Calcutta High Court (Appellete Side)

Global Casting Pvt. Ltd. & Anr vs State Of West Bengal & Anr on 29 August, 2023

                                   1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                      C.R.R. No. - 2159 of 2018
                               with
       CRAN 1 of 2020 (Old NO. CRAN 1147 of 2020)
                       IN THE MATTER OF

                   Global Casting Pvt. Ltd. & Anr.
                                Vs.
                    State of West Bengal & Anr.

For the Petitioners         : Mr. Sabyasachi Banerjee, Sr. Adv.,
                              Mr. Ayan Bhattacharya, Adv.,
                              Mr. A.P. Gomes, Adv.,

For the State              :   Mr. N.P. Agarwala, Adv.,
                               Mr. P. Bose, Adv.,



Judgment on                    :       29.08.2023



Subhendu Samanta, J.

The instant criminal revision is preferred u/s 379/401

read with Section 482 of the Code of Criminal Procedure for

setting aside an order dated July 19th, 2018 passed by the

Learned Metropolitan Magistrate 20th Court at Calcutta in case

No. C/ 48727 of 2013 u/s 406/468/420 of the IPC thereby

dismissing the application u/s 245(1) of the Code of Criminal

Procedure.

The brief fact of the case is that the present respondent

no. 2 has filed a complaint case against the present petitioner

before the Learned Chief Metropolitan Magistrate, Calcutta.

The Learned Chief Metropolitan Magistrate, Calcutta has

transferred the said case record to the Learned 20th Magistrate,

Calcutta.

The petition of complaint contended the allegation

against the present petitioner to the effect that the petitioner

No. 1 had supplied inferior quality of goods to the opposite

party no. 2 for that the opposite party no. 2 was penalised by

its purchaser. It was further alleged that petitioner no. 1 had

suddenly stopped to supply the goods to the opposite party no.

2 which had again caused considerable loss to the opposite

party no. 2. It has also been pleaded in the said petition of

complaint that the petitioner has without intimation or

permission of the opposite party no. 2 has deposited some

post-dated cheques for encashment beyond the terms and

conditions.

Learned Magistrate was pleased to examine the

representative of the opposite party no. 2 u/s 200 of the Code

of Criminal Procedure and adjourned the prosecution for

enquiry u/s 202 of Cr.P.C. One witness was examined u/s 202

Cr.P.C and after perusing the statement of the said witness the

Learned Magistrate has issued the process in the nature of

summons against the present petitioner u/s 406/468/420 IPC.

In response to that summons the petitioner appears

before the Learned Magistrate and got the order of bail

including a favourable order u/s 202/305 of Cr.P.C.

Thereafter the opposite party No. 2 adduced evidences of

three witnesses namely PW 1, PW 2, PW 3 respectively before

the framing of charge.

At that time the present petitioner has filed an

application before the Learned Magistrate u/s 245(1) Cr.P.C

therein seeking discharge. After hearing the parties the learned

Magistrate has passed the impugned Order on 19.07.2018 by

rejecting the application for discharged and fixed the date of

framing of charge.

Hence this revision.

Learned Advocate for the petitioner submitted before this

court that the impugned order passed by the Learned

Magistrate is improper and palpably illegal in the eye of law.

Learned Magistrate has failed to appreciate the evidences on

record and there by caused error in dismissing the application

of the petitioner filed u/s 245(1) of the Cr.P.C. The instant

criminal prosecution is purely a civil in nature it has been

engineered by the opposite party in a criminal proceeding. The

instant criminal proceeding filed by OP No. 2 is counter blast of

the proceeding instituted by the petitioner no. 1 against the

opposite party No. 2 and its directors are attending as accused

before the Learned Judicial Magistrate at Alipur, South 24

Parganas alleging therein the commission of offences

punishable u/s 138/141of Negotiable Instrument Act 1998,

which was registered as case no. C/7039 of 2012 pending

before the Learned Judicial Magistrate second Court Alipur,

South 24 Parganas. At the stage of trial.

The instant proceeding was only initiated to harass the

present petitioner. The allegation as recorded in the petition of

complaint has never made out the ingredients of offences

punishable u/s 406/468/420 of the IPC. The Learned

Magistrate must have considered the evidences of PW 1 PW 2

and PW 3 to find out the sole purport of the ingredients of

offence, whether made out or not. Learned Magistrate thus

committed error in dismissing the application of the petitioner

u/s 245(1) Cr.PC. The impugned order passed by the Learned

Magistrate is liable to be set aside.

Learned Advocate appearing on behalf of the state

submits that the evidences before charge has already been

recorded by the Learned Magistrate. Learned Magistrate has

opined that the factual matrix cannot be assessed during the

evidence before charge. Learned Magistrate during the evidence

before the charge is a further view that only after conclusion of

trial, the correctness of the evidences of PWs can be

ascertained. Thus the impugned order passed by the Learned

Magistrate suffered no illegality. There is no merit to entertain

the instant criminal revision.

Opposite party no. 2 was not represented in spite of the

service.

Heard the Learned Advocates perused the materials on

record. The basic allegation made in the complaint by the

complainant company is that, the accused company has

supplied some raw materials which is of inferior quality; due to

supply of such raw materials of inferior or quality, they have

suffered loss and penalised by their purchasers (Tata Motors).

It is stated in the petition of complaint that there are several

meeting between the complainant company and the accused

company to settle out the matter. Finally it has been alleged

that the accused company has stopped supplying the raw

materials without any information. It has also been alleged that

without complying the necessary terms and conditions the

complainant company has deposited some Post dated cheques

without information of the complainant.

The business transaction between the two companies is

well founded in the petition of complaint. Let me consider

whether the offence punishable u/s 406/468/420 IPC is at all

made out by the said petition of complaint along with evidences

collected by the Learned Magistrate before the framing of

charge. Section 406 IPC enunciated punishment for framing

Breach of Trust.

Criminal breach of trust was defined u/s 405 of the IPC.

405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'.

There are difference between the criminal breach of trust

and breach of trust civil in nature Hon'ble Supreme Court in

Sudhir Vs. CBI (2009) 8 SCC 1 has formulated that "Act of

breach of trust per se may involve a civil wrong but a

breach of trust with an ingredients of mens ria would give

rise to a criminal prosecution. Criminal breach of trust

would inter alia, mean using or disposing of the property

by a person who is entrusted with, or as otherwise domain

there form. such an Act must not be done dishonestly but

also in violation of any direction of law or in contract

expressed or implied relating to carry out the trust". In the

present case it has been alleged by the complainant company

that the accused company has committed the criminal breach

of trust by not supplying the raw materials. It has stated in the

petition of complaint that there were agreements or meetings

between the parties to solve out the disputes arising between

them. Consequently the conduct of the parties itself shows that

the criminal intention (measured) on the part of present

petiioners is missing. The basic ingredients of any criminal

actions is the mens ria/guilty mind. In this case the accused

company was not entrusted any property which he has

dishonestly misappropriates. Thus, in this case the offence

punishable u/s 406 IPC is not at all made out.

Section 468 is the offence for forgery for the purposes of

cheating. It has been alleged in the petition of complaint that

the accused has entered into factory of the complainant

company stealthily and forged the logo/emblem of the

complainant company. The so called emblem or logo was not

come under the document or electronic records or part thereof

as mentioned in Section 468 of IPC. More over the alleged

offence is omnibus and general in nature. No specific date of

offence was mentioned in the petition of complaint. The

witnesses of the complainant before the Learned Magistrate

also failed to give an account regarding the specific offence

punishable u/s 468 of IPC against the present petitioner thus

in my view the offence u/s 468 of IPC is not made out in this

case. To substantiate the offence of cheating u/s 420 IPC. The

complainant has to bring on record the initial deception by the

accused company.

It is proved that the complainant company and the

accused company had a continuous business relation. The

accused company has failed to elaborate the presence of

element of deception to the very inception of the business

transaction between the two companies. It is true that the

business transaction of the companies was going on smoothly

and after- wards their relationship, became stained due to

some reasons. It is not permitted by the complainant to file a

petition of complaint u/s 420 IPC against one company with

whom they have the smooth relationship and afterwards such

relationship became stained and they found deception of the

accused company only during the pendency of the relationship

not from the beginning. In view of the above, the ingredients of

offence u/s 420 IPC is also not prima facie made out in this

case.

Admittedly the accused company has initiated a criminal

complaint against the complainant u/s 138 of NI Act. The

present complaint was filed after initiation of such prosecution

u/s 138 of NI Act . Hon'ble Supreme court in DP Gulati,

Manager accounts, Jet King Infotech Limited Vs. State of

U.P. and Anr. has held that Counter blust of Criminal

complaint u/s 420 IPC against a criminal prosecution u/s 138

of NI Act is not maintainable. Some view was adopted by the

Hon'ble Supreme Court in Sunil Kr. Vs. M/s Escorts Jamuna

Motors Limited.

Heard the Learned Advocates perused the materials on

record also perused the decision of the Hon'ble Supreme Court.

Admittedly one criminal prosecution is pending u/s 138 of NI

Act against the present complainant. The present complainant

initiated the instant criminal compliant with the allegation of

cheating and criminal breach of trust. The complainant has

adopted a procedure in the form of criminal complaint against

a company which have filed a criminal prosecution u/s 138 of

NI Act. The way of approaching the court of Magistrate by the

complainant company appears to be the counter blast of the

criminal prosecution u/s 138 of NI Act. The private Companies

approaching the court of Magistrate against some other private

companies having earlier business transaction only to put

pressure upon the other company so that the criminal

prosecution initiated u/s 138 of NI Act may be with drawn. The

process of court has been used by the companies with the

ulterior motive so that the dispute between the parties may be

minimise by the fear of the criminal proceeding. The ends of

justice cannot be arrived at between the parties under the fear

of the process of the court. The private companies are regularly

filing mischievous complaint before the court of Magistrate in

similar fashions nowadays.

The Hon'ble Supreme court in several occasions has

come heavily upon such conduct of the complainant. The

Hon'ble Supreme Copurt in the of State of Hariyana Vs.

Bhajanlal has specifically observed that if after taking the

petition of complaint and evidences therein to be true, the

court find no prima facie offence being made out against the

accused persons, the High Court is free to quash the

proceeding u/s 482 of Cr.P.C.

Para 102- (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2).................

(3).................

(4).................

(5).................

(6).................

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

So considering the entire facts and circumstances

of this case and considering the materials on record I find

merits to entertain the criminal revision.

The impugned Order passed by the Learned Magister dated

July 19, 2018 passed in C/48727 of 2013 is hereby set aside.

The criminal proceeding has mentioned above pending before

the Learned Metropolitan Magistrate 20th Court Calcutta is

hereby quashed.

CRR is allowed.

Pending connected CRAN applications are disposed of.

Any order of stay passed by this court during the

continuation of the instant criminal revision is also vacated.