Barun Kumar Biswas vs State of West Bengal and Others

Subrata Talukdar, J.—In this application under Section 482 of the Code of Criminal Procedure, 1973 (as amended and for short Cr.P.C.) the petitioner prays for quashing of proceedings being ACGR Case No. 1238 of 2011 presently pending before the Ld. Additional Chief Judicial Magistrate, Alipore, South 24 Parganas arising out of Survey Park Police Station Case No. 34 of 2011 dated 29th September, 2011 under Sections 406/418 of the Indian Penal Code (for short IPC) and all orders passed therein including the orders dated 30th January, 2012 and 31st March, 2012.

Sri Himangshu De, Ld. Senior Counsel ably assisted by Sri Sourav Chatterjee, Ld. Counsel appearing for the petitioner have argued that the petitioner and the Opposite Party No. 2 (for short OP2) constituted a partnership firm named and styled as M/s. Divine Construction Company by executing a partnership deed on the 28th of June, 2007.

On the 6th of June, 2011 the OP2 filed an application under Section 156(3) Cr.P.C. alleging, inter alia, that the petitioner had fraudulently encashed a cheque of Rs. 16, 80, 000/-.

According to OP2 on 25th May, 2011 a cheque of the said amount was deposited in the partnership account of the firm. The said cheque amount was in respect of the sale proceeds of a flat.

It is the further contention of the OP2 that on 28th May, 2011 he signed a blank cheque payable to one Badal Sarkar, their painter and sent it to their plumber for making a payment of Rs. 10, 000/-. However, OP2 was surprised and shocked to receive an intimation from their Bank on 31st May, 2011 that an amount of Rs. 16, 50, 000/- has been deducted from the bank account of the partnership firm and transferred to the personal account of the petitioner.

Since no explanation was forthcoming from the petitioner with regard to transfer of the said amount to his personal account, on the 1st of July, 2011 the OP2 filed a Title Suit for dissolution of the partnership firm and injunction. The said suit was numbered as Title Suit No. 163 of 2011 and by order dated 1st July, 2011 the prayer of the petitioner for ad-interim injunction was refused by the Ld. Trial Court. The said Title Suit is being contested by the petitioner.

O.P. 2 thereafter caused to be filed the criminal complaint under Section 156(3) Cr.P.C. which was registered as Purba Jadavpur Police Station Case No. 111 of 2011 dated 11th June, 2011 and subsequently transferred to Survey Park Police Station renumbered as Survey Park Police Station Case No. 34 of 2011 dated 29th September, 2011. The criminal complaint was allowed to be investigated by the Ld. Sessions Court, Alipore and culminated in a chargesheet against the petitioner being Chargesheet No. 03 of 2012 dated 27th January, 2012 under Sections 406/418 of the IPC. By further order dated 31st March, 2012 the Ld. Magistrate was pleased to permit the petitioner to operate his bank account after keeping a minimum balance of Rs. 16, 50, 000/-.

Ld. Counsel for the petitioner makes the primary argument that the entire proceedings are civil in nature. It is pointed out that the OP2 filed a civil suit for dissolution of partnership and failed to get any ad-interim order in the suit. OP2 therefore ought not to be permitted the privilege of filing the instant criminal complaint by way of an epilogue.

It is also strenuously argued by Ld. Counsel for the petitioner that following the ratio of the Full Bench Decision of this High Court reported in Bhuban Mohan Das Vs. Surendra Mohan Das, AIR 1951 Cal 69 : (1951) 1 CALLT 72 : 55 CWN 541 : (1952) 2 ILR (Cal) 23 , it is now law settled that a partner holds the assets of the partnership firm on behalf of the other partner(s) in common and, until dissolution of the firm with its accounts it cannot be said that he holds the property in a fiduciary capacity. The Hon''ble Full Bench further held that unless it is proved that a partner in a partnership firm holds a property by way of a special agreement or entrustment there cannot be any charge of breach of trust against the said partner. In the absence of any special agreement or entrustment each partner shall be deemed to be interested in the whole of the assets of the partnership and the possibility of attracting Section 406 IPC to a particular transaction must be held to be absent in the absence of a special contract.

Ld. Counsel for the petitioner has elaborated the abovenoted argument by relying upon an Hon''ble Single Bench decision of this Court in CRR 3391 of 2005 in the matter of Smt. Shuamarani Garg and Anr. v. The State of West Bengal and Anr. wherein it is described that the relationship between partners is virtually like that of ''comrades in arms''. Relying on the decision in Naba Kumar Banerjee Vs. State of West Bengal and Another, (2008) 1 CALLT 361 : (2008) CriLJ 1180 . following the decision in Bhuban Mohan Das Vs. Surendra Mohan Das, AIR 1951 Cal 69 : (1951) 1 CALLT 72 : 55 CWN 541 : (1952) 2 ILR (Cal) 23 it is further sought to be argued that in the absence of any partner having dominion over the property of the partnership firm and, on failure of the other partner(s) to prove entrustment with the property, no criminal action under Sections 406 and 420 IPC can survive.

On the allegation of the OP2 that the petitioner filled up a blank cheque signed by the OP2 and therefore committed forgery Ld. Counsel for the petitioner relying upon the decision of the Hon''ble Apex Court in JTH Zwart and Ors. v. Indrani Mukherjee reported in 1990 C CrLR (Cal) 1 urged the point that incorporation or inclusion of a false statement in a document would not ipso facto make the document false for, a document to be false it has to tell a lie about itself. Ld. Counsel argued that in the facts of the present case it is not denied that the cheque in question was signed by the OP2 and the amount in question was legally within the common dominion of the partnership firm.

Ld. Counsel further pointed out that during the period when an interim order of stay of the criminal proceedings was pending as passed by this Hon''ble Court in the present application, the investigating agency filed a supplementary chargesheet on the 15th of October, 2015 before the Ld. ACJM, Alipore without obtaining the leave of this Court. In the supplementary chargesheet the offence of forgery under Sections 468 and 471 IPC has been included. According to Ld. Counsel, such filing of a supplementary chargesheet in the face of an order of stay of proceedings is bad in law. Additionally, having regard to the decision in 1990 CrLR (Cal) 1 (supra) no element of forgery can be said to have been committed by the petitioner being a partner of the firm.

Per contra Sri Siladitya Sanyal, Ld. Counsel appearing for the OP2 submits that the cheque constituted a document of special entrustment in as much as the amount was meant to be paid to the painter, one Badal Sarkar and against such payment the said painter had given an advance receipt of Rs. 10, 000/-. Sri Sanyal has further argued that such point can only be decided in the trial.

Relying on the decision of the Hon''ble Apex Court reported in 2009 (3) SCC (Cri) 824 in the matter of Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and Others Sri Sanyal argues that cheque is a property within the meaning of Section 405 IPC and when a blank cheque is issued for one purpose but misappropriated for a personal purpose or, used for a purpose for which the cheque was not issued, a case under Section 406 IPC is made out. Ld. Counsel also points out that it is open at the trial for the petitioner to raise the defence that the cheque was not meant to be used towards discharge of a particular purpose or in discharge of a special entrustment but the same was issued in the normal course of the partnership business and the petitioner exercised dominion in common with the OP2.

Arguing that the inherent jurisdiction of this Court under Section 482 Cr.P.C. must be sparingly exercised, Sri Sanyal submits that the question whether the petitioner committed forgery or not is also required to be examined at the trial. Drawing the attention of this Court to the expert opinion of the document in question viz. the cheque, Sri Sanyal argues that from the report it transpires that the person who signed the cheque has not written the amount on the cheque. Ld. Counsel also points out to Paragraph 11 of the written statement filed by the petitioner as defendant in the title suit in which it has been, inter alia, averred that neither the plaintiff-OP2 signed on a blank cheque nor the defendant-petitioner fraudulently got the amount transferred to his savings bank account. At Paragraph 11 it is further stated that the plaintiff-OP2 signed the cheque and duly filled up the amount of Rs. 16, 50, 000/- in favour of the defendant-petitioner towards ad hoc payment of his share of the business to which the petitioner is legitimately entitled.

Sri Sanyal, Ld. Counsel argues that in view of the obvious discrepancy between the expert report on the questioned document, that is the cheque, compared to the statements made at paragraph 11 of the written statement the truth needs to be unearthed at the trial.

Ld. Counsel also relies upon a decision of the Hon''ble Apex Court Debabrata Gupta Vs. S.K. Ghosh, (1970) 1 SCC 521 : (1970) 1 SCC(Cri) 221 : (1970) 3 SCR 765 . On the question of special entrustment of a property by a partner or the issue that the partner was holding any property in a fiduciary capacity, the Hon''ble Apex Court refused to interfere at a stage when complete facts could not be said to be forthcoming at the end of a proper investigation and enquiry.

Ld. Counsel for the OP2 further submits that the order of stay by this Hon''ble Court was granted on 13th August, 2012. There was no order of stay in force between 31st March, 2013 till the 11th of August, 2014. During the latter period the investigating agency prayed for further investigation on the 18th of March, 2014.

Ld. Counsel submits that therefore there is no illegality in the order of the Ld. Magistrate allowing further investigation as prayed for by the investigating agency.

Sri Subir Banerjee, Ld. Additional Public Prosecutor submits that a fresh interim order was passed on 12th August, 2014. Drawing the attention of this Court to the order dated 29th October, 2014 appearing at page 36 of the supplementary affidavit filed on behalf of the petitioner, Sri Banerjee submits that the investigation was not stayed. The supplementary chargesheet in respect of forgery was filed on the 27th of October, 2014.

Drawing the attention of this Court to pages 32 and 33 of the supplementary affidavit Ld. Additional Public Prosecutor submits that the petitioner had complete knowledge of the proceedings continuing before the Ld. Magistrate and, of the fact that a prayer for further investigation was allowed by the Ld. Trial Court. However, the petitioner made no effort to agitate such fact before this Hon''ble Court. The petitioner also did not cooperate with the direction of the Ld. Magistrate for giving specimen hand writing. Furthermore, at the stage of passing a fresh interim order on 12th August, 2014 it was not pointed out by the petitioner before this Hon''ble Court that further investigation may be stayed.

Inspite of the non-cooperation of the petitioner with the repeated orders passed by the Ld. Trial Court requiring him to submit his specimen handwriting, in the course of investigation the material document being the cheque in question was submitted to the Bureau of Question Documents and expert opinion obtained. According to the expert opinion the person who executed the specimen writing did not execute the amount on the cheque. Therefore, Ld. Additional Public Prosecutor points out that a prima facie case under Sections 465/468/471 IPC was found to be established in addition to the earlier charge under Sections 406/418 IPC and accordingly a supplementary chargesheet was filed.

Having heard the parties and considering the materials on record as well as the law on the subject argued by Ld. Counsel for all sides this Court is of the opinion that whether the cheque in question being a property was entrusted to the petitioner for a special purpose and instead of fulfilling such special purpose the cheque amount was misappropriated and a charge under Section 406 IPC filed deserves to be examined at the trial. This Court also cannot lose sight of the fact that the petitioner has taken a grossly inconsistent stand in his written statement filed in the title suit compared to his failure to cooperate with repeated orders passed by the Ld. Counsel for submitting his specimen handwriting. While respectfully noticing the proposition laid down in the Full Bench Decision reported in Bhuban Mohan Das Vs. Surendra Mohan Das, AIR 1951 Cal 69 : (1951) 1 CALLT 72 : 55 CWN 541 : (1952) 2 ILR (Cal) 23 , the further fact cannot be lost sight of that at the stage exercising jurisdiction under Section 482 Cr.P.C. this Court must be careful to notice whether on the face of the records any special purpose of a particular document in question can be appreciated without the parties adducing evidence in the trial. Also, the mens rea or, the absence of it, on the part of the petitioner qua the cheque by refusing to furnish his specimen handwriting also needs to be examined in the trial.

In the background of the above discussion this Court is therefore persuaded to hold that the petitioner is required to establish his defence in the trial.

For the above reasons no relief can be granted in CRR 2641 of 2012 which is accordingly dismissed.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.