Calcutta High Court (Appellete Side)

Md. Mohsin @ Meghu Bhai & Ors vs The State Of West Bengal & Anr on 7 October, 2021

            IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL REVISIONAL JURISDICTION


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

C.R.R. 2518 of 2011

Md. Mohsin @ Meghu Bhai & Ors.

-vs.-

The State of West Bengal & Anr.

For the Petitioners         :   Ms. Rituparna De Ghosh
                                Ms. Siddhartha Paul


For the Opposite Party :        Mr. Sabyasachi Banerjee
                                Mr. Pawan Kr. Gupta



Heard on                :       27.07.2021,     28.07.2021,    17.08.2021,
                                23.08.2021,     31.08.2021,    06.09.2021,
                                09.09.2021, 17.09.2021 & 24.09.2021


Judgment on                 :   07.10.2021



Tirthankar Ghosh, J:-

The present revisional application has been preferred against the

judgment and order dated 17th March, 2011 passed by the learned

Additional Sessions Judge, Fast Track, 9th Court, Bichar Bhavan, Kolkata in

Criminal Appeal No. 120 of 2010, wherein the learned Appellate Court was

pleased to affirm the order of conviction and sentence dated 25th August,

2010 passed by the learned Metropolitan Magistrate, 8th Court, at Calcutta

in complaint case no. C/17283 of 2007.

The learned Magistrate was pleased to convict the present petitioners

under Section 420/34 of the Indian Penal Code and sentenced each of them

to suffer simple imprisonment for 2 years and to pay a fine of Rs.5000/- id.,

to suffer further simple imprisonment of 3 months for the offences

punishable under Section 420/34 of the Indian Penal Code.

The genesis of the case relate to a complaint being filed by the

authorized representative of one Arun Kumar Jhajharia, proprietor of M/s

Rashi Enterprise situated at 61, Muktaram Babu Street, Kolkata-700007,

against the petitioners being Md. Mohsin alias Meghu Bhai, Md. Jane Alam

alias Md. Jainuddin and Md. Manauar having their place of business at

167, Lenin Sarani, Chandney Market, 5th Gate, Kolkata-700072.

The relevant paragraphs of the complaint are set out as follows:

3. "That the accused no. 1 is the proprietor of M/s Chandney Foam House, a proprietory concern having its office and/or place of business at the above mentioned addresses. Accused nos. 2 and 3 are the sons of accused no. 1 who are in charge of and/or responsible for the conduct of the business of the said proprietory concern and they although transacted with the petitioner's concern during all the material times.

4. That the accused persons visited the petitioner's office and/or place of business and represented themselves as lucrative buyers of foam products and prompt Whole-seller and Retailer of quality foam materials and also expressed their interest to purchase foam

materials of diverse qualities and quantities from the petitioner's concern. The petitioner's master being impressed by such glossy and sparkling representation of the accused persons, took the accused persons to be prospective buyer of their foam products and agreed to enter into business transaction with them.

5. That the petitioner's master expressly and most unequivocally mentioned the strict condition in dealing with the accused persons that the price in respect of the sold materials would have to be paid forthwith the purchase. The accused persons most unhesitatingly accepted and agreed to such condition and very candidly undertook to pay the price of sold goods immediately after delivery. The petitioner states that they had no reason to disbelieve such candid representation of the accused persons and so believed such undertaking of the accused to be true and honest.

6. That thereafter the accused persons placed orders for sale and supply of some foam materials like 'sheets of flexible polyurethane foam' to the petitioner's concern and the petitioner's master accepted the said orders and accordingly sold and supplied such materials from time to time through respective invoices and in this way a total amount of Rs. 55,536/- became due and payable by the accused persons to the petitioner's concern.

7. The petitioner states that, but at the time of taking delivery of the sold materials accused persons very unexpectedly and quite suddenly represented to the petitioner's concern that due to sudden unforeseen financial crunch they were not in a position to forthwith pay the price and deeply persuaded the petitioner's master to allow them to take the delivery of the said goods with an undertaking to pay the entire price thereof within a day or two.

8. The petitioner's master, a honest and law-abiding citizen still could not recall the confidence reposed on the accused persons and had no reason to disbelieve their such smart categorical representations and undertaking and waited till 11.09.2007 believing patience to be a virtue.

9. That after a repeated references and reminders and deputations by the petitioner and other staffs of the petitioner's concern including Shri Shakil, Om Prakash and Kamalesh Sharma, inter alia, on 12.09.7002, 13.09.2007, 15.09.2007 and finally on 18.09.2007 and after their continuous follow-up, the accused persons flatly denied the entire transaction and refused to make any payment towards such liability to the petitioner's concern and threatened the petitioner, other staffs as well as their master with dire consequences if they would make any further demand of the said dues from them.

10. The petitioner states that since then all the accused persons have vanished into the blue and are utterly beyond the reach and contact of the petitioner's concern.

11. The petitioner respectfully states that the above facts utterly belie the aforesaid assurances and representations advanced by the accused persons and grossly manifest the dishonest design of the accused persons. Had the petitioner's master any such remotest scent of such evil and dishonest intention of the accused persons to cheat him, he would not have entered into any business transaction with the accused persons and part with and/or deliver them any such material.

12. The petitioner states that, if further reveals the very fact that the accused persons in pursuance to a dishonest intention and mens rea, had entered into a deep-rooted criminal conspiracy nurtured since the very inception to induce the petitioner's master by such misrepresentations and fake assurances to part with and delivery to the accused persons the sold materials and to criminally cheat the same and cause wrongful gain of themselves and wrongful loss to the petitioner's concern and in practicing that as an overt act of such conspiracy by such fake and false representations induced the petitioner's master to part with the said materials valued at Rs. 55,536/- and cheated the petitioner's concern of the same.

13. The petitioner also states that the accused persons after cheating the petitioner's concern to the tune of Rs. 55,536/- did not bother even to

manhandle the staffs and/or office-bearers of the concern and also threatened the petitioner with dire consequences both physical and material and as such all the accused persons are vulnerable prosecution under Section 506 of the Indian Penal Code."

Records reflect that the complainant in order to prove its case relied

upon the oral evidence of the complainant himself and number of

documents. The documents which were relied upon are (i) Ext.1, the petition

of complaint; (ii) Ext.2, the letter of authority issued by proprietor to the

person who represented M/s Rashi Enterprise; (iii) Ext.3, another letter of

authority which was issued to the complainant who substituted the original

complainant; (iv) Ext.4 & Ext. 5, are tax invoices; (v) Ext.6 & Ext. 7 are

Seller Copy.

Records do not reflect that after examination under Section 313 of the

Code of Criminal Procedure the defence examined any witness in support of

its case. As such in this case the evidence of PW1 and the documents relied

upon by PW1 is only relevant for consideration to come to a finding whether

the order of conviction and sentence so passed by the learned Magistrate

and affirmed by the learned Sessions Court by exercising its appellate

jurisdiction is correct. On perusal of the orders passed by both the learned

Trial Court and the learned Appellate Court I find that both the Courts

relied upon precedents and did not assess whether the precedents were

applicable to the facts of the case. I do not find any issue being dealt with by

both the Courts below regarding the contentions in the complaint in

paragraph 6 where it has been stated by the complainant that "...the

accused persons placed orders for sale and supply of some foam materials

like 'sheets of flexible polyurethane foam' to the petitioner's concern and the

petitioner's master accepted the said orders and accordingly sold and

supplied such materials from time to time through respective invoices..."

In a criminal case when the charges under Section 420 of the Indian

Penal Code are considered by a Court of law it was duty of the Court of law

also to check as to how many transactions took place between the parties or

whether this was a sole transaction. Further it was incumbent upon the

learned trial Court to find out whether the complainant has deviated from

the original case or the charge which was framed. In the evidence of PW1

Suman Roy, it has been categorically stated that "There is no signature of the

accused persons in Ext.4. There is no signature of the accused persons in

Ext.5". As such there was no reason for coming to a finding on the basis of

oral evidence in respect of the proprietorship firm of which it has been

categorically stated that Md. Mohsin alias Meghu Bhai is the proprietor; his

sons automatically would not be accused. A case under Section 420 of the

Indian Penal Code is based on documents and unnecessary petitioner no.2

and petitioner no.3 had been dragged in this case and have been asked to

face the ordeal of trial. The two tax invoices relied upon has reference to two

challan dated 02.12.2005 and 29.12.2005 in respect of amount Rs.

43,056/- and Rs. 12,480/-.

I do not find that the learned Magistrate while arriving at its finding of

conviction took into account the cumulative effect of the oral evidence and

the documents which have been admitted in evidence in support of the case

and sentenced the accused/present petitioners. The judgment of the

Appellate Court dated 17.03.2011 raises a doubt as to whether the Lower

Court Records or the evidences at all were perused, in fact, in a warrant

procedure case learned Appellate Court recorded that the accused persons

were examined under Section 251 of the Code of Criminal Procedure. None

of the Court below took into account whether an offence under Section 420

of the Indian Penal Code has been made out or not. The two issues which

are glaring on the face of the records but were not addressed by both the

Courts are as follows:

(i) Whether in a case of continuous commercial transaction the

provisions of Section 420 of the Indian Penal Code is

attracted?

(ii) Whether mere non-payment would attract the provision of

Section 420 of the Indian Penal Code?

In Hridaya Ranjan Prasad Verma -Vs.- State of Bihar, (2000) 4 SCC

168 the Hon'ble Supreme Court was pleased to observe :

"14. On a reading of the section it is manifest that in the definition

there are set forth two separate classes of acts which the person

deceived may be induced to do. In the first place he may be induced

fraudulently or dishonestly to deliver any property to any person.

The second class of acts set forth in the section is the doing or

omitting to do anything which the person deceived would not do or

omit to do if he were not so deceived. In the first class of cases the

inducing must be fraudulent or dishonest. In the second class of

acts, the inducing must be intentional but not fraudulent or

dishonest.

15. In determining the question it has to be kept in mind that the

distinction between mere breach of contract and the offence of

cheating is a fine one. It depends upon the intention of the accused

at the time of inducement which may be judged by his subsequent

conduct but for this subsequent conduct is not the sole test. Mere

breach of contract cannot give rise to criminal prosecution for

cheating unless fraudulent or dishonest intention is shown right at

the beginning of the transaction, that is the time when the offence is

said to have been committed. Therefore it is the intention which is

the gist of the offence. To hold a person guilty of cheating it is

necessary to show that he had fraudulent or dishonest intention at

the time of making the promise. From his mere failure to keep up

promise subsequently such a culpable intention right at the

beginning, that is, when he made the promise cannot be presumed."

In the case of Indian Oil Corpn -Vs.- NEPC India Ltd. & Ors., (2006) 6

SCC 736 the Hon'ble Supreme Court was pleased to observe, as follows :

"13. While on this issue, it is necessary to take notice of a growing

tendency in business circles to convert purely civil disputes into

criminal cases. This is obviously on account of a prevalent

impression that civil law remedies are time consuming and do not

adequately protect the interests of lenders/creditors. Such a

tendency is seen in several family disputes also, leading to

irretrievable breakdown of marriages/families. There is also an

impression that if a person could somehow be entangled in a

criminal prosecution, there is a likelihood of imminent settlement.

Any effort to settle civil disputes and claims, which do not involve

any criminal offence, by applying pressure through criminal

prosecution should be deprecated and discouraged. In G. Sagar

Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this

Court observed: (SCC p. 643, para 8)

"It is to be seen if a matter, which is essentially of a civil

nature, has been given a cloak of criminal offence. Criminal

proceedings are not a short cut of other remedies available in

law. Before issuing process a criminal court has to exercise a

great deal of caution. For the accused it is a serious matter.

This Court has laid certain principles on the basis of which the

High Court is to exercise its jurisdiction under Section 482 of

the Code. Jurisdiction under this section has to be exercised to

prevent abuse of the process of any court or otherwise to

secure the ends of justice.""

In the case of Vir Prakash Sharma -Vs.- Anil Kumar Agarwal & Anr.,

(2007) 7 SCC 373 the Hon'ble Supreme Court was pleased to observe, as

follows :

"14. What has been alleged in the complaint petition as also the

statement of the complainant and his witnesses relate to his

subsequent conduct. The date when such statements were allegedly

made by the appellant had not been disclosed by the witnesses of

the complainant. It is really absurd to opine that any such statement

would be made by the appellant before all of them at the same time

and that too in his own district. They, thus, appear to be wholly

unnatural."

Further in the case of Anil Mahajan -Vs.- Bhor Industries Ltd. & Anr.,

(2005) 10 SCC 228 the Hon'ble Supreme Court was pleased to observe, as

follows :

"9. In Alpic Finance Ltd. v. P. Sadasivan [(2001) 3 SCC 513 : 2001

SCC (Cri) 565] this Court was considering a case where the

complainant had alleged that the accused was not regular in

making payment and committed default in payment of instalments

and the bank had dishonoured certain cheques issued by him.

Further allegation of the complainant was that on physical

verification certain chairs were found missing from the premises of

the accused and thus it was alleged that the accused committed

cheating and caused misappropriation of the property belonging to

the complainant. Noticing the decision in the case

of Nagawwa v. VeerannaShivalingappaKonjalgi [(1976) 3 SCC 736 :

1976 SCC (Cri) 507] wherein it was held that the Magistrate while

issuing process should satisfy himself as to whether the allegations

in the complaint, if proved, would ultimately end in the conviction of

the accused, and the circumstances under which the process issued

by the Magistrate could be quashed, the contours of the powers of

the High Court under Section 482 CrPC were laid down and it was

held: (SCC p. 520, paras 10-11)

"10. The facts in the present case have to be appreciated in the

light of the various decisions of this Court. When somebody

suffers injury to his person, property or reputation, he may have

remedies both under civil and criminal law. The injury alleged

may form the basis of civil claim and may also constitute the

ingredients of some crime punishable under criminal law. When

there is dispute between the parties arising out of a transaction

involving passing of valuable properties between them, the

aggrieved person may have a right to sue for damages or

compensation and at the same time, law permits the victim to

proceed against the wrongdoer for having committed an offence

of criminal breach of trust or cheating. Here the main offence

alleged by the appellant is that the respondents committed the

offence under Section 420 IPC and the case of the appellant is

that the respondents have cheated him and thereby dishonestly

induced him to deliver property. To deceive is to induce a man to

believe that a thing is true which is false and which the person

practising the deceit knows or believes to be false. It must also

be shown that there existed a fraudulent and dishonest

intention at the time of commission of the offence. There is no

allegation that the respondents made any wilful

misrepresentation. Even according to the appellant, the parties

entered into a valid lease agreement and the grievance of the

appellant is that the respondents failed to discharge their

contractual obligations. In the complaint, there is no allegation

that there was fraud or dishonest inducement on the part of the

respondents and thereby the respondents parted with the

property. It is trite law and common sense that an honest man

entering into a contract is deemed to represent that he has the

present intention of carrying it out but if, having accepted the

pecuniary advantage involved in the transaction, he fails to pay

his debt, he does not necessarily evade the debt by deception.

11. Moreover, the appellant has no case that the respondents

obtained the article by any fraudulent inducement or by

wilful misrepresentation. We are told that the respondents,

though committed default in paying some instalments, have paid

substantial amount towards the consideration.""

Having regard to the principles settled by the Hon'ble Supreme Court

in cases of cheating under section 420 of the Indian Penal Code, the

following facts emerge at the end of the trial of the instant case:

i. An assessment of Ext.4, Ext.5, Ext.6 and Ext.7 reflect that

the first delivery was on or about 2.12.2005 and the second

delivery was on or about 29.12.2005.

ii. Going by the nature of allegations made in the petition of

complaint (relevant paragraphs referred to above) and the

narrations made there in, if there was a failure of payment in

the first week of December, 2005 without receiving payment

there should not be any delivery in the last week of

December, 2005.

iii. The same Magistrate was dealing with the instant case

(C/17283/2007) and also the other case C-8817/2008. Thus

on the face of it this is a case of supply of materials and non-

payment of the same.

iv. The issue of continuous business transactions as such

cannot be ruled out in the instant case, as also the factum of

isolated choosing some of the non-payments.

v. There were other witnesses who were named in the

complaint, but subsequently not relied upon at the time of

evidence, thus the initial representation as narrated in the

petition of complaint regarding the expressions for

inducement being not corroborated by the sole witness fails

to make out any case of cheating - as there is absence of

inducement, deception and willful misrepresentation and

only a case of subsequent failure to pay in respect of some of

the goods received has been made out.

Accordingly, the judgment and order so passed by the learned

Additional Sessions Judge, Fast Track, 9th Court, Bichar Bhavan, Kolkata in

Criminal Appeal No. 120 of 2010 affirming the order of conviction and

sentence so passed by the Learned Metropolitan Magistrate , 8th court ,

Calcutta in complaint case no. C/17283 of 2007 is hereby set aside.

Consequently, the petitioners are acquitted from all the charges. If

they are on bail they are to be discharged from their bail bonds.

Therefore, CRR 2518 of 2011 is allowed.

Pending application, if any, is consequently disposed of.

Department is directed to communicate this order to the Ld. Trial

Court and send the LCR forthwith to the Court below.

All parties shall act on the server copy of this judgment duly