Kajal Chandra Bag vs State Of West Bengal & Anr
2022 Latest Caselaw 1985 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL REVISIONAL JURISDICTION

Before:

The Hon'ble Justice Ananda Kumar Mukherjee


                             C.R.R. 672 of 2014

                             Kajal Chandra Bag

                                      -Vs-

                         State of West Bengal & Anr.



For the Petitioners :        Mr. Soumen Kumar Dutta, Adv.
                             Mr. Subhadip Chatterjee, Adv.
                             Ms. Arpita Kundu, Adv.


For the State :              Mr. Sudip Ghosh, Adv.
                             Mr. Apurba Kumar Dutta, Adv.
                             Mr. Bitasak Banerjee, Adv.


Heard on :                   21.02.2022.



Judgment on:                  13.04.2022.



     Ananda Kumar Mukherjee, J. :-

1.

Petitioner has filed this application under section 482 of the Code of

Criminal Procedure praying for quashing of the proceedings in connection with

G.R. Case No. 526 of 2006, arising out of Tamluk Police Station Case No. 164

of 2006 under sections 419, 420, 403, 406, 182 of the Indian Penal Code in

connection with M.P. Case No. 21 of 2006, pending before the learned Chief

Judicial Magistrate, Purba Midnapur at Tamluk.

2. Sadhana Das (Opposite Party No. 2) lodged a complaint before the

learned Chief Judicial Magistrate, Purba Midnapur praying for directing the

police to register the same as FIR under section 156(3) of Cr. P.C. It has been

alleged in her petition that Purnima Bhowmik, her unmarried sister who was

working in the leprosy department under District Health Department. Expired

on 08.07.2001 and claimed herself to be the legal heir of her sister. The de

facto complainant prayed before the Health Department that she is the

nominee of her deceased sister and that she came to know that one Kajal Bag

the present petitioner on producing false documents claimed himself to be the

husband of Purnima Bhowmik and withdrew Rs. 2,53,394/- as Death benefits

of Purnima Bhowmik. It has been alleged in the written complaint that Kajal

Bag was an unmarried person. He never married Purnima Bhowmik and did

not reside with her as husband and wife has withdrawn the service dues of her

deceased sister. The matter was informed to the office of her deceased sister

but there was no response from them. On the basis of the complaint lodged by

Opposite Party No. 2 through court, Tamluk Police Station Case No. 164 of

2006 was registered.

3. Initially final report was submitted on 29.09.2006. On 07.11.2009

Opposite Party No. 2 prayed for further investigation by C.I.D. On 22.11.2006

learned Magistrate directed further investigation. On 05.09.2007 police again

submitted final report on 24.08.2007. Thereafter, on 06.01.2009 a petition was

filed by Opposite Party No. 2 for further investigation. On 04.02.2010 police

submitted charge sheet bearing no. 36 dated 02.02.2010 under sections 419,

420, 468, 471 and 182 of the Indian Penal Code against the accused petitioner.

This gave rise G.R. Case No. 526 of 2006.

4. It is claimed by the petitioner in his application that he married Purnima

Bhowmik on 13.12.2000 and thereafter, he resided with her as husband and

wife in the rented house of Chandi Charan Das at Tamluk. A certificate was

issued by the Chairman, Tamluk Municipality dated 30.07.2001 that they were

residing together as husband and wife. Further case of the petitioner is that

Purnima was seriously ill and was taken to Vallore hospital for her medical

treatment. Railway tickets, admission records, discharge certificates would go

to establish that she was married with the petitioner. Furthermore, Purnima

Bhowmik executed a Will in favour of the petitioner during her life time on

03.04.2001. After the death of Purnima on 08.07.2001 in a relative's house of

Opposite Party No. 2 under Purosottampur Gram Panchayat, her dead body

was cremated under the said Panchayat and both the petitioner and Opposite

Party No. 2 prayed for the death certificate. After hearing both sides, the

Pradhan issued a death certificate of Purnima Bhowmik which has been

produced as annexure 'K'. The petitioner filed a Will Probate Case before the

court of Civil Judge (Junior Division 1st Court), Tamluk on 01.08.2001 bearing

J. Misc Case No. 29 of 2001 and the same is pending before the court for

adjudication.

5. Admittedly, Opposite Party No. 2 is the sister of the deceased and she

manage to obtain a Death Registration Certificate from the Gram Panchayat of

Podumkhana, P.S. Nanda Kumar and posed as the only legal heir of her

deceased sister. In such manner she has withdrawing the money of her

deceased sister kept at bank and post office.

6. The petitioner filed a criminal case against Opposite Party No. 2 and her

associates being, Panskura Police Station Case No. 92 of 2002 dated

17.08.2002 and the case was registered as 5 C of 2003 under sections 406,

420, 120B, 404 by 149 of the Indian Penal Code but the case was quashed by

this Hon'ble Court.

7. The petitioner in course of time filed an application before West Bengal

Administrative Tribunal praying for releasing the death benefits due to his

deceased wife who was a government employee. The application was registered

as OA 645 of 2002. On 12.07.2002 the Tribunal was pleased to dispose of the

case in favour of the petitioner. On the basis the order passed by the Tribunal

petitioner received Rs. 2,60,779/- in four phases in the year 2003. The

opposite party no. 2 filed an application before the District Magistrate for

issuing a legal heirship certificate. On 10.07.2007 the District Magistrate

issued legal heir certificate in favour of the Opposite Party No. 2 without

hearing the petitioner. Against the said order the petitioner file a Writ Petition

bearing no. 3568 (W) of 2008 before this court on 27.02.2008, wherein learned

Hon'ble Single Bench of this court disposed of the application and directed the

District Magistrate to conclude the proceeding upon hearing all the concern

parties.

8. The District Magistrate thereafter passed an order, against which the

petitioner preferred another Writ Petition bearing no. 28537 (W) of 2008 before

this court. Hon'ble Court on hearing the Writ Petition, stayed the order of

District Magistrate and directed the petitioner to deposit the entire amount

received by him from the Chief Medical Officer of Health in a fixed deposit

account. The said Writ Petition is still pending the petitioner thereafter,

deposited the entire money amounting to Rs. 2,61,000/-.

9. The petitioner also filed an application before learned Civil Judge,

Tamluk for an injunction against the order passed by the District Magistrate

and the same has been allowed. The copy of the order has been filed as

annexure 'P' while those proceedings were pending before different courts, a

charge sheet has been submitted against the petitioner without proper

investigation.

10. The petitioner asserting his right as legal heir of Purnima Bhowmik filed

a suit bearing OS no. 91 of 2008 before the court of Learned Civil Judge,

Junior Division, at Tamluk, praying for a declaration and injunction against

the brothers and sisters of deceased Purnima Bhowmik. In that suit the

petitioner prayed for a declaration that he is the legally married husband and

only legal heir of Purnima Bhowmik (Bag) since deceased and defendant no.1 to

5 are not the legal heir of Purnima Bhowmik.

11. Being aggrieved and dissatisfied with the proceedings in G.R. Case No.

526 of 2006, the petitioner has preferred his revisional application, praying for

quashing the proceedings in G.R. Case No. 526 of 2006, arising out of Tamluk

Police Station Case No. 164 of 2006 under section 419, 420, 403, 406, 182 of

the Indian Penal Code, on the grounds inter alia, that police submitted charge

sheet against the petitioner without proper investigation and continuation of

the proceedings before learned Magistrate would be an abuse of the process of

court. It is also contended that the charge sheet filed by in the case is defective

and proceeding on the basis of such faulty investigation is bad in law. The

petitioner urged that final reports were submitted in this case on two earlier

occasions but by influencing the investigating agency the present charge sheet

has been submitted. Further case of the petitioner is that delay in filing the

complaint has not been consider and the same has not been explained by the

complainant. According to the petitioner the materials in the charge sheet do

not disclose any offence against the accused person as such the criminal case

against the petitioner is liable to be quashed at the threshold.

12. At the time of hearing the petitioner filed a supplementary affidavit

enclosing Xerox copy of Death certificate of Purnima Bhowmik dated

31.07.2001, certificate issued by chairman-in-council from the office of Tamluk

Municipality, a certificate issued by Pradhan Amalhanda Gram Panchayat,

Sabhapati, Panskura-II Paschim Samiti, Xerox copy of medical documents of

Purnima Bhowmik issued from Christian Medical College and Hospital

voucher. A copy of order passed by Additional District Magistrate

(Development) Purba Midnapur dated 31.10.2008 in compliance with order

dated 27.02.2008 passed by Hon'ble Justice Dipankar Dutta (as his Lordship

then was) in Writ Petition No. 3568 (W) of 2008 and a copy of plaint in OS No.

91 of 2008.

13. Learned advocate for the petitioner argued that the petitioner is the

legally married husband of deceased Purnima and their marriage was

solemnized on 13.12.2000. It is further submitted that the petitioner lived with

Purnima Bhowmik as husband and wife in the rented house of Chandi Charan

Das at Tamluk. The petitioner also relied upon several certificate issued by

Amalhanda Gram Panchayat, member and chairman in council of Tamluk

Municipality as well as Sabhapati, Panskura-II Panchayat Samiti where

Purnima Bhowmik has been certified to the wife of Kajal Chandra Bag.

14. It is submitted on behalf of the petitioner that after the death of Purnima

Bhowmik on 08.07.2001, the petitioner approach the State Administrative

Tribunal and filed an application being OA No. 645 of 2002, praying for

necessary direction to the CMOH- Midnapur (East) to release the death benefits

admissible under the rules to the applicant Kajal Chandra Bag. On the basis of

such order of the Tribunal the Chief Medical Officer disbursed Rs. 2,61,000/-

in favour of the petitioner in four phases. After lapse of a long time, on

18.04.2006 Sadhana Das the sister of Purnima Bhowmik lodged a complaint

before Tamluk Court on the basis of which police registered a case against

Kajal Chadra Bag and submitted charge sheet in the year 2010.

15. Learned advocate for the petitioner vehemently argued that the

complaint has been lodged by the sister of the deceased after a long period

without explaining the delay and on the basis of such complaint no proceeding

should be initiated and continued against the petitioner.

16. Learned advocate argued that the petitioner has filed a Civil suit bearing

OS No. 91 of 2008, seeking an injunction against the brothers and the sisters

of the deceased so that they may not claiming themselves to be the legal heir of

his deceased wife. It is contended that the dispute involved in this matter is

relating to the question of legal heirship, in respect of the estate of the

deceased and any criminal proceeding continued over this dispute would be an

abuse of the process of court. In support of his argument learned advocate for

the petitioner relied upon a decision in the case of Kapil Agarwal and others

Vs. Sanjoy Sharma and others, where the Hon'ble Supreme Court in Criminal

Appeal No. 142 of 2021 held that "inherent jurisdiction under section 482 Cr.

P.C and/or under article 226 of the constitution is designed to achieve salutary

purpose that criminal proceeding ought not to be permitted to degenerate into

weapon of harassment. When the court is satisfied that criminal proceeding

amounts to an abuse of process of law or that it amounts to bring pressure

against accused in exercise of inherent powers, such proceeding can be

quashed."

17. It is further submitted by learned advocate for the petitioner that after

the death of Purnima Bhowmik a death certificate was issued by the Sub-

register, Birth and Death, Purusottampur G.P Office on 31.07.2001 where from

it would appear that his name figures as the husband of the deceased.

18. As regards the alleged receipt and the death benefit of Purnima

Bhowmik, it is submitted that as per direction of the Hon'ble Court in Writ

Petition No. 28537 (W) of 2008 the petitioner has deposited the entire amount

of Rs. 2,61,000/- before the cashier, High Court Appellate Side, Calcutta and

to that effect he has filed a Xerox copy of chalan.

19. On the basis of the above facts and circumstances learned advocate for

the petitioner prayed for quashing of the criminal proceeding pending against

the petitioner.

20. Learned advocate for the State in reply argued that Purnima Bhowmik

was never married. She was employed as Health Assistant in the leprosy

department at Tamluk MLCU, Purba Midnapur. Her service record would

indicate that opposite party no.2, the sister of the petitioner, is her nominee in

the service records. Purnima Bhowmik died as a spinster and the Death

Registration Certificate collected in course of investigation would clearly

indicate that she died at Podumkhana. Her father's name has been mentioned

in the death certificate as late Indu Bhusan Bhowmik but the name of the

petitioner does not appear as her husband. It is contended that the petitioner

has fraudulently impersonated before different authorities that he is the

husband of the deceased and has withdrawn the death benefits of Purnima

Bhowmik and cheated the actual legal heirs and the employer. It is argued that

from the very inception the petitioner induced various office and employing

authority of Purnima to pay him that death benefits of Purnima Bhowmik on

the basis of forged documents and thereby has also cheated Opposite Party

No.2, the nominee of the deceased.

21. Learned advocate for the State/Opposite Party No.1 drew my attention to

various contents in the Case Diary where Bela Maity and Rekha Bag, the two

sisters of the petitioner stated that their brother lived in the same house with

them but he had never married any person by the name of Purnima Bhowmik.

The two sisters of the petitioner in their statement under Section 161 of Cr. P.C

stated that the other brother Pulin Bag is a supporter of a political party of

which Kajol Bag is also an active supporter and he has claimed himself to be

the husband of one Purnima Bag in order to receive her death benefits.

22. Learned advocate for the state contended that there is sufficient

materials in the Case Diary to substantiate the allegation against the petitioner

and there is no reason for considering the subject matter of this case to be a

civil dispute. It is contended that the petitioner by adopting fraudulent means

has withdrawn the death benefits of Purnima Bag from her employer and in

addition to that he has also received the family pension dues of Purnima Bag

upto March 2012. In violation of the spirit of the order of Hon'ble Court in writ

petition no.28537(W) of 2008, where the petitioner was directed to deposit the

entire amount received by him from the Chief Medical Officer of Health, Purba

Midnapur, or otherwise as heirs of the said deceased in a fixed deposit account

with any nationalized bank and make over a photostat copy of the receipt

thereof within the period of fortnight from date.

23. It is urged that the petition praying for quashing of the criminal

proceeding is devoid of merit and the same is liable to be dismissed.

24. I have considered the application filed by the petitioner and the

documents relied upon him. Heard learned advocates for the parties.

Considered the materials in the Case Diary.

25. Admittedly, the petitioner withdrew the death benefits of one Purnima

Bhowmik who worked as a Health Assistant at MLCU, Tamluk in the District of

Purba Midnapur and died in harness on 08.07.2001. The present petitioner

claimed himself to be the husband of the deceased and made different

representations before the West Bengal State Administrative Tribunal, CMOH,

Purba Midnapur(East) and also before District Magistrate Purba Midnapur for

issuing a legal heirship certificate in his favour.

26. When the matter came to the knowledge of opposite party 2, one of the

sister of the deceased who figured as a nominee in the service record of the

deceased, lodged a complaint on the basis of which Tamluk PS Case No. 164 of

2006 was registered. After investigation police submitted Charge Sheet against

accused person under Seciton 419/420/403/406 and 182 of IPC. In the

charge sheet it has been stated that Kajal Chandra Bag fraudulently identified

himself as husband of Purnima Bhowmik and misappropriated an amount of

Rs. 6,91,473/- after producing false documents. It is admitted by the petitioner

that he filed an application before the office of the District Magistrate Purba

Midnapur, claiming himself to be the husband of Purnima Bhowmik. As there

was delay in disposing the application the petitioner approached the Hon'ble

Court and filed Writ Petition no. 3568(W) of 2008 which was disposed by the

Hon'ble Justice Dipankar Dutta (as his Lordship then was). On disposing the

application Hon'ble Court directed the office of the District Magistrate to

conclude the proceeding upon hearing all concern parties within two weeks

from the date of communication of the order. In compliance with Hon'ble

Court's order Additional District Magistrate (Development) Purba Midnapur

consider such representation from the parties and conclude that Kajal Bag, the

applicant did not marry Purnima Bhowmik. As such he cannot be the legal heir

of Purnima Bhowmik as deceased. It was further held that the Legal heir

Certificate of deceased Purnima which was issued vide memo no.700/RM

10.07.2007 of the said office is proper, valid and justified. Therefore, prima

facie it appears that the petitioner could not produce documents or any joint

photograph with the deceased is support of his purported marriage.

27. In absence of any marriage of the petitioner with Purnima Bhowmik, the

representation made by the petitioner appears to be fraudulent representation

with an object to cheat the public office in disbursing the death benefit and

other dues like family pension to the petitioner, whereas the persons entitled to

such benefits are deprive from receiving the same. On a scrutiny of the

material in Case Diary it appears that even the two sisters of the petitioner are

absolutely unaware about any marriage taking place between their Kajal Bag

with the deceased Purnima Bhowmik.

28. Two death certificates have been placed before this court. One to which

disclose that the place of death of Purnima was Padamkhana and her father's

name, Late Indu Bhusan Bhowmik has been recorded. The petitioner on the

other hand has produced another death certificate where his name appears as

the husband and the place of death of the deceased is recorded as

Gourangapur. The death certificate produced by the petitioner does not find

any support from any other document.

29. Petitioner could not produce any material to prima facie indicate that he

was married to the deceased. The service records of the deceased does not bear

the name of the petitioner. After thorough enquiry the Additional District

Magistrate (Development) Midnapur has found that Kajal Bag was not married

to Purnima Bhowmik. In a subsequent writ petition bearing WP no.28537 (W)

of 2008 the Hon'be Single Bench of this Court by order dated 09.07.2009

observed that the order of Additional District Magistrate, Purba Midnapur,

prima facie, appears to be without jurisdiction and will remain stayed. The

petitioner was also directed to deposit the entire amount received by him from

the Chief Medical Officer of Health, Purba Midnapur or otherwise as heir of the

deceased in a fixed deposit account with any nationalized bank.

30. Therefore, it appears that the marital relation of the petitioner with

deceased Purnima Bhowmik has not established. Petitioner in his quest to

consolidate his claim as the husband, has filed O.S. No.91 of 2008 before

Tamluk Court seeking a declaration from the court that he is the legally

married husband of the deceased Purnima Bhowmik. On assessing materials

on record as discussed herein it appears that a strong prima facie case emerges

against the petitioner to indicate that without being the husband of the

deceased employee in a public service, he has made representations before

different authorities and also received the death benefits and also allegedly

misappropriated money on other accounts in the garb of being legal heir of

deceased. The decision relied on behalf of the petitioner that it is a civil dispute

and should not continue is not applicable to the facts of this case. Therefore, I

am of the considered view that the uncontroverted allegations made in the

FIR/complaint and other materials evidence collected does disclose an offence

against the petitioner. The case involves matters relating to facts which are in

the realm of evidence and cannot be decided at the state of considering an

application under Section 482 of Cr.P.C. Accordingly, I hold that there is no

merits in the application filed by the petitioner. Nor is it a dispute of a civil

nature as claimed by him. Therefore, the revisional application filed by the

petitioner is dismissed on contest. Interim order if any stands vacated. All

connected applications are disposed of. Copy of the Case Diary filed by learned

Advocate for state/opposite party no. 1 be returned. Let a copy of this

judgement be sent to Learned Chief Judicial Magistrate, Purba Midnapur,

Tamluk for information. Learned Magistrate is directed to expedite trial of this

case and dispose the same preferably within a period of six months. In so doing

learned Magistrate shall not be influenced by the observations made herein

and decide the case on evidence.

31. Urgent Photostat certified copy of this order may be supplied to the

parties expeditiously if applied for, maintaining all formalities.

(Ananda Kumar Mukherjee, J.)