Gauhati High Court
Page No.# 1/13 vs The State Of Assam And Anr on 28 February, 2025
Page No.# 1/13
GAHC010248122018
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1132/2018
M/S. TEA MECH (INDIA) AND ANR.
A PROPRIETORSHIP FIRM OF SRI AJAY HALDIA,
HAVING OFFICE AT 96D, KARAYA ROAD,
P.S. KARAYA, KOLKATA- 700019.
2: SRI AJAY HALDIA
S/O LATE AMAR NATH HALDIA
RESIDING AT 4 NEW TANGRA ROAD
BUILDING P.S. MARVELLA
FLAT NO. 7A
P.S. TANGRA
KOLKATA- 700046 AND PROPRIETOR OF M/S TEA MECH (INDIA)
HAVING OFFICE AT 96D
KARAYA ROAD
P.S. KARAYA
KOLKATA- 700019
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:M/S BRAHMAPUTRA BIOCHEM PVT. LTD.
A COMPANY REGISTERED UNDER THE PROVISION OF COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT 237/UNIT NO. 1896
EKT CO-OP HSG SOC
MOTILAL NAGAR NO. 1
ROAD NO. 4
OPP. GANESH GARDEN
GOREGAON MUMABAI- 400104
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MAHARASTRA AND LOCAL OFFICE AT 106.
RAMANI KUTIR
R.G. BARUAH ROAD
GANESHGURI
NEAR PUNJAB NATIONAL BANK
GUWAHATI- KAMRUP (M)
ASSAM
PIN - 781005
Advocate for the Petitioner : MR D DAS, MR. K GOOPTU,MR. N SHARMA
Advocate for the Respondent : PP, ASSAM, MR. M MAHANTA (R2),MR. T DEURI (R2),MR. K N
CHOUDHURY (R2)
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Date: 28.02.2025
1. Head Mr. K. Gooptu, learned counsel assisted by Mr. D. Das, the learned counsel
for the petitioners. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor for
State respondent no. 1 and Mr. K.N. Choudhury, the learned senior counsel assisted by
Mr. T. Deuri, learned counsel for the respondent no. 2.
2. This is an application u/s 482 Cr.PC read with Article 227 of the Constitution of
India challenging the impugned order dated 12.10.2018 passed by learned JMFC,
Kamrup (M), Guwahati in Complaint Case No. 4683 C/2017 thereby rejecting the
petition filed u/s 210 Cr.PC.
3. The brief facts of the case is that the petitioner no. 1 M/s. Tea Mech (India) is a
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proprietorship firm of Sri Ajay Haldia [petitioner no. 2] having its registered office at
96D, Karaya Road, P.S. Karaya, Kolkata. The petitioner no. 1 firm is engaged in
business as a manufacturer and supplier of engineering goods and processing machinery
for tea, sesame, nuts, grains industries. The respondent no. 2 company namely M/s.
Brahmaputra Biochem Private Limited [hereinafter referred to as BBPL] had entered
into a business relationship with the petitioner no. 1 and they also entered into an
agreement/contract accordingly. By the said agreement the respondent company was
also benefitted. But, respondent no. 2 company had always engaged in various illegal
ways to harm the petitioners and also threatened the petitioner no. 2 in this regard.
However, in pursuant to the trade agreement, the petitioners' company was supplying
various materials but, no payment was made towards purchase of grains against the
purchase orders by the respondent. Some purchase orders are relevant for the purpose of
adjudication of this petition, which were placed on 15.06.2015 by BBPL [respondent]
clearly mentions the dealings directly with the suppliers and traders and as such
involvement of the petitioners was limited to the extent only as a facilitator with the
payment of commission to the petitioners as managing agent especially in view and in
terms of the said agreement.
4. The respondent company could not carry out their business operations properly and
also failed to make payments to the suppliers/traders and therefore the business
transactions with the respondent company had been affected. The petitioners had huge
outstanding dues recoverable from the respondent company in pursuance of said
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agreement and on account of and for managing the grain handling and logistics.
Accordingly, the petitioners sent letter dated 05.09.2016 to the BBPL [respondent no. 2]
and demanded the outstanding amount of Rs. 84,64,998/- which was still payable by the
respondent no. 2. The petitioners made several requests for payment of the money but,
the respondent no. 2 by flimsy excuses one after another did not made any payment only
with an intention to defraud the petitioners. However, the dispute between the petitioners
and the respondent for non-payment of dues are purely commercial/civil in nature and in
spite of the existence of the said agreement, the respondent no. 2 without resorting to
any dispute resolution terms of the said agreement after laying gap of time suddenly
lodged a complaint dated 18.01.2017 before CID, Assam. Accordingly, the CID
registered the case as FIR No. 3/2017 dated 01.02.2017 u/s 406/408/420 IPC. The
respondent without considering the outstanding dues of Rs. 84,64,998/-, without any
basis or reason only with a malafide intention filed the counter-claim of Rs.
1,36,97,352/- only with the intention to defraud the petitioners from his legitimate dues.
However, after receiving the notice, the petitioners tried to contact the respondent no. 2
with a view to resolve the dispute in an amicable manner as per the terms of the
agreement. In the agreement to which both the parties entered, there was a specific
provision for adjudication of the matter by appointing a sole arbitrator at Kolkata and the
same is only subject to the Kolkata jurisdiction. For this reason the petitioner had time
and again made several requests and sent repeated reminder to the respondent no. 2 to
appoint an arbitrator and to resolve the dispute and differences between the parties.
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5. After registration of the FIR being CID (Assam) P.S. Case No. 03/2017, one of the
Directors from respondent no. 2 company, namely, one Arjun Arora came to Kolkata and
took the petitioner no. 2 to his office where he was also accompanied by some
unidentified persons who were subsequently disclosed their identity as Police Officers
from CID Department wherein the petitioner no. 2 was served with the photocopies of
the arrest memo, seizure list and also provided a notice u/s 50 and 41A of Cr.PC and
accordingly it is stated that he would be arrested and would be taken to Guwahati for
immediate custody. The petitioner no. 2 was then asked to put his signature on some
documents including some cheques which is the subject matter of the instant petition
and also asked him to transfer money as desired by them although, there was no liability
on the accused-persons to pay any money to the complainant as aforesaid. After
continuous threatening the petitioner no. 2 had no alternative and out of fear he signed in
some papers of proprietorship without his consent and also forced to put sign on some
cheques and thus they extorted money from the petitioner no. 2 and also made him
bound to put signature on the cheques and also forced him to handed over Rs. 20 lacs
through RTGS and thus the said cheque is the subject matter of C.R. Case No.
4683C/2017 and when put some signatures on some documents and cheques, he was
allowed to go. After the said incident, the petitioner was under utter shock and panic and
he was also compelled to send a letter to the complainant on 09.08.2017 through Speed
Post and also cited the entire incident and prayed for justice. Thereafter, the petitioner
approached the Court and on the basis of the complaint a case/proceedings initiated
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being Complaint Case No. 2640/2017 u/s 143/323/341/386/506/120B/34 IPC.
6. Thereafter, the petitioner no. 2 filed a criminal petition u/s 482 Cr.PC before this
Court for quashing of CID (Assam) P.S. Case No. 03/2017 and hearing the parties this
Court had stayed the further proceeding of this case by its order dated 10.10.2017.
Petitioners then decided to lodge a complaint. Thus vide the said CID (Assam) P.S. Case
No. 03/2017 dated 01.02.2017, the respondent no. 2 made illegal demands from the
petitioners which is not legally entitled by the respondent no. 2. The signatures were also
obtained by the respondent only threatening the petitioners for illegal gain of recovery of
Rs. 1,36,97,352/- and wherein the cheque amount is stated to be 81 lacs which they
obtained under threat and terrorizing the petitioners. When the respondent no. 2 was
unsuccessful to obtain money, he again lodged/instituted a case u/s 138 of the N.I. Act
which is the subject matter and the cheques are also the subject matter of the present
petition.
7. The petitioners only came to know about the pendency of this case only when he
received a notice in connection with the Complaint Case No. 4683 C/2017 u/s 138 of the
N.I. Act in respect of the cheques which were forcibly taken from petitioner no. 2 on
01.08.2017 and the alleged facts of the transaction also forms a part of the CID (Assam)
P.S. Case No. 03/2017 arising out of the agreement dated 16.01.2018 which also covers
the cheque of Rs. 81 lacs in question. Thus the case under the N.I. Act was filed
suppressing all the material facts before the learned Trial Court below.
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8. In view of such blatant and premeditated suppression of the facts with ulterior
motive by the respondent no. 2, the petitioners filed an application before the learned
Court below u/s 294 Cr.PC in the said proceedings pertaining to the said criminal
complaint. The respondent no. 2 while filing the written objection against the petition
filed u/s 294 Cr.PC did not dispute the contents made in the petition. However, all facts
including the judicial orders were strangely denied by the respondent no. 2 in their
written objection.
9. In the above circumstances, the petitioners filed an application u/s 210 Cr.PC before
the learned Trial Court below on 12.10.2018 praying to call for a police report from the
CID (Assam) regarding the status of the case of CID (Assam) P.S. Case No. 03/2017 and
also prayed to stay the proceedings of the criminal complaint till disposal of the
Criminal Petition No. 828/2017 pending before this Court. However, the learned Trial
Court below without properly and meticulously considering the facts and circumstances
of this case, rejected the said application on 12.10.2018.
10. On being highly aggrieved and dissatisfied with the order passed by the learned
Trial Court below dated 12.10.2018 by rejecting the petition filed u/s 294 Cr.PC., the
petitioners preferred the present criminal petition.
11. It is further submitted by Mr. Gooptu that the learned Trial Court below failed to
appreciate the facts and the subject matter with regard to the transactions and the
incidents in both the cases which ought to have been considered before passing the said
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interim order and mechanically passed the order without assigning any reason and
passed the order only in a routine manner.
12. The learned Trial Court below was erred in law by holding that the offence is
alleged to had been committed by the petitioners in the Criminal Complaint Case being
C.R. Case No. 4683C/2017 and the CID (Assam) P.S. Case No. 03/2017 are not same
and as such the provisions u/s 210 Cr.PC is not applicable for calling a report from CID
in connection with the CID (Assam) P.S. Case No. 03/2017. He further submitted that
the learned Trial Court below also failed to appreciate the fact that the alleged amount
which has been extorted by the respondent no. 2 from the petitioners, which is the
subject matter of the CID (Assam) Case No. 03/2017 is inclusive of all cheques amount
in the said criminal complaint case and the investigation of the CID case was also stayed
by this Court and any liability from the cheque in question against the petitioners does
not arise at all. Accordingly, it is submitted by Mr. Gooptu that the order of rejection
passed by the learned Trial Court below by rejecting the petition filed u/s 210 Cr.PC is
completely illegal, arbitrary and hence the same is liable to be set aside and quashed and
accordingly this is a fit case wherein the Court can exercise the power u/s 482 Cr.PC for
setting aside the impugned order passed by the learned Trial Court below. Further it is
submitted by learned counsel for the petitioners that vide order dated 10.10.2017 passed
by this Court in Criminal Petition No. 828/2017 which was filed in connection with CID
(Assam) P.S. Case No. 03/2017, the further proceeding in CID (Assam) P.S. Case No.
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03/2017 was stayed.
13. Further it is submitted by Mr. Gooptu, the learned counsel for the petitioners that
the CID (Assam) Case No. 03/2017 is already quashed by this Court vide order passed
in Criminal Petition No. 828/2017. Accordingly, it is submitted that it is a fit case
wherein the order passed by the learned Trial Court in C.R. Case No. 4683 C/2017 can be
set aside and quashed.
14. Mr. Gooptu further submitted that there is no ingredient to take cognizance against
the present petitioners. That, to attract the case of cheating there is necessary to show
that he had fraudulent and dishonest intention at the time of making the promise. In this
context he also relied on the decision passed by this Court, which was reiterated in 2022
4 GLR 573 [Ajay Haldia v. State of Assam and Another] and basically relied on para 28
of the said judgment which reads as under:-
"In Hridaya Rangan Pd. Verma and Others vs. State of Bihar, (2000) 4 SCC 168, it has been
held that to hold a person guilty of cheating is necessary to show that he had fraudulent or
dishonest intention at the time of making the promise. From his mere failure to keep up
promise subsequently such a culpable intention right at the beginning that is when he made
the promise cannot be presumed."
15. Mr. K.N. Choudhury, the learned senior counsel submitted in this regard that the
learned Trial Court below had rightly rejected the prayer made by petitioner u/s 210
Cr.PC and made a detailed discussion while rejecting the prayer made by the petitioner
u/s 210 Cr.PC. It is submitted by this Court that the cases are two different cases, one
relates to the dishonour of cheque which is registered u/s 138 of the N.I. Act and the
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other case was registered only u/s 420/406 IPC and that both the cases cannot be
considered as the case under the same footing. More so, the police case is already
quashed. Further he submitted that there is no scope for invoking Section 482 Cr.PC
and the Magistrate rightly passed the order by rejecting the prayer of the petitioner as
both the cases are different cases, procedures are also different, even the object of the
special jurisdiction is also different and hence the learned Trial Court below righty held
that the petition u/s 210 Cr.PC is not at all maintainable.
16. In this context, the learned counsel for the petitioners submitted that as the case of
CID (Assam) P.S. Case No. 03/2017 had already been quashed, the present petition may
be converted as a petition for quashing and the entire proceeding may be quashed
accordingly by invoking power u/s 482 Cr.PC.
17. Mr. Choudhury, the learned senior counsel submitted in this regard that the
conversion cannot be made at this stage as the entire petition is only against the order of
the learned Trial Court below or rejecting the prayer made by the petitioner u/s 210
Cr.PC and hence question of conversion does not arise at all.
18. Ms. S.H. Bora, the learned Additional Public Prosecutor submitted in this regard
that the learned Trial Court below had passed the order considering all aspects of the
case and also observing that both the cases are not similar cases and similar offence and
to call for a report u/s 210 Cr.PC and rightly rejected the prayer of the petitioners. She
further submitted that this is not at all a fit case for setting aside and quashing of the
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order passed by the learned Trial Court below by invoking the order u/s 482 Cr.PC.
19. Hearing the submissions made by learned counsel for both sides, I have also
perused the case record and annexures filed along with the petition. Accordingly, it is
seen that the present petition is being filed by the petitioner only for setting aside and
quashing of the order dated 12.10.2018 passed by learned JMFC, Kamrup in Complaint
Case No. 4683C/2017. It is the case of the petitioners that earlier the respondent no. 2
filed another CID (Assam) P.S. Case No. 03/2017 which was registered u/s 406 and 420
of the IPC but the subject matter of the said CID (Assam) P.S. Case No. 03/2017 is also
similar to the present case of C.R. Case No. 3204/2017 and the alleged extorted amount
by the present petitioners from the respondent no. 2 is inclusive of the cheque amount in
the instant case. From the record it is seen that a petition for quashing was also filed by
the petitioners praying for quashing of the CID (Assam) P.S. Case No. 03/2017 and
accordingly the further proceeding was also stayed by this Court vide order dated
14.11.2018 and which was registered as Criminal Petition No. 828/2017 was
subsequently allowed by quashing the CID Case No. 03/2017. During pendency of the
CID case, the complaint case u/s 138 of the N.I. Act was filed alleging the dishonour of
cheque amounting to Rs. 81 lacs. But, from the perusal of the records and the annexures
filed along with the petition, it is seen that the subject matter of both the cases cannot be
considered as same or similar one to pass any order to stay the proceedings by calling
any police report in connection with CID P.S. Case No. 03/2017. In CID P.S. Case No.
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03/2017 the allegation of misappropriation of money was amounting to Rs.
1,36,97,352/- whereas the Criminal Case No. 3204/2017 is only in connection with the
dishonour of cheque amounting to Rs. 81 lacs which is alleged to have been issued by
the present petitioners. Though it is alleged that the petitioner had to put his signature on
those cheques in question as he was forced to put the signature and threatened by the
respondent side by engaging some persons. But, that disputed question as to whether the
signature was put by the petitioner under compulsion etc. are the points to be decided at
the time of final hearing of the Complaint Case which is pending before the learned
JMFC, Kamrup u/s 138 of the N.I. Act. But, from the entire facts and circumstances of
the case, it is seen that the subject matter of both the proceedings cannot be considered
as same or similar to stay the proceedings of the criminal complaint case. More so, it is
also seen that the CID (Assam) Case No. 03/2017 has already been quashed by this
Court and hence the question of stay of the present proceeding also does not arise at this
stage. The learned Court below had passed the order discussing in detailed about the
provision of Section 210 Cr.PC and accordingly in the below mentioned para it has been
observed that :-
"On the other hand it is also clear that this instant case is u/s 138 NI Act and the other
case which investigation is pending is for offence u/s 406/408/420 IPC. Nature of offences
are different. Cause of actions are different. Procedures are different and even objects of the
two cases are different. The ingredients of the offences are also different.
Thus it is clear that this instant proceedings for the offence u/s 138 of NI Act and the
investigation being done by the CID against the accused are not in respect of the same
offence. Therefore, the petition filed by the accused side is hereby dismissed."
20. Further, the alternative prayer of the petitioners to convert the prayer of the present
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case for setting aside and quashing of the entire criminal proceeding also cannot be
entertained at present for quashing of the entire case by invoking power u/s 482 Cr.PC.
21. In view of above and considering all aspects of the case it is seen that the learned
Trial Court below committed no irregularity or mistake by passing the order dated
12.10.2018 by rejecting the prayer of the petitioners filed u/s 210 Cr.PC and hence there
is no reason for setting aside and quashing the said order by invoking the power u/s 482
Cr.PC and hence this Court is of the opinion that there is no need of any interference in
the order passed by the learned JMFC dated 12.10.2018 in C.R. Case No. 3204 of 2017.
22. Accordingly, the present petition is dismissed and disposed of.
JUDGE
Comparing Assistant
