Calcutta High Court (Appellete Side)

Pradip Bagla @ Pradeep Kumar Bagla vs M/S Duakem Pharma Private Limited on 4 February, 2021

                   IN THE HIGH COURT AT CALCUTTA

                 CRIMINAL REVISIONAL JURISDICTION

                             APPELLATE SIDE

Present:

The Hon'ble JUSTICE SUVRA GHOSH

                          C.R.R. No. 520 of 2018
                          (Via video conference)
                   Pradip Bagla @ Pradeep Kumar Bagla

                                  Versus

                  M/s Duakem Pharma Private Limited

      For the Petitioners    :      Mr. Ayan Bhattacharya, Adv.
                                    Mr. S.Haque, Adv.
                                    Mr. A R Tiwari, Adv.



      For the Opposite Party :      Mr. Supriyo Das, Adv.



     Hearing concluded on :         04-02-2021

     Judgment on             :      04-02-2021

SUVRA GHOSH, J. :-

   1.

In the present revisional application, order dated January 12, 2018 passed by the Learned Metropolitan Magistrate, 20th Court at Calcutta in connection with C.S. Case No. 0117617 of 2016 under sections 420/120B of the Indian Penal Code is assailed.

2. The petitioner's contention, in a nutshell, is that the opposite party lodged written complaint against him and another before the Learned Chief Judicial Magistrate, Calcutta, alleging inter alia, commission of offence punishable under sections 420/120B of the Penal Code to the

effect that the petitioner, being the Director, Chief Executive and/or person in charge, in control and/or responsible for the affairs of the company in the name and style of M/s Farmvile Agrovet Ltd. (arrayed as an accused in the complaint) approached the complainant/opposite party company for supplying pharmaceutical items accompanied by assurance of prompt payment. Sensing the hesitance of the complainant company to supply goods on credit, the accused made an initial payment of Rs. 25,000/- (twenty five thousand only) following which the complainant company supplied goods valued at Rs. 1, 80,496/- to the accused company which were duly received by the latter in good condition and commercially utilised. After adjusting the initial payment of Rs. 25,000/- (twenty five thousand only) a sum of Rs. 1, 55,496/- was due and the complainant company made repeated demands for clearance of such dues. Upon failure of the accused company to keep its promise, the complainant issued notice to the accused company addressed to the petitioner through its learned advocate on 02-11-2015 which was received by the accused company on 03-11-2015 despite which the accused company failed and neglected to clear the dues. The complainant company, therefore, lodged complaint against the accused company and the petitioner under sections 420/120B of the Penal Code.

3. The case was transferred to the court of learned Metropolitan

Magistrate, 20th Court, Calcutta and pursuant to issuance of

summons, the petitioner appeared before the said court and filed an

application praying for his discharge from the case under section 245

(2) of the Code of Criminal Procedure. Upon hearing the parties, the

learned trial court rejected the prayer of the petitioner by the order

impugned.

4. It is submitted on behalf of the petitioner that the petitioner is in no

way connected with the accused company and no offence has been

made out against him in the complaint. The thrust of the allegation in

the complaint is against the accused company and its Directors with

whom the petitioner has no nexus whatsoever.

5. The petitioner has referred to a decision of this court in Jully Techi &

Ors. Versus The State of West Bengal & Another reported in (2020)1 C

Cr LR (Cal) 222 and Anu Mehta & Others v/s Gunmala Sales Private

Limited & Another reported in (2015) 4 CAL LT 310 (HC) and has

prayed for his discharge from the case under section 245(2) of the

Code by setting aside the order impugned.

6. In raising serious objection to the contention of the petitioner, it is

submitted on behalf of the opposite party that the petitioner posed

himself to be the Director, Chief Executive, and/or person in charge,

in control and/or responsible for the affairs of the accused company

and approached the petitioner for delivery of goods in favour of the

accused company on credit. Learned Counsel for the opposite party

has further submitted that upon learning that the petitioner's son is

one of the Directors of the company and the petitioner does not

represent the company in any capacity, the opposite party has taken

out an application before the learned trial court under section 319 of

the Code praying for adding the Directors/office bearers of the

company as accused in the case.

7. Referring to paragraph 11 of the complaint, learned counsel has

stated that notice sent to the accused/petitioner by the complainant

company on 02-11-2015 was delivered to the petitioner on 03-11-

2015 and e-mails and other communications with regard to the

alleged transaction was made by the complainant with the accused/

petitioner who represented the accused company.

8. The petitioner appeared before the learned trial court pursuant to

process issued upon him under section 204 of the Code and such

process has not been challenged by the petitioner who in fact

appeared before the court in compliance with the same. Learned

Counsel has referred to the judicial authority in Bhushan Kumar and

another v/s State (NCT of Delhi) and another reported in AIR 2012

Supreme Court 1747. In the said judgment, the Hon'ble Supreme

Court has been pleased to observe that while issuing process under

section 204 of the Code, the Magistrate should form an opinion

regarding existence of sufficient ground for summons to be issued and

explicit narration of the same is not mandatory.

9. The said principle is not disputed. But at the same time, the

petitioner is not debarred from praying for discharge under section

245(2) of the Code merely on the ground that he chose not to

challenge the order issuing process upon him under section 204 of the

Code.

10. It is contended by the opposite party that it was the petitioner and

none else who dealt with the opposite party in connection with the

transaction in question and therefore cannot be absolved of the

liability.

11. I have considered submission made on behalf of the parties as well as

the documents placed before me.

12. It is candidly admitted on behalf of the opposite party that there is no

document which suggests representation of the petitioner on behalf of

the company and the petitioner was arrayed as an accused on the

impression that he was the Director thereof.

13. The Master data of the accused company filed by the petitioner also

discloses the name of the petitioner as the father of one of the

Directors of the company Umang Bagla and it is needless to say that

no liability pertaining to the company can be imposed upon the

petitioner merely on the ground of his son being one of the Directors

of the company. There is no document suggesting nexus or

involvement of the petitioner with the company or its functioning.

14. The notice/e-mail/ correspondence of the complainant company may

have been addressed to the petitioner but that does not necessarily

indicate that the petitioner dealt with the same as authorised

representative of the company or at all. Therefore allegation under

section 420/120B of the Penal Code as made out in the complaint

does not lie against the petitioner.

15. In Anu Mehta and others (supra) a Learned Single Judge of this court,

relying upon the authority in State of Haryana v/s Bhajanlal, AIR

1992 SC 604 dealt with the essence of section 482 of the Code. It

shall be useful to set out the relevant paragraph of the judgment:-

"Firstly, it must be understood that all defences and/or

documents in support thereof cannot be utilised by an

accused under section 482 Cr. PC to improbabilise the

basic averment that he was in control and in charge of the

day-to-day affairs of the Company at the time of

commission of the offence. The High Court under section

482 Cr. PC cannot hold a mini trial of all defences raised

by an accused based on disputed questions of fact and

the order of remand cannot be construed to vest such

jurisdiction on the Court as the petitioners would like me

to believe. It is only documents of sterling quality and

unimpeachable nature which can be relied upon at this

stage by an accused to quash a prosecution by

establishing the basic averment in the impugned

complaint is "patently absurd and inherently improbable"

rendering the prosecution and abuse of process of Court

as held in Category No. (5) of Para 108 of State of

Haryana v. Bhajanlal, AIR 1992 SC 604."