Calcutta High Court (Appellete Side)
Kunal Gupta & Anr vs Rakman Commotrade Pvt. Ltd on 16 November, 2022
IN THE HIGH COURT AT CALCUTTA
16-11-2022 Criminal Revisional Jurisdiction
Subha
Item no.17 CRR 1396 of 2021
Ct no.34
Kunal Gupta & Anr.
-versus-
Rakman Commotrade Pvt. Ltd.
Re : An application under Sections 482 of the Code of Criminal Procedure.
Mr. Karan Dudhwewala
Mr. Rishav Singh
....for the petitioner.
Ms. Priyanka Agarwal
....for the opposite party.
This revisional application has been preferred challenging the
proceedings being C.S. Case No. 27570 of 2020 under Sections
420/406/409/120B of the Indian Penal Code pending before the
learned Metropolitan Magistrate, 13th Court, Calcutta wherein the
learned Magistrate after examining the two witnesses along with the
complainant was pleased to issue process under Sections
406/409/420 of the Indian Penal Code.
Learned advocate for the petitioners submits that the present
complaint was for recovery of a loan amount from a proprietorship
concerned to which the petitioner no.3 was not at all associated.
Learned advocate for the petitioners also submits that the
complainant has also initiated case under Section 138 of the N. I. Act
which has been suppressed in the present petition of complaint.
According to the complaint, the nature of the transactions itself
speaks that there was a breach of the agreement which was open for
2
adjudication before a civil forum and none of the offences as
complained of under Sections 420/406/409 IPC is made out.
It has also been submitted that the proprietor/petitioner no.2
has expired during the pendency of the revisional application and as
such, so far as the petitioner no. 1 who was in no way associated with
the proprietorship firm should not be allowed to face the rigors of trial.
Learned advocate to that aspect has relied upon the
judgement of the Hon'ble Supreme Court in Satishchandra Ratanlal
Shah -versus- State of Gujarat & Anr., reported in (2019) 9
Supreme Court Cases 148. The attention of this court has been
drawn to the paragraphs 11 and 13 which are set out as follows":-
11. "Having observed the background principles
applicable herein, we need to consider the individual
charges against the appellant. Turning to Section 405
read with Section 406 IPC, we observe that the dispute
arises out of a loan transaction between the parties. It
falls from the record that Respondent 2 knew the
appellant and the attendant circumstances before
lending the loan. Further it is an admitted fact that in
order to recover the aforesaid amount, Respondent 2
had instituted a summary civil suit which is still
pending adjudication. The law clearly recognizes a
difference between simple payment/investment of
money and entrustment of money or property. A mere
breach of a promise, agreement or contract does not,
ipso facto, constitute the offence of the criminal breach
of trust contained in Section 405 IPC without there
being a clear case of entrustment."
13. "Now coming to the charge under Section 415
punishable under Section 420 IPC. In the context of
contracts, the distinction between mere breach of
contract and cheating would depend upon the
fraudulent inducement and mens rea. (See Hridaya
Ranjan Prasad Verma v. State of Bihar). In the case
before us, admittedly the appellant was trapped in
economic crisis and therefore, he had approached
Respondent 2 to ameliorate the situation of crisis.
Further, in order to recover the aforesaid amount,
Respondent 2 had instituted a summary civil suit
seeking recovery of the loan amount which is still
pending adjudication. The mere inability of the
appellant to return the loan amount cannot give rise to
a criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of
the transaction, as it is this mens rea which is the crux
of the offence. Even if all the facts in the complaint and
material are taken on their face value, no such
dishonest representation or inducement could be found
or inferred."
Learned advocate submits that there was an inducement for
parting with the sum of Rs. 10 lakhs, although the same was by the
petitioner no. 2, but the complaint specifically alleges that there was
involvement of the petitioner no.1 as he was the person who had
handed over the cheque.
Learned advocate appearing for the complainant/opposite
party relies upon a judgement of the Hon'ble Supreme Court in
Vijayander Kumar and Others -versus- State of Rajasthan & Another
reported in (2014) 3 Supreme Court Cases 389. Learned advocate
draws the attention of this court to paragraph 12 which is set out as
follows :-
"12. ....The real test is whether the allegations in the
complaint disclose a criminal offence or not. This proposition
is supported by several judgments of this Court as noted in
para 16 of the judgement in Ravindra Kumar Madhanlal
Goenka v. Rugmini Ram Raghav Spinners(P) Ltd."
It has been candidly submitted by the learned advocate
appearing for the complainant/opposite party that no offence under
Sections 406/409 of the Code of Criminal Procedure has been made
out, but the proceedings should continue under Sections 420/120B of
the Indian Penal Code.
To that extent, the process issued under Sections 406/409 of
the Indian Penal Code, which was passed by the learned Magistrate by
its order dated 27th January, 2021 is quashed.
So far as the issue relating to the continuance of the process is
concerned, the procedure to be adopted in such case is warrant cases
instituted otherwise than on police report. In such a procedure, the
complainant is to place its evidence prior to consideration of charges.
The case relied upon by the petitioner is where a chargesheet was
submitted pursuant to an investigation being conducted where the
materials were already collected by the Investigating Agency.
The factum which is to be assessed in such cases where facts
are hazy are whether there was an inducement at the inception and as
to whether it was a mere failure of non-payment or a case of
deception.
Having regard to the stage of the case at which the petitioner
approached this court wherein only the complaint has been filed and
the complainant is yet to adduce any evidence before charge it is not
possible for a court of law to appreciate whether there was a deception
from the initial stage of the representations being made by the
accused firm or the petitioner no. 1 was associated with the firm at
the relevant point of time.
Having regard to the same, I direct that the proceedings before
the learned Metropolitan Magistrate, 13th Court, Calcutta would
continue under Sections 420/120B of the Indian Penal Code.
Petitioner no. 1 would be at liberty to canvass such points at the time
of consideration of charges at the stage of Section 245/Section 246 of
the Code of Criminal procedure.
In view of the nature of the transaction, the petitioner no. 1
should not be insisted to be physically present on each and every day
in course of the trial by the learned Magistrate until and unless his
presence deters the progress of the trial.
So far as the petitioner no.2 is concerned, it has been
submitted that he has expired during the pendency of the revisional
application before this court. To that effect the learned Metropolitan
Magistrate, 13th Court, Calcutta would call for a report from the
concerned Police Station to ascertain the genuinity of such
applications.
With the aforesaid observations, the revisional application being
CRR 1396 of 2021 is disposed of.
Pending applications, if any, are consequently disposed of.
Interim order, if any, is hereby vacated.
All concerned parties are to act on the server copies of the
order duly downloaded from the official website of this court.
[Tirthankar Ghosh, J]
