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The Indian Penal Code
Section 406 in The Indian Penal Code
Section 420 in The Indian Penal Code
Section 138 in The Indian Penal Code
The Negotiable Instruments Act, 1881

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Calcutta High Court
Gautam Banerjee vs State Of West Bengal on 27 August, 2004
Equivalent citations: 2005 (2) CHN 318
Author: P Sinha
Bench: P Sinha

JUDGMENT

P.N. Sinha, J.

1. This revisional application has been preferred by the petitioner praying for quashing the proceeding of Section K2 Case No. 169 dated 12.6.01 i.e. Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729 of 2001) under Section 406/420 of IPC and the order dated 18.12.02 passed by the learned Chief Metropolitan Magistrate (hereinafter called the CMM), Calcutta thereby issuing warrant of arrest against the petitioner in connection with the aforesaid case.

2. Learned Advocate for the petitioner contended that the de facto complainant-cum-informant Monohor Agarwal previously filed a complaint against this petitioner in the Court of the learned CMM which was registered as complaint case C/2409 of 2001 under Section 138 of the Negotiable Instruments Act (hereinafter called the N I Act) alleging that the accused petitioner issued two cheques one bearing No. 004722 dated February 19, 2001 for Rs. 4,00,000.00 and another cheque bearing No. 004723 dated February 26, 2001 for Rs. 4,86,464.45 both drawn on UCO Bank, Kankurgachi Branch in favour of the de facto complainant company towards value of the goods delivered to petitioner and in discharge of liability. The said two cheques were dishonoured when reported by the bank with the remark 'exceeds arrangement'. After serving legal notice and when the accused petitioner did not pay the said amount of cheques the complainant filed the complaint under Section 138 of the N I Act and the said case is now pending before the learned Metropolitan Magistrate, 12th Court, Calcutta. The said complaint case was filed on 22.5.01. Thereafter again on 12.6.01 the same complainant lodged FIR before the Shakespeare Sarani P. S. under Section 406/420 of IPC against this petitioner for criminal breach of trust and cheating in respect of the same amount and the same cheques for which he earlier filed the complaint case C/2409 of 2001. In the first complaint which the de facto complainant filed there was no mention of cheating.

3. The subsequent complaint/FIR filed by the de facto complainant over same matter and same facts in respect of same cheques is bad in law and the second complaint is mala fide. Accordingly, continuation of the criminal proceeding started on the basis of 2nd complaint/FIR started on the basis of Shakespeare Sarani P. S. case by the complainant is an abuse of the process of Court and second complaint being mala fide is not maintainable. The said criminal proceeding which arose out of second complaint being Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729 of 2001) now pending in the Court of the learned CMM, Calcutta should be quashed and the order of the learned Magistrate dated 18.8.01 and 18.12.02 issuing warrant of arrest against the petitioner should also be set aside. The second complaint is nothing but filed with mala fide intention to harass this petitioner. In the complaint the de facto complainant nowhere disclosed about inducement or intention of this petitioner to cheat him right from beginning of transaction. When there was no allegation of inducement or intention to cheat from beginning elements of Section 406 or Section 420 of IPC do not lie at all. In support of his contention he cited the decisions reported in 1995 C Cr. LR (Cal) 210, M.S. Natarajan v. Ramasis Shaw and Anr.; 2000 C Cr. LR (SC) 136, G. Sagar Suri and Anr. v. State of U. P. and Ors.; 1986(3) Crimes 143, Asit Das v. Jagadish Chandra Saha and Anr.; JT 2003(1) SC 418, Ajay Mitra v. State of M. P. and Ors.; 1974 Cr. LJ 352, Hari Prasad Chamaria v. Bishnu Kumar Surekha and Ors.; 2000 C Cr. LR (SC) 293, Hridaya Ranjan Pd. Verma and Ors. v. State of Bihar and Anr. and 2000(2) CHN 863, Murari Mohan Kejriwal and Ors. v. State of West Bengal.

4. Learned Advocate for the de facto complainant opposite party contended that the conduct of this petitioner accused from the very inception of the transaction will establish that there was inducement and intention to cheat. In the instant matter let the police proceed with investigation and submit report in final form. The accused petitioner has not only closed his business place and shop but has also fled away from his house and his whereabouts is unknown. This conduct establishes that the petitioner had intention to cheat the de facto complainant right from beginning. The cheques paid by the petitioner were dishonoured and bounced and, when the complainant tried to find him out and went to his business place it was noticed that the petitioner has closed his business place and the shop and fled away. Elements of breach of trust and cheating is clearly attracted in the instant case and conduct of the petitioner establishes it. In the decision of G. Sagar Sari (supra) the matter came to the High Court after submission of chargesheet and thereafter the matter went upto the Supreme Court. In the instant case the investigation has been stopped by the order of this Court. The second complaint is based on different elements of offence and is not barred at all.

5. Learned Advocate appearing for the State contended that the materials so far collected during investigation, before the investigation was stayed by the order of this Court, clearly reveal that there are elements of cheating against the petitioner. The FIR clearly discloses cognizable offence and naturally investigation should not be stopped by this Court. The Supreme Court in several decisions has made it clear that investigation cannot be thwarted at the earliest stage and invoking of inherent jurisdiction under Section 482 of the Cr. PC to quash FIR should be exercised in the rarest of rare case and Court cannot enquire into genuineness or reliability of the FIR at the early stage of investigation. Materials collected during investigation shows that there are prima facie materials to proceed further with the criminal proceeding against the petitioner. The investigation should be allowed to be continued with and the order passed by this Court staying investigation should be vacated. There is no merit in the revisional application and accordingly it should be dismissed. In support of his contention he cited the decision , G. Sagar Suri and Anr. v. State of U. P. and Ors.

6. I have duly considered the submission of the learned Advocates of the parties and perused the revisional application and the annexures made thereto and also materials lying in case diary regarding investigation that was made before this Court stayed investigation. It is admitted that the de facto complainant Monohar Lal previously filed a complaint on 22.5.01 before the learned CMM, Calcutta being Case No. C/2409 of 2001 under Section 138 of the N I Act against this petitioner. In the said complaint it was alleged that this accused petitioner issued two cheques bearing Nos. 004722 dated 19.2,01 for Rs. 4,00,000/- and 004723 dated 26.2.01 for Rs. 4,86,464.45 totalling Rs. 8,86,464.45 both drawn on UCO Bank, Kankurgachi Branch in favour of petitioner company towards value of the goods supplied by the de facto complainant to accused petitioner and in discharge of the liability. It is clear that in the said case summons was issued and the said case is pending before the learned Metropolitan Magistrate, 12th Court, Calcutta. It is also admitted that the same de facto complainant filed FIR on June 12, 2001 to Shakespeare Sarani P. S. and on the basis of it Shakespeare Sarani P. S. Case No, 169 dated 12.6.01 was started against this petitioner under Section 406/420 of IPC and in this police case the amount involved is same which amount is involved in the first complaint filed by this petitioner. The nature of allegations in both the complaints are almost identical and it is clear that the second complaint was lodged when the complainant detected that this petitioner has closed his shop or business place and was also not found in the house and has concealed his presence. In the previous complaint it was alleged that the two cheques issued by the accused petitioner amounting to Rs. 8,86,464.45 when presented to bank for encashment were dishonoured and the complainant filed a complaint before the learned CMM, Calcutta for initiating a proceeding under Section 138 of the N I Act and the said complaint being case No. C/2409 of 2001 is now pending before the learned Metropolitan Magistrate, 12th Court, Calcutta.

7. The crux for consideration is now whether the FIR lodged by the de facto complainant at Shakespeare Sarani P. S. against the petitioner under Section 406/420 of IPC amounts to abuse of the process of Court and being the second complaint whether the said criminal proceeding is liable to be quashed. In support of his contention Mr. Bagchi referred to the decisions as mentioned earlier. The decisions cited by him namely M.S. Natarajan (supra), G. Sagar Suri (supra), Asit Das (supra), Ajay Mitra (supra), Hariprasad Chamaria (supra), Hridayranjan Pd. Verma (supra) and Murari Mohan Kejriwal (supra) clearly reveal that in order to attract cheating the ingredients of fraudulent or dishonest intention from the beginning of the transaction should be there. Mere failure to keep up the promises does not constitute offence of criminal breach of trust and cheating. In G. Sagar Suri (supra) and in Murari Mohan Kejriwal (supra) almost similar type of facts were there. In the said reported cases cheques issued by the accused persons were dishonoured for which the complaint under Section 138 of the N I Act were filed. In G. Sagar Suri (supra) the complainant subsequently filed a complaint under Section 406/420 IPC and the Supreme Court quashed the subsequent proceeding under Section 406/420 of IPC. In Murari Mohan Kejriwal cheques were dishonoured but, the de facto complainant started a case under Section 406/120B of IPC and this Court directed the learned Magistrate to re-examine the issue whether an offence under Section 138 of the N I Act transpires and if the learned Magistrate is satisfied, the learned Magistrate was directed to proceed with the case under Section 138 of the N I Act instead of proceeding with case under Section 420/120B of IPC. In G. Sagar Suri after the cheques were dishonoured the complainant only lodged complaint under Section 138 of the N I Act and did not mention Section 406/420 of IPC in the complaint. The Apex Court of India came to the finding that there was no material of inducement or fraudulent or dishonest intention right from the beginning of the transaction, and being so, there was no element of cheating and accordingly the second complaint under Section 406/420 of IPC was quashed.

8. In the instant case also it appears that there was business transaction between the de facto complainant and the accused petitioner for the last few years. The accused petitioner issued two cheques bearing No. 004722 dated 19.2.01 for Rs. 4,00,000.00 and cheque No. 004723 dated 26.2.01 for Rs. 4,86,464.45 in favour of de facto complainant company Patton Limited. The cheques were dishonoured and the complainant after serving demand notice lodged the complaint being Case No. C/2409 of 2001 under Section 138 of the N I Act against the accused petitioner, when the accused petitioner in spite of service of demand notice did not pay the amount of cheques. In the petition of complaint the petitioner nowhere disclosed that the accused petitioner had the fraudulent and dishonest intention right from the beginning and there was inducement at the initial stage of transaction. The FIR i.e. the second complaint is almost on same line and in the FIR also it was mentioned that the cheques issued by the accused petitioner were dishonoured. The de facto complainant then went to the office of the accused petitioner and found that the accused petitioner has closed his office and disappeared from his business place and was also not found in the office. Both the complaints reveal that there was business transaction between the de facto complainant and the accused for the last 6 years and the accused was dealing with the de facto complainant company well and also earned good faith. The averments made in both the complaints makes it clear that there was no element of inducement by the accused petitioner to the complainant opposite party at the initial stage. Dishonour of cheques after business transaction of several years does not constitute elements of inducement or fraudulent or dishonest intention right from the beginning. Therefore, in the instant case there was no ingredient of Section 406/420 of IPC.

9. It is clear that already a case under Section 138 of the N I Act is pending against the petitioner. If the de facto complainant can establish his case for the alleged offence under Section 138 of the N I Act the accused petitioner will suffer consequences if offence is under Section 138 of N I Act is proved against him. The aforesaid discussion makes it clear that there was no inducement or fraudulent or dishonest intention on the part of the accused petitioner right from the beginning of transaction when the averments of both the complaints discloses that during the business transaction the accused earned a good faith. That being the position ingredients of Section 406/420 of IPC are absent in the instant case and being so starting of the second complaint i.e. FIR giving rise to Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 is bad in law.

10. Section 482 of Cr. PC empowers High Court to prevent abuse of the process of Court and to secure ends of justice. Continuation of the proceeding of Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729/01) under Section 406/420 of IPC is clearly an abuse of the process of law and the said criminal proceeding against the accused petitioner for those alleged offence is liable to be quashed. Accordingly, criminal proceeding being Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729/01) under Section 406/420 of IPC now pending before the learned CMM, Calcutta is hereby quashed. All the orders including the order dated 18.12.02 passed by the learned CMM thereby issuing warrant against the accused petitioner in connection with the said G. R. Case No. 1729 of 2001 being bad in law are set aside.

11. The complaint case being C Case No. 2409 of 2001 which is now pending before the learned Metropolitan Magistrate, 12th Court, Calcutta requires to be expedited and if in the said case the accused petitioner is not appearing or, is not represented under Section 205 of Cr. PC, the learned Metropolitan Magistrate, 12th Court, Calcutta would be free to issue warrant of arrest to secure his arrest and appearance before him for the continuation of the said complaint proceeding. If in the complaint case this accused petitioner is appearing before the learned Metropolitan Magistrate, 12th Court, Calcutta there is no need of issuing warrant of arrest against him. As the complaint case is of 2001 learned Metropolitan Magistrate, 12th Court, Calcutta is directed to take utmost endeavour regarding disposal of the case as expeditiously as possible.

12. The revisional application accordingly succeeds and is allowed and disposed of in the light of the observations made above.

13. All interim orders passed earlier stand vacated when the main revisional application has been disposed of.

14. Send a copy of this order to the learned Chief Metropolitan Magistrate, Calcutta and learned Metropolitan Magistrate, 12th Court, Calcutta for information and necessary action.

15. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.