Md. Mohsin @ Meghu Bhai & Ors vs The State Of West Bengal & Anr
2021 Latest Caselaw 5520 Cal

                       IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL REVISIONAL JURISDICTION


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

C.R.R. 2520 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. 119 of 2010, wherein the learned Court was pleased to

dismiss the appeal and 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/8817 of 2008.

The learned Magistrate after convicting the present petitioners under

Section 420/120B of the Indian Penal Code was pleased to sentence them to

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

suffer further simple imprisonment for 3 months for the offences punishable

under Section 420 of the Indian Penal Code and further sentencing them to

suffer simple imprisonment for 6 months each and to pay a fine of

Rs.3000/- id., to suffer simple imprisonment for 3 months for commission of

offence punishable under Section 120B of the Indian Penal Code.

The initiation of complaint case no. C/8817 of 2008 was on the basis

of a complaint filed by M/s Rashi Enterprise by its authorized agent against

the present petitioners. The relevant paragraphs of the allegations made in

the petition of complaint are set out as follows:

3. " That the accused no. 1 is the proprietor of M/s Chandney Foam House, a proprietorship 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 proprietorship 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 on 03.01.2006 vide Invoice and Challan No.RE/207/05-06 dated 03.01.06 for an amount of Rs. 61,889.00.

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 for a considerable period of time.

9. That after a repeated references and reminders and deputations by the petitioner and other staffs of the petitioner's concern 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, it 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. 61,889/- and cheated the petitioner's master of the same.

13. The petitioner respectfully states that by such dishonest and criminal acts the accused persons have warmly invited the charge and prosecution of criminal cheating and conspiracy punishable under Sections 420 read with Section 120B/34 of the Indian Penal Code."

The prosecution in order to prove its case relied upon one witness

namely, the complainant i.e. Suman Roy introducing himself as the

authorized representatives of Rashi Enterprise.

The documents which have been relied upon are Ext.1, the petition of

complaint; Ext.2, letter of authority; Ext.3, Seller copy (Challan) and Ext.4,

Tax Invoices. On perusal of the records of the case it is found that the

defence did not examine any witness in support of its case. On scrutiny of

the evidence of PW1 it reflects that the witness has categorically deposed

that the accused persons received the goods after signing the challan. The

said issue of signing the challan was confronted by the learned advocate for

the petitioner as the signature of the individual which is appearing over the

printed word "placed and returned" do not reflect that any of the accused

persons have signed the same. No proper explanation was offered in respect

of the Ext. 3 i.e. challan/seller copy. I have also taken into account the

submissions advanced by the petitioners as well as complainant/opposite

party in this case and scrutinized the judgment delivered by the learned

Magistrate and I do not find that any analysis has been made regarding the

oral evidence or the documentary evidence which was relied upon by the

prosecution. It is unfortunate that the series of judgments which has been

referred to in the final arguments before the learned Magistrate have been

referred, but regarding their applicability to the present case the learned

Magistrate has not offered any reason. There is no answer as to what

materials appeared against the accused persons, the case being under

Section 420 of the Indian Penal Code presumably certain documentary

evidence were required for the prosecution to prove its case. The trial Court

unfortunately miserably failed to assess the evidence in a case under

Section 420 of the Indian Penal Code where the basic principles also is to

prove beyond reasonable doubt. I have also scrutinized the judgment of the

learned Appellate Court and with great regret I am of the opinion that the

learned Appellate Court also did not peruse the Lower Court Records before

arriving at its finding, otherwise in a warrant procedure case the learned

Sessions Court would not have recorded that the accused were examined

under Section 251 of the Code of Criminal Procedure. The learned Appellate

Court also affirmed the order of conviction and sentence without

appreciating the principles of proof beyond all reasonable doubt and shifted

the onus upon the defence.

Perusal of the petition of complaint also reflect that at the time of

filing of petition of complaint the complainant, in fact, relied upon three

more witnesses and the said witnesses were never produced before the Trial

Court in support of the prosecution, their production could have thrown

light regarding the order being placed. There are no documents in support of

the prosecution case as to why the petitioner no.2 and petitioner no.3 had

been dragged in this case and have been asked to face the ordeal of trial in

the criminal case.

Apart from the fact that there were no documents supporting the case

regarding the delivery of the goods, the larger issues which are involved in

the instant case are:

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

provision of Section 420 of the Indian Penal Code is

attracted?

(ii) Whether some 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."

Taking into account the settled principles of law as set out

hereinabove and the fact of the present case which reflects that the

prosecution has failed to prove the factum of the alleged delivery of the

goods to the concern of the petitioner no.1, I am of the view that the learned

Magistrate and the learned Appellate Court have wrongly appreciated the

facts of the case and arrived at their conclusion, thereby convicting the

present petitioners and sentencing them. As the complainant has failed to

prove the case before the learned Court, there is no scope for convicting the

present petitioners.

Accordingly, the order so passed by the learned Additional Sessions

Judge, Fast Track, 9th Court, Bichar Bhavan, Kolkata in Criminal Appeal

No. 119 of 2010 dismissing the appeal and affirming 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/8817 of 2008 is

hereby set aside.

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

they are on bail they are to be discharging from bail bonds.

Therefore, CRR 2520 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

downloaded from the official website of this Court.

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

supplied to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)