Calcutta High Court (Appellete Side)
In Re : Amal Kumar Dey vs State Of Gujarat And Anr.( A. I. R 2001 Sc ... on 3 March, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 03-03-11
2 (s.d) .
C.R.R. 2018 of 2008 Re : An application under section 401/482 of the Code of Criminal Procedure filed on 16-06-08.
In re : Amal Kumar Dey .........Petitioner. Mr. Sabir Ahmed Mr. U. N. Betal ........for the petitioner. Mr. Abhra Mukherjee ........for the Opposite Party. Mr. Swapan Kumar Mallick ........for the State.
This is an application under 401/482 of the Code of Criminal Procedure taken out by Sri Amal Kumar Dey praying for quashing of the entire proceedings in Compliant Case No. CR. Case No. 535/07 pending in the Court of Chief Judicial Magistrate, 2nd Court, Tamluk, Purba Medinipore on the ground that the learned court erred in issuing process under Section 204 Cr. P. C against him although no prima facie case under Sections 420 and 383 I.P.C is made out against him.
The opposite party no. 1 Asish Bhowmik filed one petition of complaint in the court of the Ld. C. J. M., 2nd Court, Tamluk, Purba Medinipore ( CR 535/07) against six persons including the present petitioner, Amal Kumar Dey alleging therein that the petitioner gave order to supply the building materials like Grill, Shutter etc. to the complainant ( hereinafter referred to as the 'O. P. No. 1') who, pursuant to that order supplied the materials worth of Rs.72,000/- to the present petitioner. That transaction continued from 2001 to 2003. The O. P. No. 1 time to time collected money from the petitioner for the materials supplied by him. But, Rs.72,000/- remained outstanding. The O. P. No. 1 requested time and again to make payment of that money, but for this reason or that reason, the petitioner delayed the payment. But, ultimately, on 21-08-07, the petitioner called on the O. P. No. 1 in his shop for the purpose of making payment of dues. Accordingly, he had been to the shop of the petitioner and as soon as he demanded Rs.72,000/-, the 2 petitioner and other accused persons named in the petition of compliant forced him to put signature on a blank paper despite protest. Thereafter, the O. P. No. 1 was man-handled and threatened of dire consequences. As soon as the O. P. No. 1 came out of the shop room of the petitioner, he found some persons standing outside of the shop. Before he disclosed everything to them, the petitioner and his associates took them inside the shop room and obtained their signatures also on blank papers. Thereafter, however, he could disclose the fact to them and on their advice, he went to Tamluk Police Station on 24-08-07 and brought the matter recorded into general diary of the police station. Apprehending that the petitioner and his associates may cause monetary loss to him, he lodged the petition of compliant in the court on 03-09-07.
The ld. Magistrate upon recording initial statements of the complainant and other witnesses found himself not satisfied as to existence of any prima facie case to take recourse of the Section 204 of the Criminal Procedure Code. The ld. Magistrate preferred to inquire further into the matter and for that purpose, the Tamluk Police Station was directed to make an enquiry and submit a report. The matter was inquired into and a report was submitted by the Tamluk Police Station.
The Ld. Magistrate unsuccessfully tried to settle the matter amicably as the parties expressed their desire to do so. The ld. court had taken up the matter on 28-02-08 and upon perusal of the petition of complaint, initial statements of the witnesses and report under Section 202 Cr. P. C submitted by the Tamluk Police Station discharged all the accused persons, excepting the petitioner against whom, the ld. Magistrate found that a prima facie case has been established under Sections 142/384/120 I. P. C. Accordingly, process was issued under section 204 Cr. P. C against the present petitioner herein, who has challenged that order and prayed for quashing of the entire proceedings on the grounds mentioned earlier.
Mr. Mukherjee, learned counsel appearing for the opposite party refers a decision of the Hon'ble Apex Court in S. M. Datta -Vs- State of Gujarat and Anr.( A. I. R 2001 SC 3253) and submits that F. I. R /petition of compliant should be read as a whole and should be indicative of an offence broadly. He draws my attention to the view of the Hon'ble Supreme Court that F. I. R ought not to be thwarted at the initial stages unless the materials do not disclose any 3 offence. He takes me to the petition of compliant as well as the initial statements made by the complainant and one witness and submits that although the ingredients of offence under Section 420 I. P. C is lacking, there is sufficient materials suggesting, prima facie, commission of an offence under Section 383 of the Indian Penal Code. Therefore, the entire proceeding is not required to be quashed as prayed for and this court should not exercise its extraordinary powers under Section 482 Cr. P. C in such a case.
Mr. Ahmed, learned counsel for the petitioner submits that if the petition of complaint is read as a whole, it neither discloses any offence whatsoever under Section 420 I. P. C nor under Section 383 of the I. P. C. There was business transaction between the petitioner and the de facto complainant since 2001 to 2003. The paragraph 5 of the petition of compliant discloses clearly that the petitioner made payment time and again and Rs.72,000/- remained outstanding. The dispute cropped up over that outstanding payment, the alleged incident of man-handling and obtaining signature on paper for the purpose of preparing money receipts of Rs.72,000/- took place on 28-08-07, the G. D was entered with a local police station on 24-08-07 and the petition of compliant was lodged in the court of Ld. Chief Judicial Magistrate on 03-09-07. No explanation, whatsoever, has not given for the inordinate delay. The report of the Tamluk Police Station, which has been appended to the petition as Annexure 'P-2' shows that no evidence, in fact, could be collected by the police officials who inquired into the matter. It appears also from the materials placed before this Court that the petition of compliant has been filed in the Court of the Ld. Chief Judicial Magistrate, Tamluk on mere apprehension.
The power under Section 482 Cr. P. C can well be exercised either to prevent the abuse of the process of the court or otherwise to secure the ends of justice. It can be exercised where the allegations made in the compliant or F. I. R, even if are taken at their face value and accepted in their entirety do not constitute, prima facie, any offence against the accused. That view taken up by the Hon'ble Apex Court in the State of Haryana -Vs- Chowdhury Bhajan Lal( A. I. R 1992 SC 604) has still been followed by all the courts including Hon'ble Apex Court and reiterated in the decision referred to by Mr. Abhra Mukherjee, learned counsel for the opposite party and the decision of the Hon'ble Court in Dinesh B. Patel & Ors. -Vs- State of Gujarat( 2011(1) SCC Cri 147 ).
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What is to be seen is whether the materials placed before this Court, if are taken on their face value and accepted in reality constitutes, prima facie, any offence or not. Herein, no offence under Section 420 I. P. C is, prima facie, made out. The allegations of the offence under Section 383 I. P. C, however, can be said to be made out, prima facie, because according to the F. I. R and the initial statements, some signatures of the complainant were taken forcibly on some papers putting him in fear which may be used or may not be used as valuable security. The fact whether he was compelled to deliver such signed papers which may be converted into a valuable security under threatening of dire consequences is a question of fact which is to be determined in course of trial.
Therefore, in my opinion, the entire proceeding is not required to be quashed as prayed for at this initial stage where the Magistrate, upon consideration of everything, has issued process against the petitioner no. 1. The order impugned is modified to the extent that the ld. Court is directed to proceed with this case against the petitioner for committing an offence under Section 384 of I. P. C, instead of under sections 182/384/420 I. P. C. In the premises above, the petition is disposed of.
Interim order, if any, stands vacated.
Criminal Section is directed to supply urgent photostat copy of this order, if applied for, to the parties with usual undertaking.
( Kanchan Chakraborty, J. )