Pawan Kumar Agarwala vs State Of West Bengal & Anr
2023 Latest Caselaw 2900 Cal

25.4.2023 ks. C.R.R. 3659 of 2011 Sl. No.3 CRAN 1/2011(Old CRAN/2355/2011) Pawan Kumar Agarwala Vs.

State of West Bengal & Anr.

Mr. Sourav Chatterjee, Ms. Subhasree Patel ... For the Petitioner.

Mr. Saswata Gopal Mukherjee, Ld. PP., Mr. Madhusudan Sur, Mr. Dipankar Paramanick ... For the State.

Affidavit-of-service filed by the petitioner is on the record.

Despite service, none appears on behalf of the private opposite party No.2.

This criminal revisional application is a

manifestation of displeasure of the petitioner over the

proceedings being CR Case No. 9 of 1986 pending before

the learned Chief Judicial Magistrate, Darjeeling under

section 420 of the Indian Penal Code including the order

dated 1st of October, 2010, passed therein by the learned

Trial Court. Briefly stated Sri Satya Narayan Agarwal,

Opposite Party No.2 filed a petition of complaint before

the learned Chief Judicial Magistrate, Darjeeling alleging,

inter alia, that accused person being the Director of

Poobong Tea Company Limited approached the

complainant for supply of hardware materials and had

stated that the price of the materials so supplied would

be paid by cheques immediately after the delivery. The

complainant accordingly supplied materials worth

Rs.31,296.33 and the accused person towards part

payment of the bill, issued a cheque vide No.131499

dated 8th May, 1986 drawn on the Vijaya Bank Ltd., C.R.

Avenue Branch for a sum of Rs.10,000/- and another

cheque vide No. 037163 dated 10th June, 1986 for a sum

of Rs.10,000/-. But the cheques were not honoured by

Banker of the accused person. The complainant felt

deceived and filed the petition of compliant. Learned

Trial Court after complying with the provision of Section

200 Cr.P.C. was pleased to issue process against the

accused person and ultimately issued non-bailable

warrant of arrest on 1.10.2010.

Mr. Chatterjee, learned Counsel appearing for the

petitioner submits that the complainant was well aware

that the transaction was commercial in nature and

alleged non-payment of bill had a flavour of a dispute,

civil in nature, which is why he filed a Money Suit No.9

of 1986, before the learned Civil Judge, Senior Division,

Darjeeling. The said suit was dismissed being barred by

limitation and also for non-compliance of statutory

mandate as laid down under Section 69(2) of the

Partnership Act. It is submitted by Mr. Chatterjee that

law does not permit any proceeding criminal in nature,

after dismissal of a Civil Suit on the ground of limitation

and in support of his contention Mr. Chatterjee places

reliance upon a decision of Hon'ble Apex Court in

Thermax Limited & Ors. vs. K.M. Johny & Ors reported

in (2011) 13 SCC 412. It is further submitted that

admittedly the accused person is one of the Directors of

M/s. Poobong Tea Company Limited. In the Civil Suit

the complainant made the Company as party while in

the Criminal proceedings the petition of complaint was

filed without impleading the Company as accused

though the grievance basically is against the Company.

On this count also, the criminal proceedings prima facie

appears to be an abuse of process of law, which the

learned Trial Court failed to appreciate.

Pursuant to the direction of this Court learned

Public Prosecutor, High Court, Calcutta is representing

the State /opposite Party No.1 Mr. Mukherjee Learned

P.P. draws my attention to the averment made in the

petition that earlier the petitioner made an unsuccessful

attempt to quash the proceedings before the learned

Trial Court.

It is the settled principle of law that principle of

res judicata is not applicable in criminal proceedings. In

this regard we can rely upon the decision of Hon'ble Apex

Court in Devendra & Ors. vs. State of Uttar Pradesh &

Anr. reported in (2009) 7 SCC 495, wherein the Hon'ble

Apex Court held :- "Mr. Das, furthermore, would contend

that the order of the High Court dated 17.10.2005 would

operate as res judicata. With due respect, we cannot

subscribe to the said view. The principle of res judicata

has no application in a criminal proceeding. The

principles of res judicta as adumbrated in Section 11 of

the Code of Civil Procedure or the general principles

thereof will have no application in a case of this nature."

Considering the aforesaid facts and circumstances

of the case I am of the view that the proceedings pending

before the learned Trial Court being CR Case No.9 of

1986 should not be allowed to remain in force and

should be quashed to avert the abuse of process of law,

which I, accordingly do. The criminal proceeding being

CR Case No.9 of 1986 pending before Learned Chief

Judicial Magistrate, Darjeeling stands quashed. The

criminal revision is thus disposed of.

Let a copy of the judgment be sent to the learned

Trial Court by Special Messenger, cost to be paid by the

petitioner, as submitted by Mr. Chatterjee. Liberty is

given to Mr. Chatterjee to deposit the Special Messenger

Cost within seven days.

Urgent certified copy, if applied therefor, may be

supplied upon usual compliance of rule.

( Siddhartha Roy Chowdhury,J.)