Calcutta High Court (Appellete Side)
Kingshuk Neogi vs The State Of West Bengal & Anr on 14 March, 2008
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice S.P. Talukdar C.R.R. No. 3039 of 2007 Kingshuk Neogi Vs. The State of West Bengal & Anr.
For the Petitioner: Mr. Debasish Roy,
Mr. Indrajit Dasgupta.
For the State: Mr. Swapan Kumar Mallick.
For Private O.P: Mr. Saswata Gopal Mukherjee.
Judgment on: 14.03.2008.
S.P. Talukdar, J.: Petitioner, Kingshuk Neogi, by filing the instant application under Section 482 of the Criminal Procedure Code sought for quashing of the proceedings arising out of Kotwali Police Case No.207/2007 dated 6.7.2007 corresponding to G.R. Case No.1053 of 2007 pending before the learned Court of Chief Judicial Magistrate, Jalpaiguri, under Section420/120B of the Indian Code.
The backdrop of the present case may briefly be stated as follows:-
The petitioner is one of the Directors of The Debijhora Tea Company Ltd. The O.P. No.2 namely Tarani Chakraborty is a supplier of pesticides carrying on his business in the name and style of Hi-Tech Organic Industry and has been supplying pesticides to the said company since 1999. He has been claiming that certain sum of money is due and payable from the said company. Such O.P. No.2 by letter dated 15.4.2004 addressed to the M/S. Debijhora Tea Company Ltd., demanded an amount of Rs.7, 15,500/- along with interest @ 24% per annum.
This was again followed up by an advocate's letter dated 27.5.2005. The said O.P. No.2 thereafter as complainant filed a written complaint on 6th of July, 2007 before the Office-in-Charge, Kotwali Police Station at Jalpaiguri. He alleged that he had supplied Agrochemicals to the said Company from 1999-2000 to 2002 when the outstanding was Rs.6, 65,952/-. He further alleged that during 2001, one of the Directors namely Kalyan Kumar Neogi, since deceased, borrowed an amount of Rs.1Lakh from him which was paid by the management of the Company by installments after he died in the year 2002. Such complainant alleged that during 31.12.2002 to 25.8.2004, the management/directors of the said Company did not make any payment. In the end of 2004 the complainant could collect some payments and the outstanding amount as on that date was Rs.3, 65,000/-. In the said written complaint, it was claimed that despite being repeatedly approached, the directors of the Company refused and neglected to make any payment whatsoever. Such continuous uninterrupted torture by not responding to the request for repayment of the money resulted in psychosomatic disorder. The complainant thus became sick. It was then claimed that he had been denied payment of an amount of Rs.3, 65,000/-.
On the basis of the said written complaint, the Officer-in-Charge of the Kotwali, Police Station, district Jalpaiguri started Kotwali Police Case No.207 of 2007 dated 6th of July, 2007 under Section 420/120B of the Indian Penal Code. The present petitioner being so implicated in the said case was arrested and was put under detention by the police authority. He was initially pressurized for payment of an amount of Rs.3,65,000/. In view of non-response to such undue request, he was formally arrested. He was, thereafter, let out on bail granted by the Court of learned Chief Judicial Magistrate, Jalpaiguri.
On 10th July, 2007, the petitioner's Association namely Indian Tea Planters' Association submitted a representation before the Superintendent of Police, Jalpaiguri against such arrest of the petitioner on allegations of non-payment of some outstanding dues for supplying chemicals to the Tea Garden. The transaction between the parties being purely commercial in nature and since admittedly payment had been made from time to time, there could be no reason for the police authority to be so active as to arrest the present petitioner.
In the complaint, the name of the present petitioner had been mentioned as one of the directors. The petition of complaint or any materials collected by the investigating authority by no stretch of imagination can make out a case under Section 420/120B of Indian Penal Code. As such, prayer has been made for quashing of the said proceedings in exercise of this court's power under Section 482 of the Code of Criminal Procedure.
Learned Counsel, Mr. Roy, appearing for the petitioner submitted that the allegation made in FIR could at best constitute a civil liability and in view of the fact that payment of the dues as claimed by the complainant were made from time to time, there can no justification for reading any 'guilty mind' on the part of the present petitioner. Mr. Roy, in this context, referred to the decision in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Anr., reported in (2007) 3 SCC (Cri) 370. The Apex Court in the said case held that where allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence, the complaint can be quashed. In fact, that is the settled principle of law. The case of Vir Prakash Sharma, however, was in the context of the complaint petition filed before the learned Court of Magistrate. The Apex Court while dealing with the said case placed reliance upon the decision of the case of Hiridaya Ranjan Prasad Verma and Anr. vs. State of Bihar and Anr., reported in 2000 SCC (Cri) 786. It is not in controversy that non-payment or underpayment of price of goods by itself does not amount to commission of offence of cheating or criminal breach of trust. As held in the case of Vir Prakash Sharma (Supra), it is essentially a civil dispute.
Ingredients of Section 420 of the Penal Code are as follows: -
(1) Deception of any person;
2(a) Fraudulently or dishonestly inducing that person
(i) to deliver any property; or
(ii) to consent that any person shall retain any property; or,
(b) finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
In the case of Hridaya Ranjan Prasad Verma (Supra) the Apex Court took into consideration the fact that the allegation in the complaint read as a whole not indicating, expressly or impliedly, any intentional deception on the part of the appellants right from the beginning of the transaction. In such view of the matter, it was held that continuation of the criminal proceedings would amount to abuse of the process of the court.
It cannot be disputed that mens rea is a necessary ingredient without which a breach of trust may not result in criminal breach of trust. In order to constitute an offence punishable under Section 420 of Indian Penal code, the dishonest intention must be shown to exist at the time of making of the inducement. Mr. Roy submitted that failure to keep up promise cannot be presumed as an act leading to cheating. This was the observation made by the Apex Court in the case of S.W.Palanitkar & Ors. vs. State of Bihar & Anr., reported in 2002 SCC (Cri) 129. Mr. Roy, as learned Counsel for the petitioner, further submitted that when ingredients of an offence in question conspicuously lacking in the complaint, allowing a criminal proceedings to continue would result in abuse of the process of court. In this context, Mr. Roy relied upon the decision in the case of Vijaya Rao vs. State of Rajasthan & Anr., reported in 2005 SCC (Cri) 1600. It was submitted that to bring home the offence of cheating it was to be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There being no allegation or any wilful misrepresentation or fraudulent inducement nor any element of deception in the whole transaction, it will be justified by this court to quash the criminal proceedings in exercise of this court's power under Section 482 of the Criminal Procedure Code. The decision in the case of Alpic Finance Ltd. vs. P. Sadasivan & Anr., reported in JT 2001 (2) SC 588 lends support to the aforesaid proposition. It was contended on behalf of the petitioner that in absence of material showing initial deception, there cannot be any offence of cheating. Mr. Roy also referred to the Apex Court decision in the case of Murari Lal Gupta vs. Gopi Singh (2006) 2 SCC (Cri) 430 as well as Ram Biraji Devi & Anr., vs. Umesh Kumar Singh & Anr., reported in JT 2006 (11) SC 133.
Reference was further made to the decision of the learned Single Bench of this court in the case of Dilip Chand Kankaria vs. State of West Bengal & Anr., reported in 2007 (1) CRR No.2622 of 2003 page 919.
Mr. Mukherjee appearing as learned Counsel for the complainant/O.P No.2 submitted that the criminal case had to be initiated in view of the reasonable apprehension that the accused persons were trying to sell out the Tea Garden. Mr. Mukherjee did not forget to mention that such complainant is a patient of renal cancer and he expressed shock in the manner such person had been dealt with by the accused person and others of the concerned Tea Garden. It was further submitted that this court in exercise of power under Section 482 of the Cr.P.C. can certainly quash a proceeding but it is to be done in rarest of the rare cases. Criminal proceeding cannot be quashed without proper and effective application of mind and in a casual or routine manner. The same is done only when it is satisfactorily established before the court that continuation of the proceedings will be an abuse of the process of court. Mr. S. K. Malick appeared as learned Counsel for the O.P./ the State of West Bengal and referred to the principles to be followed while considering the prayer for quashing a criminal proceeding.
After careful consideration of the entire facts and circumstances, I find it difficult to brush aside the grievances ventilated on behalf of the writ petitioner. It may be that O.P. No.2 is an unfortunate victim of breach of trust, it may be that his grievances regarding non-payment of money by the accused person and others of the concerned Tea Company are genuine. It is further sad that such O.P. No.2 since became a victim of cruel circumstance being a patient of renal cancer. But this cannot change the complexion of the case. Nobody denies that the complaint can very well knock the door of a civil court for redressal of his grievances but by no stretch of imagination, the facts and materials of the present case justify continuation of the proceedings for the offence under Section 420 read with 120B of Indian Penal Code.
It is worth mentioning that in course of hearing of the matter, attempts were made for exploring the possibility of an amicable out of court settlement. Such efforts ultimately did not yield any result.
For all such reasons, this court finds no option but to allow the present application under Section 482 of the Criminal Procedure Code. Thus, the case being Kotwali Police Case No.207 of 2007 dated 6.7.2007 corresponding to G.R. Case No.1053 of 2007 under Section 420/120B of the Indian Penal Code pending before the learned Court of Chief Judicial Magistrate, Jalpaiguri be quashed. The petitioner/accused person, namely, Kingshuk Neogi, accordingly be discharged from the case and be released from bail bond at once. Send a copy of the judgment to the learned Trial Court for information and necessary action.
Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for the parties as expeditiously as possible upon due compliance with the legal formalities.
(S.P. Talukdar, J.)