Calcutta High Court (Appellete Side)
Sumit Roy vs The State Of West Bengal & Anr on 29 March, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 374 of 2019
Sumit Roy
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Kallol Kumar Basu,
Md. Jannat Ul Firdous.
For the State : Mr. Bidyut Kumar Roy,
Ms. Rita Datta.
Heard on : 27.02.2023
Judgment on : 29.03.2023
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Shampa Dutt (Paul), J.:
1. The present revision has been filed praying for setting aside of
an order dated 12.12.2018 passed by the Learned Judicial Magistrate,
2nd Court, North 24 Parganas in G.R. 1238/09 (CIS 1094/18) arising
out of Baguiati Police Station Case being No. 154/09 dated 15.05.2009
under Sections 467/468/471/420 of the Indian Penal Code pending
before the Court of 2nd Judicial Magistrate at Barasat.
2. The petitioner's case is that the husband of opposite Party No.
2 namely Soumen Sur expired in the year 2003. He had a business of
Cable Television Operator under the name and style of Lokenath
Electronics Pvt. Ltd. The petitioner was the manager of the said
business.
3. That after the death of the husband of the Opposite Party No.
2, the Opposite Party No. 2 became very close to the petitioner. In the
year 2006, opposite party No. 2 married the petitioner and the
petitioner left the job at Lokenath Electronics Pvt. Ltd.
4. Subsequently the Opposite Party No. 2 filed a suit for divorce
being MAT Suit No. 136 of 2014 under Section 27 of the Special
Marriage Act.
5. On 04.08.2017 a decree of divorce was granted. The Opposite
party No. 2 also initiated a criminal case under 498A of Indian penal
Code against the petitioner which is pending.
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6. The Opposite Party No. 2 lodged an information with the
Officer-in-Charge, Baguiati Police Station stating that she had a
business of cable TV operator by the name of Lokenath Electronics.
She appointed the petitioner as the collection agent and he
intentionally hampered her business. Such information was diarized
vide GDE 31 dated 01.05.2019.
7. On the basis of such GDE information the Opposite Party No. 2
filed a complaint being No. C 960/09 before the Learned Chief Judicial
Magistrate at Barasat under Section 156(3) of the Code alleging
commission of offence against the petitioner under Section
467/468/471/420 of the Indian Penal Code and praying for a
direction upon the Officer-in-Charge, Baguiati Police Station, to start a
case on the basis of such complaint. Pursuant to such order, Baguiati
Police Station being No. 154/09 dated 15.05.2009 was started against
the petitioner. Between 24th and 27th January, 2009 the petitioner
allegedly fled away with 300 such collection cards and withdrew cash
amounting to Rs. 60,000/- from UCO Bank. The petitioner forged the
name of the proprietorship on the cards and changed it to such a
name that it led to wrongful loss to the complainant.
8. On 31.08.2009 report in final form being No. 118/10 was
submitted by the Investigating Officer praying for discharge of the
petitioner. Accordingly, the petitioner was discharged from the said
case being Baguiati Police Station Case being no. 154/09.
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9. Thereafter the Opposite Party filed an application for further
investigation and such prayer for further investigation was rejected by
the Learned Chief Judicial Magistrate. The Opposite Party No. 2 then
filed a revisional application being no. 154/12 before the Learned
Sessions Judge at Barasat and the said application was allowed and
the Court directed the Learned Chief Judicial Magistrate to rehear the
petition of the de facto complainant. The Chief Judicial Magistrate,
Barasat was then pleased to allow the prayer for further investigation.
Charge Sheet No. 353/15 was submitted on 30th June, 2015 in
connection with the same case against the petitioner under Section
467/468/471/420 of the Indian Penal Code.
10. The Learned Magistrate on 12.12.2018 was pleased to reject a
prayer for discharge of the petitioner holding that there is sufficient
materials in case diary as well as in the record against the
petitioner/accused person for which he can be held liable under
Sections 467/468/471/420 of the Indian Penal Code and there is a
prima facie case against the petitioner.
11. It is submitted by the petitioner, that the impugned order dated
12.12.2018 is illegal, is not sustainable in law and therefore liable to
be set aside.
12. In spite of due service there is no representation on behalf
of the Opposite Party No. 2.
13. The state has placed the case diary.
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14. From the materials on record it is evident that:-
I. The parties in this case were married and were running a
cable operator business jointly.
II. Later dispute cropped up leading to divorce and subsequent
filing of this case.
III. Initially the case ended in FRT and the petitioner was
discharged.
IV. Prayer for further investigation was rejected by the
magistrate.
V. As per direction of the session judge, further investigation
was directed, which ended in a Charge Sheet.
15. Hence the revision.
16. The offence alleged is under Sections 467/468/471/420 of
Indian penal code.
17. The allegation of withdrawal of Rs. 60,000 by the petitioner is
from their JOINT ACCOUNT, allegedly without the complainant's
consent.
18. Section 467 of the Indian Penal Code, lays down:-
"467. Forgery of valuable security, will, etc.--
Whoever forges a document which purports to be a
valuable security or a will, or an authority to adopt a son,
or which purports to give authority to any person to make
or transfer any valuable security, or to receive the
principal, interest or dividends thereon, or to receive or
deliver any money, movable property, or valuable
security, or any document purporting to be an acquittance
or receipt acknowledging the payment of money, or an
acquittance or receipt for the delivery of any movable
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property or valuable security, shall be punished with
imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.
Ingredients of offence.--The essential ingredients of
the offence under Section 467 are as follows:-
(1) Accused committed forgery.
(2) He did so by preparation of a forged document or
electronic record in the manner provided in Sections
463 and 464."
19. Section 468 of the Indian Penal Code, lays down:-
"468. Forgery for purpose of cheating.--Whoever
commits forgery, intending that the [document or
electronic record forged] shall be used for the purpose of
cheating, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine.
Ingredients of offence.--The essential ingredients of
the offence under Section 468 are as follows:-
(1) There should be a forgery in respect of the
document or electronic record in question.
(2) The intention of the forgery should be that the
forged document or electronic record is to be used
for the purpose of cheating.
(3) There should be forgery with particular intent."
20. Section 471 of the Indian Penal Code, lays down:-
"471. Using as genuine a forged document.--
Whoever fraudulently or dishonestly uses as genuine any
[document or electronic record] which he knows or has
reason to believe to be a forged [document or electronic
record], shall be punished in the same manner as if he
had forged such [document or electronic record].
Ingredients of offence.--The essential ingredients of
the offence under Section 471 are as follows:-
(1) The accused fraudulently or dishonestly used a
document or electronic record as genuine.
(2) The accused knew or had reason to believe that the
document or electronic record was a forged one."
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21. Section 420 of the Indian Penal Code, lays down:-
"420. Cheating and dishonestly inducing delivery of
property.--Whoever cheats and thereby dishonestly
induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or any
part of a valuable security, or anything which is signed or
sealed, and which is capable of being converted into a
valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven
years, and shall also be liable to fine.
Ingredients of offence.-- The essential ingredients of
the offence under Sec. 420 are as follows:-
(1) There should be fraudulent or dishonest
inducement of a person by deceiving him;
(2) (a) The person so induced should be
intentionally induced to deliver any property to any
person or to consent that any person shall retain any
property, or
(b) the person so induced to do anything which he
would not do or omit if he were not so deceived, and
(c) in cases covered by second part of clause (a), the
act or omission should be one which caused or was
likely to cause damage or harm to the person induced
in body, mind or property.
The two essential ingredients of the offence under this
section are -
(A) Deceit, that is to say dishonest or fraudulent
misrepresentation, and
(B) Inducing the person deceived to part with
property."
22. The materials in the present case clearly shows that the
dispute between the parties is civil in nature (material and business
related) and there is no materials on record to even prima facie show
that the petitioner has committed the offence of forgery or cheating.
There is also no ingredient to show that the complainant was
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dishonestly induced to deliver any property. The parties have
developed all these disputes after their divorce in respect of their
business.
23. The Supreme Court in Mitesh Kumar J. Sha vs. The State of
Karnataka & Ors. (Criminal Appeal no. 1285 of 2021) while
considering an appeal against an judgment and order of the High
Court of Karnataka in an application under Section 482 of the
Cr.P.C. wherein the prayer of the petitioners for quashing of
proceedings of offence punishable under Section 406, 419, 420 read
with Section 34 of the IPC was dismissed, held:-
"26. Having perused the relevant facts and
contentions made by the Appellants and Respondents
herein in our considered opinion, the following three
key issues require determination in the instant case:
- Whether the necessary ingredients of offences
punishable under Sections 406, 419 and 420 are
prima facie made out?
- Whether sale of excess flats, even if made, amounts
to a mere breach of contract or constitutes an offence
of cheating?
- Whether the dispute is one of entirely civil
nature and therefore liable to be quashed?
Whether the necessary ingredients of offences
punishable under Sections 406, 419 and 420 are
prima facie made out?
37. Although, there is perhaps not even an iota of
doubt that a singular factual premise can give rise to
a dispute which is both, of a civil as well as criminal
nature, each of which could be pursued regardless of
the other. In the instant case, the actual question
which requires consideration is not whether a
criminal case could be pursued in the presence of a
civil suit, but whether the relevant ingredients for a
criminal case are even prima facie made out. Relying
on the facts as discussed in previous paragraphs,
clearly no cogent case regarding a criminal breach of
trust or cheating is made out.
".................Whether the dispute is one of entirely
civil nature and therefore liable to be quashed?
41. Having considered the relevant arguments of the
parties and decisions of this court we are of the
considered view that existence of dishonest or
fraudulent intention has not been made out against
the Appellants. Though the instant dispute certainly
involves determination of issues which are of civil
nature, pursuant to which Respondent No. 2 has even
instituted multiple civil suits, one can by no means
stretch the dispute to an extent, so as to impart it a
criminal colour. As has been rightly emphasised upon
by this court, by way of an observation rendered in
the case of M/s Indian Oil Corporation Vs. M/s.
NEPC India Ltd & Ors., as under :-
"14. While no one with a legitimate cause or grievance
should be prevented from seeking remedies available
in criminal law, a complainant who initiates or
persists with a prosecution, being fully aware that the
criminal proceedings are unwarranted and his
remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law."
42. It was also observed:-
"13. While on this issue, it is necessary to take notice
of a growing tendency in business circles to convert
purely civil disputes into criminal cases. This is
obviously on account of a prevalent impression that
civil law remedies are time consuming and do not
adequately protect the interests of
lenders/creditors....There is also an impression that if
a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and
claims, which do not involve any criminal offence, by
applying pressure though criminal prosecution should
be deprecated and discouraged."
43. On an earlier occasion, in case of G. Sagar Suri
and Anr. Vs. State of UP and Ors., this Court has
also observed:-
"8. Jurisdiction under Section 482 of the Code has to
be exercised with a great care. In exercise of its
jurisdiction High Court is not to examine the matter
superficially. It is to be seen if a matter, which is
essentially of civil nature, has been given a cloak of
criminal offence. Criminal proceedings are not a short
cut of other remedies available in law. Before issuing
process a criminal court has to exercise a great deal
of caution. For the accused it is a serious matter. This
Court has laid certain principles on the basis of which
High Court is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this Section has to
be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice."
44. Furthermore, in the landmark judgment of State
of Haryana & Ors. Vs. Ch. Bhajan Lal and Ors.
regarding exercise of inherent powers under section
482 of CrPC, this Court has laid down following
categories of instances wherein inherent powers of
the can be exercised in order to secure the ends of
justice. These are:-
"(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) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying
an investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the
Code;
(3) where the uncontroverted allegations made in the
FIR or 'complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the
accused;
(4) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused;
(6) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(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."
45. Applying this dictum to the instant factual matrix,
it can be safely concluded that the present case
clearly falls within the ambit of first, third and fifth
category of the seven categories enlisted in the above
said judgment. The case therefore warrants
intervention by this Court, and the High Court has
erred in dismissing the petition filed by the Appellants
under section 482 CrPC. We find that there has been
attempt to stretch the contours of a civil dispute and
thereby essentially impart a criminal color to it.
46. Recently, this Court in case of Randheer Singh
Vs. The State of U.P. & Ors., has again reiterated
the long standing principle that criminal proceedings
must not be used as instruments of harassment. The
court observed as under:-
"33. ....There can be no doubt that jurisdiction
under Section 482 of the Cr.P.C. should be used
sparingly for the purpose of preventing abuse of the
process of any court or otherwise to secure the ends
of justice. Whether a complaint
10. Criminal Appeal No. 932 of 2021 (decided on
02.09.2021) discloses criminal offence or not depends
on the nature of the allegation and whether the
essential ingredients of a criminal offence are present
or not has to be judged by the High Court. There can
be no doubt that a complaint disclosing civil
transactions may also have a criminal texture. The
High Court has, however, to see whether the dispute
of a civil nature has been given colour of criminal
offence. In such a situation, the High Court should not
hesitate to quash the criminal proceedings as held by
this Court in Paramjeet Batra (supra) extracted
above."
47. Moreover, this Court has at innumerable
instances expressed its disapproval for imparting
criminal color to a civil dispute, made merely to take
advantage of a relatively quick relief granted in a
criminal case in contrast to a civil dispute. Such an
exercise is nothing but an abuse of the process of law
which must be discouraged in its entirety.
48. In view of the above facts and discussions, the
impugned order dated 13.08.2019 passed by the
High Court of Karnataka is set aside. The impugned
F.I.R. No. 185 of 2016 dated 29.03.2016 and
proceedings in C.C.No. 20609 of 2017 on the file of VI
Additional CMM, Bengaluru, in pursuance of charge
sheet dated 29.03.2017 against the appellants for
offences under Sections 406, 419, 420 read
with Section 34 IPC stands quashed."
24. The dispute is between a husband and wife (now divorced)
and relates to their business and also their joint Bank Account.
25. In the Present case there is no substance in the allegations and no
material exists to prima facie make out the complicity of the applicant in
a cognizable offence, as such the proceedings in this case should be
quashed and this is a fit case where the inherent powers of the Court
should be exercised.
26. CRR 374 of 2019 is allowed.
27. The proceedings being G.R. Case No. 1238 of 2009
corresponding to Baguiati Police Station Case No. 154/09 dated
15.05.2009 under Sections 467/468/471/420 of the Indian Penal
Code, pending before the learned Judicial Magistrate, 2nd Court,
Barasat, North 24 Parganas, is hereby quashed.
28. There will be no order as to costs.
29. All connected Application stand disposed of.
30. Interim order if any stands vacated.
31. Copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
32. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
