Bina Rani Radhakrishnan Nair vs The State of West Bengal and Others

Sudip Ahluwalia, J.—1. In this Revisional application the petitioner, who is a lady based in the State of Kerala, has prayed for quashing the proceedings arising out of Hare Street PS Case No. 432 of 2011 dated 24.7.2014, under Sections 408/468/471/477A/120B of the IPC.

One Siddhartha Roy who is the authorized representative of the Opp. Party No. 2/de-facto complainant namely ''M/s. Birla Tyres'' had filed a written complaint under Section 156(3) of the Criminal Procedure Code, 1973, before the Court of the Learned Chief Metropolitan Magistrate, Calcutta against the present petitioner and another co-accused person. Thereafter the Chief Metropolitan Magistrate directed the Officer-In-Charge of Hare Street Police Station to investigate into the matter.

The allegations in the aforesaid complaint were that co-accused person namely Baiju Radhakrishnan joined Birla Tyres on 02.05.1994 and continued till 28.06.2001 as Deputy General Manager (Export) of the said Company. Thereafter, he left the organization, but subsequently approached the higher management and rejoined the Company on 18.05.2011 as Vice-President, International Business. On and from 01.04.2013, the said co-accused person shouldered the responsibility of being the Chief of International Business. During such period he had been looking after the export business of Birla Tyres on his own. He was authorized to deal with overseas clients/customers of the Company, and for the supply of materials and realization/recovery of the sale proceeds for the supplies made by the company. Utmost trust and faith was reposed in him by the company so that he could increase the exports for earning Foreign Exchange for the Company. It was also alleged that the said co-accused person was bound by the rules and regulations of the Company and was to maintain transparency in connection with the business for retaining the global goodwill and the relations of the Company in International Market. He however did not disclose any information about his personal interest relating to the business of the Company, to its management. On 12.03.2014, he tendered his resignation which was not accepted by the Company as there were various dues that were to be realized from various customers dealt with the co-accused person. There were certain discrepancies as well with regard to the Company''s records on account of dues from its overseas customers as represented by such customers from time to time. The Company therefore informed the said co-accused person that until and unless the statement of accounts of overseas business under the supervision of the co-accused person was settled to the satisfaction of the company, he would not be released and would be liable for his obligation to settle such vital financial issues. However, the co-accused person stopped coming to office on his own volition. Owing to such circumstances the Company through its other representatives started negotiating with various overseas customers to finalize its accounts concerning its International Business. During such interaction with a particular Beirut based customer namely, Darwish and Al Mona Trading Sal; Corniche Al Mazraa, Crown Centre, G.F. Beirut Lebanon, from its concerned person Mr. Bachir Al Darwich, the Company learnt that the co-accused person as the Chief of its International Business had entered into diverse business transactions on behalf of the Company with the said organization during the financial years 2011-12, 2012-13, 2013-14 with a closing balance as on 31.03.2014 to the tune of Rs. 22,58,03,673.18 (Rupees Twenty Two crores Fifty Eight Lacs Three Thousand Six Hundred and Seventy Three and eighteen paisa). It was further alleged that out of the said outstanding balance due to the Company, the co-accused person had diverted a sum of Rs. 3,93,48,533/- (Rupees Three Crore Ninety Three Lacs Forty Eight Thousand Five Hundred and Thirty Three) to his own account by misrepresentation and fraud. It was further alleged that a sum of Rs. 26,82,500/-(Twenty Six Lacs Eighty Two Thousand five hundred) was also realized by the co-accused person from the Beirut based company in cash. Various other sums were paid to the co-accused person by the Beirut based company through a vendor amounting to Rs. 93,06,000/- while transfer was also made through Exchange Company at Dubai in favour of the co-accused person to the tune of Rs. 22,00,000/-. Furthermore, it was alleged that a payment of Rs. 1,31,80,900 was made by way of transfer to Inter World Shipping Agency LLC Dubai. It was alleged that all such payments were made by the Company''s customer being Beirut based buyer and such amounts were payable to Birla Tyres and the same was done under the supervision of the co-accused person. It was further alleged that the co-accused person had wrongfully misutilised his position in conspiracy with the petitioner, and thus caused serious loss and damages to the Company.

The petitioner contends that she has wrongly been arraigned as an accused person in the aforesaid complaint/FIR, although she was never involved in the commission of any of the alleged offences, and was in no way connected with any of the affairs of the co-accused person or the complainant. Her further contention is that the written complaint along with all the materials on record prima-facie do not disclose any criminal offence by her whatsoever, and that the same was filed with an oblique motive of putting undue pressure on her brother i.e., the co-accused Baiju Radhakrishnan. It is also contended that the petitioner had no dealing whatsoever at any time with the complainant nor her company "Brizo Tyres" did have any transaction within the State of West Bengal, and so the local Police/Courts have no territorial jurisdiction to entertain the matter. She therefore seeks quashing of the criminal proceeding as, according to her, it is an abuse of the process of the Court.

It has also been argued on behalf of the petitioner that even otherwise the FIR is liable to be quashed since it was drawn up on the basis of a complaint under Section 156(3) Cr.P.C, which had not been preceded by the requisite mandatory steps in terms of Section 154(3).

The Revision has been opposed on behalf of the State as well as the defacto complainant. Their contention is that the FIR is well maintainable within the territory of West Bengal, and does not suffer from any legal defects as asserted on behalf of the petitioner. It transpires from the material placed before this Court that the co-accused happens to be the petitioner''s own brother, and that both of them were the Directors of a Company namely "Brizo Tyres & Wheel Systems Pvt. Ltd". It has also transpired that the co-accused Baiju Radhakrishnan had apparently represented that their Company was a sister concern of ''Birla Tyres'', and in this manner induced the aforesaid the Beirut based Company to transfer an amount of Rs. 1,19,79,133/- (Rupees one crore nineteen lacs seventy nine thousand and hundred and thirty three) in its account, which was actually payable to "Birla Tyres". It is therefore the contention of both the Opposite parties that the petitioner was involved in the conspiracy with the co-accused and so the revision is liable to be dismissed. Both sides have placed certain decisions before this Court in support of their respective contentions.

The foremost contention of the petitioner in challenging the FIR is that it is liable to be quashed since the complaint under Section 156(3) was made without following the prescribed procedure in terms of Section 154(3).

In "Dilawar Singh v. State of Delhi" reported in , 2007 (4) AICLR, it was observed -

"10. When information given at the Police Station, normally two courses are open. A station diary entry can be made or the FIR registered. In case there is any deviation, recourse to Section 154(3) has to be made. If that does not yield any result a complaint can be filed."

The more recent decision cited in this behalf happens to be

"Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors." [, 2015 CRI.L.J. 2396] in which the Supreme Court held - "27. In our considered opinion, a stage has come in this country where Section 156(3), Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the Learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the Learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the Learned Magistrate would also be aware of the delay in lodging of the FIR."

Now in the present case it transpires that the requisite compliance in terms of Section 154(3) Cr.P.C by way of approaching the superior Police Officer was admittedly not done. In fact in Para- 17 of the complaint petition it has been mentioned -

"17. In the facts and circumstances, the complainant lodged an FIR with the Hare Street Police Station on 10th July, 2014 but at the time of receiving such FIR the officer concerned advised the representative of the complaint to obtain an order from the Ld. Court in view of the seriousness of the charge made and for taking immediate action thereon. A copy of the said FIR is annexed hereto and marked with letter ''D''"

The complainant has thus tried to explain the omission in the matter of compliance with the Section 154(3) Cr.P.C by contending that it was not ''aggrieved'' by any refusal of the Police Station to register the FIR, but filed the complaint under Section 156(3) in Court actually on the advice of the Police. This explanation per se would not appear to negate the consequence of non-compliance of Section 154(3) in terms of the Judgment in "Priyanka Srivastava" (supra). The contention of the complainant however, is that the said decision cannot liable be applied at its face value in the facts and circumstance of the present case. The factual background in the decision cited was that a certain Bajaj Family had borrowed considerable money from Punjab National Bank Finance Co. Ltd., but failed to repay the loan. The Bank commenced proceedings under the Securitization (SARFAESI) Act, 2002. With a view to intimidate the Bank officers, repeated criminal complaints were filed by the members of the Bajaj Family. This was done to compel the officers to accept a "one time settlement" amounting to Rs. 15 lacs. One of those complaints was also quashed. It was in such background, that the Supreme Court held that before directing registration of the FIR under Section 156(3), the Magistrate must apply his mind and only thereafter the matter of investigation and registration of FIR should be made, since it was of the unambiguous view that the attempts of Bajaj Family constituted an abuse of process of Court. As such undoubtedly the observations of the Supreme Court in Para- 27 therein were made in the context of the manifestly mischievous and motivated conduct of the complainants in the case who had resorted to several frivolous number of litigations prior to the complaint under Section 156(3), of which previous proceedings, the Supreme Court itself had taken detailed note in the Judgment.

It is in this backdrop the complainant has relied upon the Judgment in -"Haryana "Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr." [, AIR 2002 SC 834] to emphasise that the decision in "Priyanka Srivastava (supra) would not be applicable in the facts and circumstances of the present case. In the judgment cited, the Supreme Court had observed -

"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid''s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judge to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima ventral of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by the most distinguished judges."

The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

XXX XXX XXX

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

The complainant in the present case has pointed out that there is no history of any previous litigation nor any other complaint was ever filed by it against either of the accused persons. In fact, the complainant had honestly placed on record a copy of the original FIR meant to be filed on its behalf on 10th July, 2014, which was apparently returned back by the Police Station at 18:15 hours with the advice to approach Court Under Section 156(3) Cr.P.C. The complainant has also placed on record the certificate issued by the Notary who attested the affidavit of the complainant''s authorized representative Siddhartha Roy, before filing the complaint under Section 156(3) on the following day. It has been revealed therein that the affidavit was attested at around 8.15 p.m. on 10th July, 2014. It thus becomes clear that the fresh complaint under Section 156(3) was redrafted, typed and got attested within two hours after the original FIR was allegedly returned by the Police Station. In such circumstances, the omission of the complainant to strictly comply with the provisions of Section 154(3) would appear to be condonable in the present case, considering that there is no history of any earlier frivolous litigations or complaints lodged on its behalf, which was however the distinguishing feature in "Priyanka Srivastava (supra). As such this Court is of the opinion that the complaint is not liable to be quashed on this particular ground of non-compliance with Section 154(3).

Again, the contention that the Police authorities or the Courts in West Bengal do not have territorial jurisdiction to entertain the matter since no part of the alleged offences took place here is also fallacious in view of Section 181(4) of the Cr.P.C, since the amount allegedly received by the company "Brizo Tyres" wrongfully, ought to have otherwise been received by the complainant which is based in Calcutta.

However, as noted earlier, it is also the petitioner''s case that the complaint against her has been filed with an oblique motive of putting undue pressure on her brother i.e., the co-accused Baiju Radhakrishnan, although she was in no way connected with any of his business affairs, or with the complainant. It has also been asserted on her behalf that the FIR does not disclose any criminal offence by her whatsoever, and consequently the same is liable to be quashed in view of the settled law.

In "State of Haryana v. Bhajan Lal" [, 1992 Supp (1) SCC 335, the Supreme Court, in enumerating the various situations in which criminal proceedings may be quashed under Section 482, had observed -

"102) In the backdrop of the interpretation of the various relevant provision of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, thought it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cased wherein such power should be exercised:

(1) Where the allegations made in the first information report of 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 FIR 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) ................(Not applicable)

(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) ................(Not applicable)

(7) Where a criminal proceeding is manifestly attended with malafide 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."

The next citation on the half of the petitioner happens to be "R. Kalyani v. Janak C. Mehta And Ors. , (2009) 1 SCC (Cri) 567". The relevant extracts from the facts in that case as noted by the Supreme Court, and its decision on the same are set out below -

"20. LKP Shares and Securities Ltd. (the company) is a company registered and incorporated under the Companies Act, 1956. Whereas Respondent I is its President, the second respondent is its Branch Coordinator. Both of them are stationed at Bombay which is its headquarters. It has many branches including the one at Chennai. Every branch is said to be an independent entity.

Respondent 3 who has been arrayed as accused 3 in the FIR was the Branch Manager of the company at Chennai. Indisputably, all interactions and transactions by and between the appellant and the company, if any, were made by the complainant only with Respondent 3.

A bare perusal of the first information report clearly goes to show that authorisedly or unauthorisedly, Respondent 3 was operating the appellant''s account. It is furthermore not in dispute that she and her family members were operating six accounts with the company, the details whereof are as under:

It is admitted that the appellant and her husband were Directors of M/s. R.S.R. Securities Ltd. it is furthermore conceded that Respondent 3 and the brother of the appellant herein, when the company was in great financial difficulties, became the Directors of the said M/s. R.S.R. Securities Ltd. It also stands admitted that Respondent 3 resigned from the post of Branch Manager of or about 25.10.2002.

The records before us also show that demat fixed accounts were being operate by Sridhar, brother of the appellant. It does not appear that my transaction involving purchase and sale of any share was entered into by and between the appellant had been opened for trading in shares.

Apparently, the first information report does not contain any allegation against Appellant 1. The principal allegations therein are only against the third respondent which may be enumerated hereinafter:

(1) He, without the knowledge and consent of the complaint with mala fide intention, operated the account maintained in her name.

(2) He promised to take over the liabilities of the company''s account, R-14 and at his instance only the appellant and her husband resigned from the company and he and Mr. Sridhar became the Directors.

(3) Accused 3 promised to pay a sum of Rs. 9.57 lakhs being the balance in Account K-4 and also Rs. 11.97 lakhs being the value of shares purchased in the account as early as 1999 but not delivered in time, but he failed and/or neglected to do so.

Whereas, thus, no allegation whatsoever has been made against Respondent I, the only allegation against Respondent 2 was that he had forwarded the said letter dated 10-1-2002 to the National Stock Exchange. The act of forgery on/or fabrication of the said letter had been attributed to Respondent 3. Respondents 1 and 2 herein were sought to be proceeded against on the premises that they are vicariously liable for the affairs of the company.

That allegations contained in the first information report, therefore, do not disclose of offence against Respondents 1 and 2. They have in their individual capacity been charged for commission of offences of cheating, criminal breach of trust and forgery. As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Penal Code, did not and could not arise.

So far as allegations in regard to commission of the offence of forgery are concerned, the same had been made only against Respondent 3 and not against Respondent 2. Sending a copy thereof to the National Stock Exchange without there being anything further to show that Respondent 2 had any knowledge of the fact that the same was a forged and fabricated document cannot constitute offence."

Now in the present case it is seen that the allegations made in the petition of complaint filed under Section 156(3) Cr.P.C. in Court on the following date do not indicate any direct involvement of the present petitioner in any offence at all. Throughout the complaint petition, the entire allegations are directed against the co-accused Baiju Radhakrishnan alone, who admittedly is the petitioner''s own brother. A careful reading of the averments in the complaint petition as contained in Paras 9 to 14 clearly reveals that there is actually no substantive allegation as against the present petitioner who has been roped in on a very general and vague allegation of being in conspiracy, as the following text of the averments would go to show -

"9. The Complainant states that the Accused No. 1 wrongfully misutilised position and power in criminal conspiracy with other accused and has caused serious loss and damages to the Company by criminal breach of Trust. The accused No. 1 as an employee of the Company entrusted in such capacity with property and/or asset of the Company for Overseas business of the Company and for Recovery on account of such properties and assets supplied by the Company on account of such business Transaction committed Criminal Breach of Trust in respect thereof.

The Complainant states that the Accused No. 1 dishonestly induced the Company to deliver Company''s property vis-�-vis the materials to its Overseas Customers and by way of clear dis-honest inducement to the Customers of the Company converted such properties of the Company into Sale proceeds and got the benefit thereof by getting the amount payable to the Company converted into his own account and as such the Accused No. 1 cheated the Company taking advantage of his position and power.

The Complainant states that the Accused No. 1 committed forgery for the purpose of cheating the Company taking advantage of his position for his own wrongful gain and causing wrongful loss to the Company.

The Complainant states that the Accused No. 1 fraudulently and dishonestly used his Position by using as genuine a forged document and/or information and thereby mis-appropriated huge fund of the Company.

The Complainant states that the Accused made falsification of the accounts as an employee of the Company wilfully and with intent to defraud and/or falsify the accounts in order to wrongfully mis-appropriate the sale proceeds of the Company''s assets.

The Complainant states that the Accused No. 1 has been the master mind to a criminal conspiracy as against the Company with the other accused and mis-appropriated huge fund of the Company taking advantage of his position."

This Court has also perused the original complaint which was meant to be lodged in the Police Station on 10th July, 2014, [made Annexure ''D'' to the petition under Section 156(3)], and which is Page 133 of the complainant''s own application for vacating the stay order passed earlier in this case. A plain reading of the same goes to show that there is absolutely no allegation what so ever against the present petitioner directly or even indirectly. In fact, the said original letter of complaint dated 10th of July 2014, alleges all the offences only as against the co-accused "Baiju Radha Krishnan" specifically, and there is not even any reference to the name of the present petitioner therein.

In this view of the matter, and considering that the petition under Section 156(3) was drafted and made ready within two hours after the original complaint was returned by the Police Station in which there was absolutely no allegation against the present petitioner nor even any reference of her name, her contention that she has been falsely implicated only to create pressure upon her brother i.e., the co-accused is established since even the subsequent complaint also does not make any cogent allegations against her. The addition of her name in the complaint in the given situation is an obvious afterthought. She therefore appears to be clearly covered by the following observations of the Supreme Court in the case of "Bhajan Lal" (supra) -

"(1) Where the allegations made in the first information report of 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.

(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.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive......"

As such, in the absence of any concrete allegation or material transpiring against the petitioner in the complaint to show or indicate that she was in active connivance with her brother, continuation of the criminal proceedings against her would appear to be an abuse of the process of Court. Consequently further proceedings arising out of the Hare Street PS Case No. 432 of 2011 dated 24.7.2014, under Sections 408/468/471/477A/120B of the IPC stand quashed as against the present petitioner alone. The Revisional Application is thus allowed.

Needless to add, the proceedings shall continue in respect of the co-accused Baiju Radhakrishnan against whom there is cogent material and allegations.