Calcutta High Court (Appellete Side)
Vinod Kumar Gupta & Anr vs Unknown on 3 March, 2022
03-03-2022 IN THE HIGH COURT AT CALCUTTA
Subha Criminal Revisional Jurisdiction
Item- 10 (Via video-conference)
Ct -.34
C.R.R 3638 of 2017
IA No. CRAN 4 of 2020 (Old No. CRAN 1143 of 2020)
In Re: An application under Section 482 Cr.P.C.
In the matter of : Vinod Kumar Gupta & Anr. ...Petitioners.
Mr. Sandipan Ganguly, Sr. Adv,
Mr. Karan Dudhwewala
....for the petitioners.
Mr. Saikat Basu
Mr. Abhishek Acharya
....for the opposite party.
The present revisional application has been preferred
challenging the proceedings being CR Case No. 102 of 2017 under
Sections 420/406/506/34 of the Indian Penal Code pending before
the learned Judicial Magistrate, 4th Court, Siliguri, as also the
orders passed therein.
The accused petitioners herein happen to be the
Managing Director of Dollar Industries Ltd. and one Sumeet
Agarwal and the complainant herein happens to be one Chetan
Agarwal, Proprietor of Chetan Agency.
It has been alleged in the complaint that the accused
persons approached the complainant for dealing with their
products and convinced the complainant to sell their products.
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On such representation, the complainant was
convinced and as such handed over two signed blank cheques as
security. The said cheques being cheque no. 410478 and 410479
were drawn on ICICI Bank, Siliguri Branch. With passage of time,
the business activities commenced and the complainant paid for
the goods which were delivered to them, but after few months, the
complainant faced problem as the accused persons by violating the
agreed terms of business engaged some other dealers in the same
area. Ultimately, the complainant informed the accused persons
their inability to continue with the business and settled the
accounts, it was further requested that the accused Company
should lift 73 boxes/cartons of hosiery products valued at
Rs.25,90,352/- which were lying with the complainant.
It was also asked by the complainant that before
settlement of accounts, all the goods which were lying with the
dealers relating to the complianant should also be collected and the
said list was also handed over.
On several occasions, the complainant Company requested
the accused persons to settle his accounts, but they avoided the
same on flimsy ground and surprisingly on 31.12.2014, a demand
notice was issued to the complainant claiming an amount of
Rs.40,00,000/- being dishonoured for the cheque no. 410478
drawn on ICICI Bank, Siliguri Branch.
Three cases were also registered being CS Case No. 0007286
of 2015 pending before the learned Metropolitan Magistrate,
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Calcutta, GR Case No. 3590 of 2015 pending before the learned
Additional Chief Judicial Magistrate, Siliguri and CR Case No. 74 of
2015 pending before the learned Judicial Magistrate, 2nd court,
Siliguri.
The complainant alleged that the said cheque was never
issued to M/s. Dollar Industries Limited in discharge of any liability
and in spite of returning all the goods worth Rs.25,90,352/- as per
their direction and all arrears being cleared, yet the complainant's
account was never settled.
The accused persons from the inception have been trying to
take advantage of the innocence of the complainant and has
deceived him by various mis-representations.
It is alleged that by various means the accused persons
threatened the complainant to pay them Rs.40 lakhs, but as the
complainant refused to do the same, on 22nd January, 2016 in the
evening hours the accused persons came to the office of the
complainant and threatened him that if within a month he does not
deposit a sum of Rs.40 lakhs in the account of Dollar Industries
Ltd, they would institute false cases.
Finding no other alternative, complainant lodged a compliant
with the Siliguri Police Station, but no steps were taken by the
police authorities and as such having no other alternative, the
complainant has initiated the present case.
Mr. Sandipan Ganguly, learned senior advocate appearing
on behalf of the petitioners submits that even if the allegations
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made in the petition of compliant are accepted to be true in its
entirety, no case has been made out so far as the present
petitioners are concerned. To that effect, learned advocate relied
upon a judgement of the Hon'ble Supreme Court in the case of
Sunil Kumar -vs- Escorts Yamaha Motors Ltd. & Ors., reported in
(1999) 8 Supreme Court Cases 468.
Learned senior advocate relied upon paragraph 5 of the
said judgment which is set out below:-
"Bearing in mind the law laid down by this Court in
the cases referred to earlier and the contentions raised by
the learned counsel appearing for the parties and on
examining the allegations made in the FIR, we are
persuaded to accept the submission of Mr H. N. Salve and
Mr Arun Jaitley, appearing for the respondents that the
necessary ingredients of the offence of cheating or criminal
breach of trust have not been made out and on the other
hand the attendant circumstances indicate that the FIR
was lodged to pre-empt the filing of the criminal compliant
against the informant under Section 138 of the Negotiable
Instruments Act. The High Court, therefore, was well
within its power in quashing the FIR as otherwise it would
tantamount to an abuse of the process of court. We,
therefore, see no justification for our interference with the
impugned decision of the High Court in exercise of power
under Article 136 of the Constitution."
The attention of this court was drawn to the judgement
of the Hon'ble Supreme Court in Mahindra & Mahindra Financial
Services Limited & Anr. -vs- Rajiv Dubey reported in (2009) 1 S.C.C
706 and also Eicher Tractor Limited & Ors. -vs- Harihar Singh &
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Anr. reported in (2008) 16 SCC 763, wherein under similar
circumstances, the Hon'ble Supreme Court was pleased to interfere
with the subsequent proceedings initiated at the instance of the
accused pursuant to the proceedings under Section 138 of the N. I.
Act.
Mr. Saikat Basu, learned advocate appearing on behalf of
the complainant/opposite party submits that the case is at the very
initial stage and the complainant must be afforded opportunity to
adduce its evidence.
Learned advocate for the complainant/opposite party
further submits that the complainant has been asked to face the
ordeal of criminal trial under Section 138 of the N. I. Act without
any fault on his part and security cheques have been placed for
encashment without their being any dues on his part.
It is his further contention that the present case has a
separate cause of action and as such, the same should not be
interfered with.
Having regard to the authorities relied upon by the learned
advocate for the petitioners more particularly, the observations
made by the Hon'ble Supreme Court in the case of Sunil
Kumar(Supra) regarding the circumstances under which the case
has been initiated to pre-empt the filing of the criminal compliant
against the informant under Section 138 of the N. I. Act, I am of the
opinion that the ratio laid down therein squarely applies to the facts
of the present case and as such further continuance of the same
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would be an abuse of the process of law.
Consequently, the complaint case being CR Case No. 102 of
2017 pending before the learned Judicial Magistrate, 4th Court,
Siliguri is, hereby, quashed.
Accordingly, the present revisional application being CRR
3638 of 2017 is allowed.
All pending applications, if any, in connection with the
revisional application, are consequently disposed of.
Interim orders, if any, are, hereby, made absolute.
All concerned parties are to act in terms of a website copy
of this order duly downloaded from the official website of this court.
( Tirthankar Ghosh, J. )
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