Calcutta High Court (Appellete Side)
Ranjit Singh Kothari vs The State Of West Bengal & Anr on 5 August, 2021
05.08.2021
Ct No. 34
SL. No. 5
PA
CRR 3044 of 2019
(Through Video Conference)
Ranjit Singh Kothari
-Vs.-
The State of West Bengal & Anr.
Mr. Ayan Bhattacherjee,
Mr. Sharequl Haque,
Mr. Prattay Khan
....for the petitioner
Mr. Arindam Jana,
Mr. Soumajit Chatterjee
.... for the opposite party no.2.
Mr. Saswata Gopal Mukherjee, Ld. P.P.
Mr. Arijit Ganguly,
Mr. Sandip Chakraborty,
....for the State.
The present revisional application has been
preferred against the judgment and order dated July 31,
2019 passed by learned Additional District Judge, Fast
Track Court No.1, Alipore, South 24 Parganas in Cri. Motion
No. 150 of 2018, wherein the learned Sessions Court while
exercising its revisional jurisdiction affirmed the order dated
January 18, 2018 passed by the learned Judicial
Magistrate, 6th Court, Alipore, South 24 Parganas in
connection with South Port Police Case No. 297 dated
October 12, 2011 corresponding to C.G.R. No. 3756 of 2011
under Section 120B/406/420 of the Indian Penal Code.
2
The present petitioner preferred an application
under Section 239 of Cr.P.C. praying before the Learned
Magistrate for discharging him from the case. The learned
Magistrate on consideration of the materials was pleased to
refuse the same and being aggrieved by the said order the
petitioner approached the Sessions Court thereby invoking
its revisional jurisdiction and the learned Sessions Court
was of the view that at the stage of consideration of charge,
according to the materials on record and the contents of the
Case Diary sufficient materials surfaced against the accused
person and as such did not find any illegality committed by
the learned Magistrate while passing the impugned order
and as such affirmed the order passed by the learned
Magistrate, thereby refusing the petitioner(s) to be
discharged from the case.
The subject matter of the case relates to an advance
payment of Rs.1.50/- crore advanced to the
accused/petitioners being made by electronic mode on
30.01.2011
, 18.01.2011 and 28.01.2011 for supplying of
pulses and in spite of receipt of the said amount the
accused/petitioners by entering into a criminal conspiracy
refused to supply the pulses/yellow peas and also refused to
refund the amount which was received by them. According
to the complainant he has been dishonestly induced by the
accused/petitioners and as such the accused persons not
only cheated him but also committed the offence of criminal
breach of trust.
In course of hearing of the revisional application
affidavits have been exchanged between the parties and in
fact, the Case Diary has been perused by this Court. It is
reflected from the ledgers which are part of the record of the
case that there were continuous business transactions
between the company belonging to the petitioners and that
of the complainant. Records also reveal that the total
transaction entered into by the petitioners and the
complainant/opposite party are more than eight/nine
occasions and it is the last transaction only wherein the
petitioners have failed to keep up to their commitments for
supply of the yellow peas/pulses as alleged.
Moreover, it is seen that the total transaction was
more than Eight Crores Rupees. Having regard to the settled
principles of law that there is a difference between
cheating/criminal breach of trust/breach of agreement and
if in a commercial transaction there are number of
transactions which have taken place and the majority of
commitments have been honoured and only because of
failure to keep up to a subsequent promise an individual is
impleaded in a criminal case the same should not be
allowed to continue.
In view of the aforesaid, I am of the opinion that the
further continuance of South Port Police Case No. 297 dated
October 12, 2011 corresponding to C.G.R. No. 3756 of 2011,
presently pending before the learned Judicial Magistrate, 6th
Court, Alipore, South 24 Parganas, is an abuse of the
process of the Court as the same is a commercial dispute
which has been converted into a criminal case, accordingly
the said proceedings before the learned Judicial Magistrate,
6th Court, Alipore, South 24 Parganas is hereby quashed.
Consequently the order dated July 31, 2019 is set
aside.
Mr. Jana, learned Advocate appearing for the
complainant has brought on record by way of
supplementary affidavit-in-opposition certain documents by
which Mr. Jana contends that these documents were not
collected by the Investigating Agency in course of
investigation from which it would reflect that the days on
which the petitioners collected the sum of Rs.1.5/- crore by
that time they have removed all the yellow peas and did not
have yellow peas/pulses in their custody. To that effect
other persons from whom the accused persons in this case
collected money have also made similar complaints and
cases have been registered in different police stations.
In view of the submissions so made by the learned
Advocate for the complainant/opposite party and the
proposition of law as spelt out by the Hon'ble Supreme
Court in Pramatha Nath Taluqdar -Vs. - Saroj Ranjan
Sarkar reported in AIR 1962 SC 876, I am of the opinion
that the complainant will be at liberty to prefer a complaint
case before the learned Magistrate on the basis of the new
materials which are in his custody presently. The learned
Magistrate will be at liberty to assess the materials and
thereafter would consider whether a case has been made
out for issuance of process.
The learned Magistrate apart from the aforesaid
judgment of the Hon'ble Supreme Court would also take
into account the judgment of Jatinder Singh and Ors. -Vs.
- Ranjit Kaur reported in (2001) 2 SCC 570, Poonam
Chand Jain and Anr. -Vs. - Fazru reported in (2010) 2
SCC 631 and Samta Naidu and Anr. -Vs. - State of
Madhya Pradesh and Anr. reported in (2020) 5 SCC 378
before issuance of process.
State is directed to hand over copies of the
documents which were collected in course of investigation to
the complainant and if any original is in custody of the
State, the complainant will be at liberty to take out proper
application for directing the learned Magistrate to release
the same in near future for the interest of the complaint
case which they would prefer, if so advised.
With the aforesaid observations C.R.R. No. 3044 of
2019 is allowed.
Pending Applications, if any, is consequently
disposed of.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
(Tirthankar Ghosh, J.)
