Satyabrata Pradhan vs State Of West Bengal & Anr
2021 Latest Caselaw 238 Cal

In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present:

The Hon'ble Justice Subhasis Dasgupta.

CRR No. 1623 of 2020

Satyabrata Pradhan Vs.

State of West Bengal & Anr.

For the Petitioner       :Mr Sudipta Moitra, Sr. Counsel
                         Mr. Soumen Dutta, Adv.
                         Mr. Subhadeep Chatterjee, Adv.


For de facto             :Mr. Jayanta Kumar Das, Adv.
Complainant/             Mr. Gourav Das, Adv.
Opposite Party No. 2     Mr. Madhumati Das, Adv.


For the State            :Mr. Saibal Bapuli, Ld. A.P.P.
                         Mr. Arijit Ganguly, Adv.
                         Mr. Arani Bhattacharyya, Adv.

Heard on                 : 11.01.2021

Judgment on              : 19.01.2021



Subhasis Dasgupta, J:-

This court is called upon to address a prayer for quashing of

proceedings pending in the court of Learned Judicial Magistrate, Dantan,

Paschim Medinipur, in connection with G.R. Case No. 2130 of 2011 under

Sections 406/420 of the Indian Penal Code, in application of the provisions

contained in Section 482 of the Code of Criminal Procedure.

Learned senior counsel for the petitioner, Mr. Sudipta Moitra, submitted

that further continuance of proceedings in the court below even after

commencement of trial would be an abuse of process of the court, keeping in

view the money, alleged to have been cheated, had already been liquidated by

petitioner to the bank, which was taken as loan by the wife of the opposite

party no. 2. It was contended by Mr. Moitra that there could not be any

culpability survived against the petitioner with the liquidation of loan amount

to bank justifying initiation of a prosecution under Sections 406/420 I.P.C.

Argument was raised by Mr. Moitra that being a beneficiary of loan

amount, though sanctioned in favour of the wife of opposite party no. 2,

petitioner had already paid entire loan amount to the bank together with

interest accrued thereon resulting in no pecuniary loss to the opposite party

no. 2/wife of de facto complainant, as alleged to have been sustained.

Mr. Moitra, further attacking prosecution case submitted that the entire

prosecution case founded upon the assertion of the wife of opposite party no.

2, namely Chhanda Pattanayak, who remained unexamined, though cited in

the charge-sheet, as dependable witness, but prosecution story would not

stand reaching finality on her absence ultimately. The further attack

incidental to the principal thrust was that the bank from which loan was

obtained never claimed to have been cheated in this case for the alleged

conduct of petitioner, exposing the bank to go for recovery of loan amount

issuing necessary notice and other incidental steps.

As regards the charge framed under Section 406 I.P.C. against the

petitioner, Mr. Moitra, learned senior counsel for the petitioner contended that

in the instant case there had been no entrustment of property to the

petitioner, which he had ultimately converted to his own use for his personal

gain, and as such the charge under Section 420 I.P.C. being consequential to

406 I.P.C. would automatically fail.

Upon taking such grounds, Mr. Moitra proposed for quashing of the

pending proceedings.

Mr. Bapuli submitted that though the name of Chhanda Pattanayak had

been shown, as one of the witnesses of prosecution in the charge-sheet, but

her statement admittedly could not be recorded under Section 161 Cr.P.C. It

will amount to pre-judge the trial as to whether prosecution case would stand

or not in the absence of statement of wife of the opposite party no. 2, ignoring

the materials, referred above, already collected during investigation, and

mentioned also in the memo of evidence. Therefore, ongoing trial should not

be disturbed even on the ground of absence of the statement of wife of the

opposite party no. 2 remaining unrecorded under Section 161 Cr.P.C. during

investigation.

Mr. Bapuli countered the submissions of Mr. Moitra submitting that at

this stage the prayer for quashing of proceedings would not be encouraging

one on the simple score that there had been already commencement of trial

with the framing of charge and the next date being fixed on 19th January,

2021 for evidence.

It was challenged by Mr. Baupli that mere liquidation of the loan

amount, would not ipso facto exonerate the petitioner from the instant

criminal prosecution, for the loan amount was unlawfully sanctioned with the

active connivance of some people in the bank by showing opposite party no. 2,

and his wife as co-borrower against their wishes, after procuring some

documents, favourable to the purpose of sanctioning loan amount, behind the

back of the wife of opposite party no. 2 and the opposite party no. 2 himself.

As regards the criminality on the part of the petitioner, contended to be

missing in the instant case, Mr. Bapuli answered that the criminality could be

found to exist at the very beginning, when a false sale of land agreement

mentioning a fictitious description of land, proposed to be sold to the wife of

opposite party no. 2 by petitioner himself, claiming therein petitioner to be the

recorded owner of such land, which in course of investigation turned out to be

untrue, and it was just sufficient for the present purpose not to frustrate the

proposed quashment.

Challenge was further shown by Mr. Bapuli for the State that

investigation had already collected sufficient materials, and particularly some

documents going against the petitioner, and those documents, if considered

together, would revel that petitioner himself admitted his guilt executing a

document that he had realised/obtained the loan amount to himself showing

the opposite party no. 2 and his wife as co-borrowers, and accordingly

undertook to repay the same with interest accrued thereon, and thus

proposed quashment, if allowed, would stifle the prosecution case.

Learned advocate for the private opposite party no. 2 adopted the

submission of Mr. Bapuli contending that for the advancement of trial, the

proceedings should not be quashed even after liquidation of the bank money.

Before addressing the points raised by the rival parties mentioning of

relevant facts, in precise, would be of some relevance.

The opposite party no. 2 is a headmaster of a school and his wife is an

assistant teacher of a different school, while the petitioner is a teacher of

another school. Both the opposite parties and petitioner had their previous

acquaintance with each other, for they belong to same teachers' association.

Previously the petitioner/accused helped the wife of the opposite party no. 2 in

obtaining home loan from a co-operative bank to the tune of Rs. 25,000/-

(Rupees Twenty Five Thousand) in 2002, wherein the petitioner voluntarily

stood as a guarantor. Such loan amount had already been liquidated by the

opposite party no. 2. Since, petitioner stood as a guarantor in the loan,

sanctioned in the name of wife of the opposite party no. 2 with the collection of

some signatures of wife of opposite party no. 2 in some of blank forms of the

bank, the petitioner by reason of his previous acquaintance approached the

wife of opposite party no. 2 to stand as a guarantor of a loan, to be sanctioned

in the name of petitioner threreby requiring the wife of opposite party no. 2 to

put her signature on some bank papers, produced by petitioner. The wife of

opposite party no. 2 innocently put her signature, as a guarantor to the loan

transaction to be sanctioned from ICICI bank in favour of petitioner. One fine

morning the wife of opposite party no. 2 received notice from bank requiring

her to pay off the loan, sanctioned in her favour for failure of petitioner to

liquidate the loan amount within the scheduled time.

A salish was called in the locality, when petitioner admitted his guilt

stating that he had realised the loan amount showing the name of the

opposite party no. 2 and his wife as co-borrowers. The loan amount even

thereafter not being liquidated, a further notice was issued by the bank,

addressed to the wife of opposite party no. 2, to take over possession of

mortgaged property with some land description, not belonging to the

addressee of the notice. Having thus discovered the fraudulent and dishonest

intention on the part of petitioner, a case came to be registered under the

behest of Section 156(3) Cr.P.C.

Police undertook investigation, collected several documents and

submitted charge-sheet thereafter.

Admittedly, there has been commencement of trial with the framing of

charge under Sections 406/420 I.P.C. against the accused, and next date is

fixed on 19th January, 2021, for collection of evidence.

The simpliciter allegation against the petitioner is that

petitioner/accused had cheated the opposite party no. 2 and his wife by

showing them as co-borrowers against their wishes behind their back, and

subsequently got the bank loan sanctioned and disbursed in his favour under

the guise of selling land to the wife of opposite party no. 2 furnishing fictitious

land particulars.

Let me address the issue surfacing over the absence of criminality on

the part of petitioner/accused so as to involve him in the instant case, though

he had liquidated the entire loan amount with interest accrued thereon being

a beneficiary to the sanctioned amount.

Referring a decision reported in 2019 (2) SCC 689 delivered in the case

of C.B.I. New Delhi Vs. B.B. Agarwal & Ors., Mr. Moitra learned senior

counsel for the petitioner submitted that with the liquidation of loam amount

by the petitioner being a beneficiary to the sanctioned loan, there left no live

issue survived requiring adjudication any more.

In the case referred above, two Ltd. companies were alleged to have

defrauded two Nationalised Banks to the tune of Rs. 15 Crores (approx.)

releasing public issues of the companies, and in connection therewith, there

was resettlement of accounts, when the parties obtained consent Decree from

DRT, and paid the entire sum leaving no live issue survived requiring

adjudication anymore.

Mr. Bapuli, learned advocate representing State submitted that the

decision referred above would be without any relevance in the given facts and

circumstances of this case.

The case in hand is patently distinguishable on the ground that there

was no compromise effected between the parties leading to emergence of a

consent decree. The judgment referred above by Mr. Moitra is thus

distinguished on facts. Mere liquidation of sanctioned loan amount together

with interest accrued thereon would not cause all issues surfaced over the

instant case to go away requiring no adjudication anymore.

Reliance was further placed by Mr. Moitra on a decision reported in

1996 (11) SCC 622 rendered in the case of Guru Bipin Singh Vs.

Chongtham Manihar Singh & Anr., to establish that when the offence

under Section 406 I.P.C. would not stand upon for want of its necessary

ingredients, Section 420 I.P.C. being consequential offence would also fail

automatically.

Challenge was raised by Mr. Bapuli contending that the judgment

referred above would not be applicable in the given context of this case, as the

offence under Section 420 I.P.C. is the principle offence in the instant case,

and which itself can stand irrespective of 406 I.P.C.

The prime allegation raised against the petitioner is targeted against

Section 420 I.P.C., and in that view of the matter, the ongoing trial itself can

determine presence or absence of ingredients of both the offences under

Section 406 and 420 I.P.C., already charged with. The court is thus not

prepared to accept the contention of Mr. Moitra on such score holding 420 to

be consequential to 406 I.P.C. in the instant case.

Mr. Moitra proceeded to derive capital by referring judgments reported

in JT 2019 (3) SC 420 delivered in the case of Prof. R.K. Vijayasarathy &

Anr. Vs. Sudha Seetharam & Anr. and (2019) 2 C Cr LR (SC) 22 rendered

in the case of Satishchandra Ratanlal Shah Vs. State of Gujrat & Anr., to

show that ingredients constituting the offence were absolutely missing in the

instant case justifying a criminal prosecution for the alleged cheating, and for

committing criminal breach of trust, unless fraudulent or dishonest intention

was shown to exist right at the beginning of the loan transaction so as to

constitute the so called mens rea on the part of petitioner, without which

continuance of the proceeding is contrary to the provisions of law.

Mr. Bapuli reacted to the decisions referred above and replied that the

trial would itself reveal presence or absence of materials required in a case,

when charge had already been framed for the collection prima facie materials

against the petitioner/accused.

Mens rea being the crux of the offence, complained of, would be best

determined after holding a full trial with collection of evidence, to be adduced

by either of the parties to this case. When there was a document already

collected by the Investigating Agency showing admission of guilt, and

furnishing an undertaking thereafter to repay the loan amount, for the same

having been realised by the petitioner himself, together with bank document

revealing disbursement of sanctioned loan amount in favour of the

petitioner/accused, pursuant to a sell agreement of land by petitioner to the

wife of opposite party no.2 containing mis-particulars of the land involved in

the proposed sell of land, being furnished by petitioner himself, which

ultimately revealed to be false one, the fraudulent intention since inception, or

not would be easily determinable after holding a trial, when such documents

could be duly appreciated under the provisions of law.

The judgments so referred by Mr. Moitra on such issue would thus be

without any significance.

Citing further decision Mr. Moitra, reported in 2005 SCC (Cri) 1600

delivered in the case of Vijaya Rao Vs. State of Rajasthan & Anr. and also

taking support of petition under Section 156(3) Cr.P.C. contended that

presence of words like "fraudulently and dishonestly" without revealing the

commencement of the same, so as to reveal the criminal intention, would not

itself justify the prosecution for its furtherance, what was alleged to have

happened in the instant case.

As before, Mr. Bapuli challenged such decisions opining it to be

irrelevant.

Giving a solitary look to some of the words in the complaint petition,

without having a look at the entire facts and circumstances of a case

incorporated in the petition of complaint, would not be suffice to reveal

required criminal intention on the part of the petitioner. The averments of

complaint in its entirety together with documents collected after being duly

appreciated in evidence would only be determinative of required essence of the

offence, irrespective of presence or absence of words like "fraudulently and

dishonestly". There are other materials to be looked into, which are likely to be

ascertained with the collection of evidence during trial.

The judgment thus referred on such issue by the petitioner is not

acceptable.

Emphasis was supplied by Mr. Moitra for filing instant application for

quashment even after commencement of the trial taking resort to a decision

reported in 2019 Cri. L. J. 1297 delivered in the case of Anand Kumar

Mohatta & Anr. Vs. State (Govt. of NCT of Delhi) Department of Home &

Anr., wherein it was held that the abuse of process caused by F.I.R. stood

aggravated if F.I.R. had taken form of charge-sheet after investigation for want

of necessary ingredients constituting the offence.

Mr. Bapuli, restricted his stand in the similar manner, as before,

describing the judgment to be without any relevance.

Mr. Jayanta Kumar Das, learned advocate for the opposite party no. 2

proceeded to reinforce the stand of Mr. Bapuli representing State that mere

payment of the loan amount, would not itself be a ground for quashment for a

criminal proceeding, because the culpable intention of the petitioner got

demonstrated at the very beginning of loan transaction, when loan amount

was disbursed in the name of petitioner after furnishing a false sale agreement

for a land to wife of opposite party no. 2. and reliance was placed accordingly

on the issue referring a decision reported in 2014 4 CHN 535 delivered in the

case of Ajay Prasad Khaitan alias Ajay Khaitan Vs. The State of West

Bengal & Ors.

As regards the scope of Section 482 Cr.P.C. pertaining to the quashment

of proceeding, learned advocate for the opposite party no. 2 Mr. Jayanta

Kumar Das sought to make reliance upon a decision reported in 2017 SCC

Online Cal 7067 delivered in the case of Ashok Kr. Todi Vs. C.B.I. With

Pradip Kr. Todi Vs. C.B.I. With Anil Saraogi Vs. C.B.I. With Ajoy Kumar

Vs. C.B.I. With C.B.I. Vs. Ajoy Kumar & Ors. With Rukbanur Rahaman

Vs. C.B.I. & Ors. With S.M. Mohiuddin @ Pappu Vs. C.B.I. wherein the

scope of Section 482 Cr.P.C. was delineated.

After perusal of the materials already collected in the C.D. together with

memo of evidence brought forth before court, it appears that undoubtedly

there has been liquidation of loan amount with the interest accrued thereon

by the petitioner himself, this aspect needs to be appreciated as to what

prompted him to get the loan sanctioned in the name of borrowers, though

disbursed in the name of petitioner, upon production of a sale agreement,

furnishing fictitious particulars of a land, which never belonged to petitioner.

This court cannot dispute that prayer for quashing is not entertainable even

after submission of charge-sheet. Indisputably, the charge framed against the

petitioner so far could not be challenged earlier. But the most significant fact,

material to the determination of this case, is the presence or absence of

criminality/criminal intention on the part of petitioner needs evaluation in

context with documents collected, and such appreciation would be perfectly

done in trial.

Since charge under Section 420 I.P.C. can itself stand alone for the

fulfilment of its ingredients, it would be without any significance whether

charge under Section 406 will stand or not ultimately. More so offence under

Section 420 I.P.C. being independent of Section 406 I.P.C. and not a

consequential to the offence under Section 406 I.P.C. in the given facts and

circumstances of this case, there lies no justification to frustrate the ongoing

trial allowing the proposed quashment.

The power under Section 482 Cr.P.C. without any controversy can only

be exercised under extreme circumstances like viz. (a) to give effect to an order

under the code, (b) to prevent abuse of the process of the court, (c) to

otherwise secure the ends of justice.

Having considered the rival submissions of the parties, it appears that

though there had been liquidation of loan amount by the petitioner, but the

manner in which the loan was sanctioned in the name of persons other than

petitioner and getting thereafter the sanctioned amount disbursed in the name

of petitioner, needs to be duly appreciated in the trial.

Since there was sufficient prima facie materials, as discussed herein

before, the court is not agreeable to the stand of Mr. Moitra, so as to accede to

quashment, as proposed.

The prayer for quashing is refused. The revisional application fails and

accordingly dismissed.

The trial be held expeditiously, providing sufficient opportunity of

hearing to either of the parties to this case.

Learned Prosecutor is directed to co-operate with smooth and

expeditious trial of this case, producing witnesses on the date so schedule by

the trial court, so that there could be effective utilisation of dates by recording

the evidence of witnesses in ensuring expeditious disposal.

With this observation and direction, the revisional application stands

disposed of.

Office is directed to communicate this order to Court below without

making any delay. The Case Diary be returned forthwith.

Urgent photostat certified copy of this judgment, if applied for, be given

to the appearing parties as expeditiously as possible upon compliance with all

necessary formalities.

(Subhasis Dasgupta, J.)