.
The first point raised by the learned advocate of the petitioners is that the allegations-contained in the charge sheet, even if it is taken to be true, do not make out any offence at all. Secondly it is argued by the learned advocate of the petitioner that on the self-same allegation the complainant and his brother filed a civil suit for similar relief and since the said civil suit is still pending the criminal proceeding should not be allowed to continue.
4. The learned advocate of the petitioners relies upon a judgment of the Hon'ble Supreme Court (R.P. Kapur v. State of Punjab). In the said judgment the Hon'ble Supreme Court has laid down the circumstances and the categories of cases where the inherent jurisdiction under Section 482 Cr.PC can and should be exercised. But in my considered view the said judgment has got no manner of application in the present case, which does not come within the purview of any of the categories mentioned in the said judgment. On the materials collected by the investigating agency it can be said that a prima facie case has been made out which is sufficient for the purpose of taking cognizance of the offence. The learned Magistrate on being satisfied regarding the prima facie case has taken cognizance of the offence. Whether the materials collected are sufficient for framing of charge or not, can only be decided at the stage of framing of charge.
5. The learned advocate of the petitioners also relies upon the judgment reported in 1978 CHN (Ajit Kumar Chatterjee v. Jugal Kishore Dhandhania and Anr.). In the said judgment it was held by the Division Bench of this Court that it is well settled that the principle of quashing a proceeding after a charge has been framed rests upon the proposition that if on the face of the record and on the basis of the available evidence, if unrebutted, no case is made out, then the.prosecution should not be allowed to continue in a fruitless way. In my view the said judgment also has no application in the present case as the facts and circumstances of the said case is quite different from the present one.
6. The judgment reported in 1990(1) CHN 62 (J.Th. Zwart and Ors. v. Indrani Mukherjee), referred to by the petitioners' learned advocate, is also not applicable in the present case because of the same reason as stated above. In the said judgment it was held by the Division Bench of this Court that to entitle a Magistrate to take cognizance under Section 190(1)(a) Cr.PC there should not only be a complaint, but it must constitute the offence. That necessarily means that the basic facts and materials on which the allegation is founded are required to be stated.
7. The next judgment relied upon by the learned advocate of the petitioners is (State qfHaryana v. Bhajanlal and Ors.). In the said judgment the Hon'ble Supreme Court has laid down the circumstances and the categories of cases in which the High Court in exercise of power under Article 226 of the Constitution of India or under ' Section 482 of the Code of Criminal Procedure may interfere with the proceedings relating to cognizable offences to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It was further held that such power should be exercised sparingly and that too in the rarest of rare cases. But in my considered view the present case does not come within the purview of any of such categories of cases,as mentioned in the said judgment. From the materials collected in the present case it can be safely said that a prima facie case is made out against the petitioners which is sufficient for the purpose of taking cognizance of the offence.
8. In the next judgment (Trilok Singh and Ors. v. Satyadeo Tripathi) the Hon'ble Supreme Court quashed the proceeding on the ground that the dispute between the parties were purely civil in nature. In the said case the dispute between the parties related to the purchase of a truck by the complainant on the basis of hire purchase agreement entered into between the complainant and the Finance Corporation. For failure to make the payment of instalment, the truck was seized from the complainant's possession. It was held by the Hon'ble Supreme Court that even assuming that the appellants either by themselves or in the company of some others went and seized the truck from the house of the complainant, they could and did claim to have done so in exercise of their bonafide right of seizing the truck on the respondent's failure to make the payment in time. As it was a bonafide civil dispute which led to the seizure of the truck, the proceeding was quashed by the Hon'ble Supreme Court. In my view, the aforesaid judgment is not applicable in the present case as the facts and circumstances of the said case is totally different from the present case.
9. Relying upon the aforesaid judgments it is submitted by the learned advocate of the petitioners that the present criminal proceeding should not be allowed to continue and the same is liable to be quashed. According to the learned advocate the allegations made in the FIR or the charge sheet and the materials collected in support of the same do not disclose the commission of any offence and make out any prima facie case against the accused persons. It is also submitted by him that on the self same facts the complainant filed a Civil Suit praying for similar relief and since the said civil suit is pending, the present criminal proceeding should be quashed on this ground alone.
10. Mr Sudipto Moitra, learned advocate appearing for the defacto complainant/opposite party submits that the allegations made in the FIR/ chargesheet and the materials collected in support thereof clearly make out an offence under Sections 420/341/120B of the Indian Penal Code and the learned Magistrate on being satisfied regarding the prima facie case took cognizance of the offence and issued process. At this initial stage this Court should not interfere with the proceeding on the grounds as agitated by the petitioners. Mr. Moitra submits that the complainant and his brother are the founder/directors of the company and they inducted the accused persons as directors and other office bearers of the said company. The accused persons on behalf of the company issued a letter in the name of the complainant and his brother intimating them that the resignation submitted by them was accepted by the Board. The complainant was surprised to receive such letter as he or his brother never submitted any resignation letter. Thereafter the complainant was again served with another letter wherein it was stated that the verbal resignation tendered by the complainant was accepted by the company and he was requested to send his resignation in writing. Mr. Moitra submits that all the accused persons entered into a criminal conspiracy and acted in such manner only to cheat the complainant and his brother and to grab the properties and assets of the company, of which the complainant and his brother were the founders. Mr. Moitra further submits that the accused persons also issued notices to the company's bankers asking them to delete the names of the complainant and his brother as official signatories of the company and in their place they also introduced two other persons to function as official signatories of the company. It is also alleged that the accused persons thereafter withdrew huge amount of money firm the State Bank of Hyderabad, Lansdowne Branch, Calcutta and misappropriated the entire amount. Mr. Moitra also submits that the offence under Section 341 IPC was also committed as the complainant and his brother being the directors of the company were wrongfully restrained from participating in the day-to-day affairs of the company.
11. Mr. Moitra next submits that merely because a Civil claim is maintainable, it does not mean that the criminal prosecution cannot be continued. At this initial stage it cannot be said that the allegations made in the FIR are false or frivolous. Merely on the ground that it may be a civil wrong the criminal proceeding should not be quashed.
12. Mr. Moitra relies upon a judgment of the Hon'ble Supreme Court reported in 2002 SCC (Cri) 593 (State of Karnataka v. M. Devendrappa and Anr.). It was held by the Hon'ble Supreme Court as follows:
"In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal. A note of caution was however, added that the power should be exercised sparingly and that too in rarest of rare cases."
13. Mr. Moitra also relies upon a judgment reported in 2002 Cal Cr.LR 237 (Kamala Devi Agarwal v. State of West Bengal). In the said judgment it was held by the Hon'ble Supreme Court that pendency of a civil proceeding in a different Court even though higher in status and authority cannot be made a basis for quashing of a criminal proceeding.
14. I have heard the learned advocates of the respective parties. I have also perused the judgments referred to above. In my considered view, as I have stated earlier in this judgment, a prima facie case is made out in the FIR, the chargesheet and the materials collected in support of such allegations, which are sufficient for proceeding further. The learned Magistrate on being satisfied regarding the prima facie case has taken cognizance of the offence and issued process against the accused petitioners. At this initial stage I do not find any reason to interfere with the said order of taking cognizance of offence.
15. As regards the pendency of the civil proceeding, it is the settled law that pendency of a civil proceeding cannot stand in the way of criminal prosecution. When any person suffers injury to his person, property or reputation, he may have remedies both under the civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute an offence under the criminal law. The aggrieved person may have a right to sue for damages or compensation and at the same time law permits the victim to proceed against the accused persons for having committed an offence under the criminal law. In this regard I find support and rely upon the judgment of the Hon'ble Supreme Court reported in 2002 Cal Cr.LR 237 (Kamala Devi Agarwal v. The State of West Bengal).
16. In view of the discussions made above I am of the view that this is not a fit and proper case for quashing of proceeding. Prayer for quashing of proceeding is accordingly refused. The present revisional application accordingly fails and the same is dismissed.
The interim stay earlier granted by this Court stands vacated. The learned Magistrate is directed to proceed with the matter and to see that the trial is expedited and the same is concluded with utmost expedition.