Calcutta High Court (Appellete Side)

Modi Industries Ltd vs The State Of West Bengal And ... on 14 July, 2022

                  IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE
Present :
The Hon'ble JUSTICE BIVAS PATTANAYAK
                         C.R.R. 618 of 2013
                        Modi Industries Ltd.
                              Vs
             The State of West Bengal And Another


For the petitioner:           Mr. Sourav Chatterjee, Adv.
                              Mr. Soumya Nag, Adv.
                              Mr. Aditya Tiwari, Adv.
                              Ms. Namrata Chatterjee, Adv.
For the State:                Mr. Arijit Ganguly, Adv.
                              Ms. Debjani Sahu, Adv.


Heard on:                     16.06.2022.


Judgment on:                  14.07.2022


BIVAS PATTANAYAK, J. : -
1.

The present revisional application has been preferred by the petitioner

seeking an order under Section 482 of the Code of Criminal Procedure for

quashing of proceedings being AC Case No. 2331 of 2012 pending before

the Learned Judicial Magistrate, 4th Court,24-Parganas (South), at Alipore

under Section 420/406/120 B of the Indian Penal Code and all orders

including order dated 04.12.2012.

2.The brief fact of the case is that the opposite party no.2-complainant

namely M/s Universal Paints Corporation, is a proprietorship company

dealing with business of selling of paints and other allied materials. It

filed a complaint before the Learned Additional Chief Judicial Magistrate,

Alipore, with the contention that in the month of February 2011, the

accused no.4 & 5 represented on behalf of Accused no. 1 namely Modi

Industries Ltd (The petitioner herein) that they intend to appoint clearing

and forwarding agent for marketing their products. In the month of

March-April 2011, the opposite party no.2-complainant paid a security

deposit of Rs.5 lakhs and also spent more than Rs. 7 lakhs for fulfilling

the conditions as asked for by the accused persons. In spite of fulfilling of

the requirements as above the accused persons started dillydallying the

execution of the distributorship agreement and after many persuasions a

temporary agreement for distributorship was executed on 02.05.2011

with the terms and conditions mentioned therein. The accused persons

asked the complainant to issue two blank cheques in the form of security

deposit. The accused persons started the business with the complainant

as per terms of distributorship agreement and in and around July, 2011

the accused persons started sending goods of inferior quality resulting in

loss to the opposite party no.2-complainant to the tune of Rs. 2,43,000/-.

The opposite party no.2-complainant suffered recurring loss as well. On

the basis of such averments the complaint case being no. AC 2331 of

2012 came into existence. The opposite party no.2-complainant was

examined under Section 200 of the Code of Criminal Procedure and the

summons was issued against the accused persons. Being aggrieved by

and dissatisfied with the said proceedings the petitioner has preferred the

present revisional application.

3.Mr. Sourav Chatterjee, learned advocate appearing on behalf of the

petitioner firstly, submitted that as per the amended provision of Section

202 of the Code of Criminal Procedure it is mandatory that whenever the

accused is residing at a place beyond the territorial jurisdiction of the

originating court an enquiry under Section 202 of the Code of Criminal

Procedure is to be directed. However, such provisions of law was not

adhered to by the trial court while issuing process against the petitioner-

accused no.1 who has its place of business at Modi Nagar, Ghaziabad,

Uttar Pradesh which falls beyond the territorial jurisdictional area of the

concerned Magistrate. In support of his contention he relied on a decision

of Division bench of this Hon'ble Court passed in S.S Binu versus State

of West Bengal and another and other batches of petitions reported in

2018 Cri LJ 3769. Secondly, he submitted that the allegations made out

in the complaint squarely relates to supply of inferior quality of goods

which is a general phenomenon in all business transactions of such a

nature and cannot be labeled as a deceitful act or an act of conspiracy by

the petitioner to breach the terms and conditions of the agreement for

causing loss to the complainant-company. As the complaint is a fall out of

an agreement by and between the parties hence, it is essentially a civil

dispute and does not attract the provisions of Section 420/406/120B of

the Indian Penal Code and in support of his contention he relied on the

decision of the Hon'ble Apex Court passed in Dalip Kaur & others

versus Jagnar Singh and another reported in (2009) 14 SCC 696. He

further submitted that if this Court is of the opinion that Section 202 of

the Code of Criminal Procedure has to be followed before issuance of

summons then in that event the order of issuance of summons by the

trial court be set aside with a direction for necessary compliance of the

mandate of law envisaged in the said provision.

4. Inspite of service of notices none appeared on behalf of the opposite

party no.2-complainant.

5. With regard to the first limb of submission advanced on behalf of the

petitioner that provision of section 202 of the Code of Criminal Procedure

has to be mandatorily followed before issuing summons against accused

persons outside the territorial jurisdiction of the trial magistrate, it would

be proficient to reproduce the relevant provisions for convenience of

discussion.

Section 202 of the Code of Criminal Procedure provides as hereunder:

"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may , if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of decision whether or not there is sufficient ground for proceeding:........"

5.1. In S.S Binu (supra) this Court has held that the amendment of sub-

section (1) of Section 202 of the Code of Criminal Procedure is aimed to

prevent innocent persons who are residing outside the territorial

jurisdiction of the learned Magistrate concerned from harassment by

unscrupulous persons from false complaints and the use of expression

"shall" is a mandatory one before issuance of summons against the

accused living beyond the territorial jurisdiction of the Magistrate. The

relevant paragraph no.110 of the aforesaid decision is reproduced

hereunder:-

"110. To sum up, the reference made by the Learned Single Judge on the five issues are answered as follows:-

I. According to the settled principles of law, the amendment of subsection (1) of Section 202 Cr.P.C by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. II. Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.PC, the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them from unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any mater which calls for

investigation by the Criminal Court in the light of the settled principles of law holding an enquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer as discussed hereinabove. III. When an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.PC, the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.

IV. Keeping in mind the object underlined in Section 465 Cr.P.C that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. In the event of failure on the part of an aggrieved party to raise objection at the earliest stage, he cannot be heard on that aspect after the whole trial is over or even at a later stage after his participation in the trail.

V. In cases falling under Section 138 read with Section 141 of the N.I Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202(1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.

5.2.Therefore after the amendment of Code of Criminal Procedure by the

Amendment Act of 2005, it is settled that with regard to private

complaint, it is mandatory for the trial Magistrate to postpone the issue of

process against the accused persons when they are outside its territorial

jurisdiction, as it was found necessary in order to protect innocent

persons from being harassed by unscrupulous persons and making it

obligatory upon the Magistrate to enquire into the case himself, or to

direct investigation to be made by a police officer, or by such other person

as he thinks fit for the purpose of finding out whether or not, there was

sufficient ground for proceeding against the accused before issuing

summons in such cases.

6.It is found from the petition of complaint (Annexure P6 at page 40) that

the petitioner-accused no.1 (company) as well as other accused persons

being the directors, General Manager, Zonal Manager and Business head

of the said company respectively are of Modi Nagar, Ghaziabad, Pin-201

204, which is outside the territorial jurisdiction of the trial Magistrate the

Judicial Magistrate, 4th court, at Alipore. From the order dated

04.12.2012, passed by the Learned Judicial Magistrate which is under

challenge it is revealed that the complainant was examined on S.A under

Section 200 of the Code of Criminal Procedure and summons were issued

against the petitioner-company and other accused persons after taking

cognizance of offence under section 420/406/120B of the Indian Penal

Code, without making any statutory enquiry as required under section

202 of the Code of Criminal Procedure or issuing direction as per

requirement under the said provision for causing an enquiry.

7.As the aforesaid provisions embodied under Section 202 of the Code of

Criminal Procedure is a mandatory one, accordingly, the Magistrate

concerned before issuing summons against the petitioner and other

accused persons of outside its territorial jurisdiction vide order under

challenge should have adhered to the provisions of Section 202 of the

Code of Criminal Procedure either by enquiring himself or directing an

investigation to be made by the police officer or by any person he deemed

fit.

8.In the case of Narmada Prasad Sonkar alias Ramu versus Sardar

Avtar Singh Chabara and others, reported in (2006) 9 SCC 601, the

Hon'ble Apex Court have held as follows:

"If the Magistrate had not followed the procedure and has failed to apply his mind as required by law, the order issuing process could be quashed but the Magistrate should be directed to reconsider the matter and pass fresh order in accordance with law."

9. As it is found that there are procedural irregularities, this Court is of

the view that if the impugned order dated 04.12.2012, passed by the

learned Judicial Magistrate, 4th Court, at Alipore is allowed to continue it

would be an abuse of the process of the court. In the aforesaid backdrop

and in exercise of the power vested under Section 482 of the Code of

Criminal Procedure the impugned order dated 04.12.2012 passed by

learned Judicial Magistrate, 4th Court, at Alipore is hereby set aside.

However, the matter is remitted to the concerned Magistrate for causing

enquiry in terms of Section 202 of the Code of Criminal Procedure and

thereafter decide whether or not there is sufficient ground for proceeding

and shall reconsider the matter pertaining to said complaint and pass a

fresh order on it in accordance with law.