Calcutta High Court (Appellete Side)

Mahesh Singhania vs The State Of West Bengal & Anr on 23 December, 2022

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                             CRR 1199 of 2021

                            Mahesh Singhania

                                    Vs

                      The State of West Bengal & Anr.




For the Petitioner                 : Mr. Partha Chakraborty,
                                     Mr. A. Chakraborty.




For the State                      : Mr. M. Sur,
                                     Mr. D. Pramanick




Heard on                           : 30.11.2022

Judgment on                        : 23.12.2022
                                   2


Shampa Dutt (Paul), J.:



       The Revisional application is praying for quashing of Baruipur

Police Station Case No. 194 of 2015 dated February 9, 2015 under

Section 380/457/419/411 of the Indian Penal Code, 1860 now pending

before the Learned Additional Chief Judicial Magistrate, Baruipur,

South 24 Parganas.


       The petitioner's case is that he is a Director of the Company

namely Unnati Holding Limited and apart from carrying on other

business is also carrying on business of manufacturing and selling of

readymade garments and clothes of different dealers and customers in

the usual course of business.


       The opposite party/complainant filed a complaint with Baruipur

Police Station Case No. 194 of 2015 dated February 9, 2015 under

Sections 380/457/419/411 of the Indian Penal Code, 1860 against the

Petitioner and another accused person namely Dependu Karmakar @

Tapan Sayal, son of Late Somnath Karmakar @ Somnath Sayal of 12,

KaliKrishna Lane, Police Station - Shyampukur, Kolkata - 700 005,

stating therein that on February 9, 2015 at about 9.30 p.m., he noticed

that some person entered into their office which is practically being

used for the activities of a NGO, near Khas Mallick Club. The said

premises belongs to one Abdul Hannan Sardar. That on the first and
                                     3


ground floor of the said building, the office of the Manihar Cheat Fund

was carrying on its business but due to some litigations the said office

remained closed but inside the office machines and spares were lying.

Some persons broke open the pad lock of the entrance of the said office

and forcefully entered into the said office and removed the sewing

machines and spares lying there. Some machines and spares were

found inside one vehicle with registration no. WB-03-0824 and when

being asked as to their identity one of the said persons who entered

forcefully into the said office room represented that he belongs to police

force but did not disclose his name. They informed Baruipur Police

Station as to the state of affairs but in the meantime the driver of the

vehicle drove away the said vehicle with the machines.


       The Petitioner's case is that one Nandan Sarkar and one Abdul

Hannan Sarkar introduced themselves to the Petitioner through other

accused person named in the instant case namely Dependu Karmakar

who frequently used to visit the Petitioner with proposal of land deals.

The said Dependu Karmakar introduced Nandan Sarkar to the

Petitioner as manufacturer and trader of readymade garments who

suffered loss due to adverse market demand.


       Nandan Sarkar and Dependu Karmakar allured the petitioner

with the proposal to transfer the business of said Nandan Sarkar in

favour of the Petitioner who was also looking for expansion of his
                                   4


business. They also proposed to transfer the entire machines and

spares which all were out dated and turned scrap for a sum of Rs.

2,75,000/- (Rupees two lakhs seventy five thousand only) out of which

Rs. 1,75,000/- (Rupees one lakh seventy five thousand only) was

required to be paid to clear the dues of the machine supplier and the

balance was to be received by the said Nandan Sarkar as total

consideration for all the articles lying at his workshop at Jadavpur.

They also proposed to acquire a premises in the suburban area of

Kolkata for expansion of his business and offered a plot of land with

structure lying at Mouza - Hariharpur, J.L. no. 1, R.S. no. 185, Touzi

no. 250, R.S./L.R. Dag no. 97 and 97/994 under L.R. Khatian No.3342

(now being demarcated and numbered as holding no. 1025) within the

limits of Hariharpur Gram Panchayet under Baruipur Police Station,

District South 24 Parganas which belongs to Abdul Hannan Sardar.


       Nandan Sarkar and Dependu Karmakar accompanied the

Petitioner and inspected the said premises and assured to get the deal

to purchase the land in favour of the Petitioner and also intimated the

Petitioner that Sri Abdul Hannan Sardar agreed to sell the entire

property for Rs. 36,00,000/- (Rupees thirty six lakhs only) which is to

be paid within a period of 6 (six) months and upon payment of a sum of

Rs. 5,00,000/- (Rupees five lakhs only), the possession was to be

transferred in favour of the Petitioner and the Deed of Conveyance

would be executed after payment of the total consideration amount.
                                    5


       The Petitioner being tempted with the offer of the said persons

paid a said sum of Rs. 2,75,000/- to Nandan Sarkar towards payment

of total consideration for purchasing the machines and spares and

further paid a sum of Rs. 5,00,000/- vide pay order in favour of the

Abdul Hannan Sardar towards the payment of earnest money for

purchasing the property and the said Nandan Sarkar and Dependu

Karmakar shifted machines to the said premises from Jadavpur

workshop. The said persons assured that the signed agreement would

be handed over when their Advocate would come. But they started to

avoid the petitioner. They also attempted to dispossess one of the group

Company of the Petitioner from the tenanted space lying under the

jurisdiction of Shyampukur Police Station and necessary legal steps

were initiated against the said persons for their offence. The said Abdul

Hannan Sardar was absconding for having committed other offences.


       The Petitioner then lodged a complaint with Baruipur Police

Station but the said concerned Police Station asked the Petitioner to

obtain an order from the Learned Chief Judicial Magistrate, Baruipur,

District South 24 Parganas under Section 156(3) of the Code of

Criminal Procedure, 1973)


       The petitioner then filed an Application under Section 156(3) of

the Code of Criminal Procedure, 1973 before the Learned Chief Judicial

Magistrate, Baruipur, District South 24 Parganas vide Complaint Case
                                     6


no. 432 of 2015 which was duly accepted by the said Learned court and

the Learned Court was pleased to pass necessary order for proper

investigation and enquiry into the offences committed by the aforesaid

persons.


       The Written Complaint lodged by the Opposite party no. 2 in the

instant case also reveals the fact that the said Nandan Sarkar and

Dependu Karmakar were trying to remove the machines and spares

from the office in which the Petitioner was inducted upon payment of

consideration money, which was agreed to be sold to the Petitioner

upon payment of the total consideration money. It is for that reason the

name of the Petitioner has been tagged with the instant case although it

appears from the factual aspect of the case, that the Petitioner had no

role to play in removing the machines and spares from the said office

which were absolutely and exclusively conducted by the said persons

named above, but the name of the Petitioner has been implicated in the

instant case unnecessarily and with malafide intentions.


       The Petitioner further states that the police officials of Baruipur

Police Station conducted investigation into the case and submitted

charge sheet against the Petitioner and the said Dependu Karmakar

wherein a prima facie case of cognizable offence has been made out by

the investigating officer against the Petitioner and the said person

although during investigation, the Petitioner disclosed the entire factual
                                     7


aspect before the Investigation Officer and also submitted necessary

papers and documents showing payment of substantial amount by the

Petitioner in favour of the said persons for purchasing of the machines,

spares and the amount paid for purchasing the land for official purpose

but the Investigating Officers during investigation did not consider the

said factual aspect narrated by the Petitioner and submitted the charge

sheet against the petitioner which is absolutely on non-application of

mind and without considering the actual aspect involved in the case

and as such the said criminal case initiated by the Baruipur Police

Station and the submission of charge sheet at a subsequent stage

deserves to be quashed for the ends of justice.


         The petitioner's further case is that the purported letter of

complaint as well as the formal First Information Report as well as the

submission of subsequent charge sheet do not disclose commission of

any cognizable offence by the petitioner, and any further proceeding of

the instant case would be an abuse of the process of court and is thus

liable to be quashed invoking the inherent jurisdiction of this Hon'ble

Court.


         The petitioner further submits that any further continuation of

the instant criminal proceeding so far the petitioner is concerned would

be an abuse of process of Court for which the valuable time of the

Learned Trial Court would be wasted and ought to be restricted to
                                     8


prevent the abuse of the process of the Court for sub-serving full justice

in favour of the Petitioner.


       Mr. Partha Chakraborty, Learned Counsel for the petitioner

has submitted that the Written Complaint lodged by the Opposite Party

no. 2 in the instant case also reveals the fact that the said Nandan

Sarkar and Dependu Karmakar were trying to remove the machines and

spares from the office in which the Petitioner was inducted, upon the

payment of consideration money and which was agreed to be sold to the

Petitioner upon payment of the total consideration money and for that

reason the name of the Petitioner had been tagged with the instant case

although it appears from the factual aspect of the case that the

Petitioner had no role to play in removing the machines and spares from

the said office but the name of the Petitioner has been implicated in the

instant case unnecessarily and without any just cause or proper

reasons.


       The police officials of Baruipur Police Station conducted

investigation into the case and submitted charge sheet against the

Petitioner and the said Dependu Karmakar wherein a prima facie case

of cognizable offence has been made out by the Investigating Officer

against the Petitioner and the said Dependu Karmakar although during

investigation, the Petitioner disclosed the entire factual aspect before

the Investigating Officer and also submitted necessary papers and
                                     9


documents showing payment of substantial amount by the Petitioner in

favour of the said persons for purchase of the machines, spares and

also the amount paid for purchasing the land for official purposes but

the Investigating Officers during investigation did not consider the said

factual aspect narrated by the Petitioner.


       The charge sheet against the Petitioner is on absolutely non-

application of mind and without considering the factual aspect involved

in the case and as such the said criminal case initiated by the Baruipur

Police Station and the submission of charge sheet at a subsequent state

deserves to be quashed for the ends of justice.


       That no commission of offences are made out against the

petitioner from the plain reading of the letter of complaint and as such

further involvement of the Petitioner on the basis of the purported FIR

and subsequent charge sheet would amount to denial of justice.


       That is a fit and proper case where the interference of this

Hon'ble Court is attracted for quashing of the FIR vide Baruipur Police

Station being P.S. Case no. 194 of 2015 dated February 9, 2015 under

Sections 380/457/419/411 of the Indian Penal Code, 1860 now

pending before the Learned Additional Chief Judicial Magistrate,

Baruipur, South 24 Parganas including the charge sheet filed

subsequently vide charge sheet no. 1161 of 2015 dated July 27, 2015.
                                       10


       That the purported letter of complaint as well as the formal First

Information Report as well as the submission of subsequent charge

sheet do not disclose commission of any cognizable offence by the

petitioner at all for further proceeding in the instant criminal case and

any further proceeding of the instant case would be an abuse of process

of court and is liable to be quashed invoking the inherent jurisdiction of

this Hon'ble Court.


       That the continuation of the unfounded Criminal proceeding

against the petitioner is otherwise bad in law and is thus liable to be

quashed.


       Mr. Madhusudan Sur, Learned Counsel for the State has

submitted an attested copy of the case diary and submitted that there is

sufficient evidence in the case diary making out a prima facie case of

cognizable offence against the petitioner which led to the submission of

charge sheet in accordance with law and has thus prayed for dismissal

of the revisional application. Heard Learned Counsel at length. Perused

the materials on record, including case diary. Considered.


       From the materials before this court which includes the charge

sheet in Baruipur Police Station case no. 194 dated 09.02.2015 under

Section    457/380/419/411     IPC,    against   the   Petitioner,   Mahesh

Singhania (Absconding) and one Dipendu Karmakar of 12 No.

Kalikrishna Lane, P.S. Shyampukur, Kolkata (Arrested on 09.02.2015)
                                     11


it appears that the complainant has a NGO office on the ground floor in

the house of Abdul Hannan Sardar. There was also a chit fund office of

Monihar Company which was under lock and key.          The said Abdul

Hannan Sardar later kept Tailoring machines there. The said machines

were taken away in a vehicle No. WB-03C 0824. by breaking open lock

and key. Accused Dependu Karmakar was detained who gave his

statement under Section 161 CrPC confessing his guilt and stating

that he carried out the said act on the instruction of the Petitioner

no. 1, Mahesh Singhania, whose other people took away the

machines and that he has been trapped. The said machines were

recovered and seized as shown by accused Dependu Karmakar from

Khas Mallick more.


       Surprisingly the Investigating Officer did not get the details of

the Vehicle involved (WB 03 C0824) which is an important piece of

evidence in this case.


       The other factor to be considered is the contention of the

petitioner that the investigating agency did not collect any of the

documents he produced in support of his contention.


       The said statement is not supported by the contents in the case

diary which includes all the papers which the petitioner has annexed to

his revisional application in support of his case.
                                    12


       Some of the documents filed by the complainant includes a

petition under section 156 (3) of the Cr.P.C. filed    by the Petitioner,

Mahesh Singhania, against Nandan Sarkar, Dependu Karmakar and

Abdul Hannan Sardar, owner of the disputed premises and the tailoring

machines, The letter of complaint is dated 9th February, 2015. The case

against the petitioner is also dated 09.02.2015.


       It is contention of the petitioner that he has paid a sum of

Rupees one lakh in cash to Nandan Sarkar and a sum of Rupees five

lakhs to Abdul Hannan Sardar by a cheque dated 01.01.2015 and a

further sum of Rs. 1,75,000/- to Nandan Sarkar towards full payment

of the machinery, at Baruipur and Santospur by a Cheque dated

03.01.2015

A memorandum of understanding dated 26th day of December,

2014 which includes an Arbitration clause between the petitioner's

company and Nandan Sarkar is part of the case diary.

From the terms there in it in clear from clause 4 that the space

at Ajoynagar and Baruipur is on "TENANCY BASIS".

The contention of the petitioner that Abdul Hannan Sardar

had agreed to hand over possession of the property on payment of

Rs. 5,00,000/- only when allegedly the total consideration amount

is Rs. 36,00,000/- appears to be an unbelievable (oral) proposition.

Admittedly there is no agreement for sale. The petitioner filed his

complaint dated 9th February, 2015 naming others along with Dependu

Karmakar, who along with the petitioner herein has been charge

sheeted in this case.

The petitioner in his complainant has alleged that he has been

cheated by the said Nandan, Dependu and Abdul Hannan Sardar. On

the other hand the said Dependu has stated that the machines were

removed by him on the instructions of the petitioner by breaking open

the premises.

Surprisingly, the petitioner as well as his opponents have named

'Dependu Karmakar' as an accused in their respective cases. From the

materials on records and facts and circumstances of this case, it is

evident that an alleged business deal which may have included transfer

of land and then turned into a dispute for possession by way of using

unlawful force. Whether or what is the exact case is subject matter of

trial.

Presently the material in the case diary clearly make out a

prima facie case of cognizable offence against the petitioner.

The Supreme Court in M/s Neeharika Infrastructure Vs. The

State of Maharashtra (on 13 April, 2021), Criminal Appeal No. 330 of

2021, citing several precedents held :-

" * * * * * *

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

* * * * * *

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

* * * * * *"

In Umesh Kumar Vs State of Andhra Pradesh and Anr. (Supra)

the Supreme Court also held :-

"20. The scope of Section 482 CrPC is well defined and inherent powers could be exercised by the High Court to give effect to an order under CrPC; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the Court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. The law does not prohibit entertaining the petition under Section 482 CrPC for quashing the charge-sheet even before the charges are framed or before the application of discharge is filed or even during the pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the Court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused from undergoing the agony of a criminal trial. (Vide Pepsi Foods Ltd. v. Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128] , Ashok Chaturvedi v. Shitul H. Chanchani [(1998) 7 SCC 698 : 1998 SCC (Cri) 1704 : AIR 1998 SC 2796] , G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy [(2011) 12 SCC 437 : (2012) 1 SCC (Cri) 603] .)

21. In Rajiv Thapar v. Madan Lal Kapoor [(2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] this Court while dealing with the issue held as follows : (SCC p. 348, para 30)

"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment

raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

30.1. Step one : Whether the material relied upon by the accused is sound, reasonable and indubitable i.e. the material is of sterling and impeccable quality?

30.2. Step two : Whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three : Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four : Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?"

22. In State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] this Court dealt with an issue of whether an application under Section 482 CrPC for quashing the charge-sheet should be entertained before cognizance is taken by a criminal court and held as under : (SCC pp. 269-70, para 68)

"68. ... Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to 'killing a stillborn child'. Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the

Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial.... It is not to suggest that under no circumstances a writ petition should be entertained. ... The charge- sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent court. It is not the case that no offence has been made out in the charge-sheets and the first information report."

(emphasis supplied)

23. The issue of mala fides loses its significance if there is a substance in the allegation made in the complaint moved with malice. In Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82 : AIR 1987 SC 877] this Court held as under : (SCC p. 318, para 16)

"16. ... It is a well-established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."

24. In Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193 : AIR 2007 SC 1274] this Court held as under : (SCC p. 43, para 74)

"74. The ultimate test, therefore, is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence. Therefore, the plea of mala fides as raised cannot be maintained."

25. In State of A.P. v. Golconda Linga Swamy [(2004) 6 SCC 522 : 2004 SCC (Cri) 1805 : AIR 2004 SC 3967] this Court held as under : (SCC p. 529, para 8)

"8. ... It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."

(See also K. Karunakaran v. State of Kerala [(2007) 1 SCC 59 : (2007) 1 SCC (Cri) 251] .)

26. Thus, in view of the above, it becomes evident that in case there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal.

27. The scheme for inquiry/trial provided under CrPC is quite clear. After investigation, report under Section 173(2) CrPC is to be submitted before the competent court i.e. the Magistrate having jurisdiction in the matter and the Magistrate may take cognizance under Section 190 CrPC. However, it is still open to the Magistrate to direct further investigation under the provisions of Section 173(8) CrPC. If the case is triable by the Court of Session, the Magistrate would commit the case to the said court under Section 209 CrPC. It is for the court to examine whether there is sufficient material collected during investigation and filed along with the charge-sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges under Section 228 CrPC. At this stage the remedy available to the accused is to ask for discharge under Section 227 CrPC. In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the

pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of Section 216 CrPC. The only legal requirement is that a witness has to be recalled as provided under Section 217 CrPC when a charge is altered or added by the court."

30. In State of Maharashtra v. Salman Salim Khan [(2004) 1 SCC 525 : 2004 SCC (Cri) 337 : AIR 2004 SC 1189] this Court deprecated the practice of entertaining the petition under Section 482 CrPC at a premature stage of the proceedings observing as under : (SCC pp. 527-29, paras 4 & 12) "4. ... The arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise, as in this case, proceedings get protracted by the intervention of the superior courts.

In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. ..."

In the instant case, charge-sheet has been filed and cognizance

has been taken by the Magistrate concerned; the committal proceedings

have not yet taken place.

The Supreme Court in State of Maharastra vs. Salman Salim

Khan (2004) 1 SCC-525, held:-

"12............In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the

prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial......"

At present the only material before this Court is the charge sheet

included in the case diary and at this stage, it is premature to come to a

clear finding. The materials in the case diary and the charge sheet there in

prima facie make out a case of cognizable offence against the

accused/petitioner and there is sufficient materials for proceeding against

the accused/petitioner towards trial and the inherent power of the court

should not be exercised to stifle a legitimate prosecution (in the words of

the Supreme Court).

The Charge Sheet and the evidence placed in support thereof, form

the base to take or refuse to take cognizance by the competent court.

Applications against charge sheet and considering the matter on

merit in the guise of prima facie evidence to stand an accused for trial,