Harshad A. Shah and Bhadresh H. Shah vs State and Another

Partha Sakha Datta, J.—In C.R.R. 3120 of 2005 the two petitioners prayed for quashing of the proceeding being case No. C/115/05 u/s 420/120B/34 of the IPC now pending before the learned Metropolitan Magistrate, 11th Court, Calcutta on the ground as may be found in the subsequent paragraphs and together with this challenge has been made to the order dated 1.3.05 of the learned Magistrate directing issuance of process against the petitioners and order dated 22.6.05 directing issuance of warrant of arrest against the petitioners and also the order dated 19.08.05 directing issuance of proclamation against them.

The complaint was lodged by the opposite party No. 2 against two petitioners and another who are partners of Sri Mahabir Minerals carrying on business of supply and export of mineral processors. In the month of October, 2004 the de facto complainant who is an exporter of Bentonite, a mineral in substance, badly needed to purchase 5000 tones of foundry, grade, bentonite, lumps exclusively for export/supply to its valued overseas clients. The accused persons persuaded the complainant to honour them with the order and guaranteed to deliver the materials within stipulated period and strictly adhering to quality. The glossy and colourful representations by the accused persons impressed the complainant deeply and accordingly the accused persons sent by fax on 12.10.04 a proforma invoice bearing No. 2834 dated 11.10.04 and the complainant placed in turn the formal purchase order No. 2730 dated 15.10.04. The total amount agreed to be paid by the complainant''s company to the accused persons was Rs. 20,60,000/- and the complainant remitted to the accused persons a sum of Rs. 10,00,000/- by different cheques on 16.10.04, 18.10.04 and 4.11.04. The 15th November, 2004 was the date fixed for delivery of the materials and it was specifically mentioned in the purchase order that the schedule had to be strictly complied with. The accused persons were a under the strictest obligation to submit samples on 26.10.04 and 10.11.04 but the accused persons on receipt of Rs. 10,00,000/- quietly sat over the matter and did not submit any sample within the stipulated time or at all in spite of rape acted request through its local authorised officer one Gautam Kar nor delivered the ordered materials within the stipulated time. Such failure on the part of the accused persons caused the complainant''s company to fail exporting the materials resulting in its overseas clients cancelling the export order and slapping upon the complainant a damage claim, of USD 20,000 for delay in. shipment. The accused persons in their letters dated 22.11.04 and 29.11.04 represented utterly incorrect, designed, planned, concocted, cooked and manufactured stories suiting their dishonest purposes denying their any facilities. The complainant denied all such contentions and was constrained to cancel the purchase order by their letter dated 2.12.04 and called for return of Rs. 10,00,000/- with interest @ 22% p.a. plus a damage of Rs. 9,00,000/-. On 1.12.2004 the accused persons sent a letter questioning as to why the complainant''s company was not taking delivery of the ordered materials lying ready since long back. The content of such letter is false. The complainant himself with Gautam Kar called on the office of the accused persons on 15.12.2004 and requested to settle the matter but unfortunately the complainant was treated very objectionably. On 27.12.04 the complainant received a fax message from the accused persons whereby the accused persons dishonestly and designedly contended that in the said unheld meeting everything was settled, the content of the fax is false. It is, therefore, clear that the accused persons entered into deep criminal conspiracy to cheat the complainant''s company by making false and fake representations and induced the complainant''s company to part with a cash of Rs. 10,00,000/- which they misappropriated and cheated the complainant causing thereby wrongful gain to themselves and wrongful loss to the complainant''s company. The complainant had trust and confidence reposed in the accused company and exploiting such trust and faith the accused persons committed the offence and cheating and criminal breach of trust.

The grounds of revision are that allegations in the petition of complaint are false, that they did not constitute commission of any cognizable offence, that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners, that the ingredients of the offence of criminal conspiracy and of cheating have not been averred in the complainant, that there was no allegation of initial mens rea of deception, without which no offence u/s 420 of the IPC can lie, that there are claim and counterclaims as against the parties, that the accused persons by their letter dated 1.12.2004 intimated the complainant''s company that ordered materials were ready for delivery and it was not understood why the delivery was not taken by the complainant''s company, that the learned Magistrate ought to have allowed an opportunity to the petitioners to make application u/s 205 Cr. PC particularly when the accused persons are not going to challenge their identity and that in the circumstance, the proceedings be quashed.

It is well-settled that having regard to the guidelines laid down by the Hon''ble Court in the decision in State of Haryana v. Bhajan Lal and R.B. Kapoor v. State of Punjab quashing of a proceeding of a criminal case happens interest of rare case and it can only happen when the petition or complaint or the FIR does not disclose or reveal commission of any cognizable offence or when there is no availability of evidence of legal character or when there is legal bar to the entertainability of a petition of complaint or where the petition of complaint or the FIR is inherently defective or manifestly absurd or where ex facie the complaint exhibits a sheer mala fide. The matters of fact which are asserted by one party and denied by the other are subject to test only at the time of trial and this Revisional Court being not a fact finding Court can not proceed to examine whether the averments in the petition of complaint are true or false or whether given at the face value the chance of success is bright or bleak.

What appears from the petition of complaint is that there was placement of an order dated 15.10.04 by the complainant pursuant to despatch of an invoice dated 12.10.04 towards delivery of some mineral materials worth Rs. 20,60,000/- out of which a sum of Rs. 10,00,000/- was paid in advance between 16.10.04 and 4.11.04 by three cheques drawn on HDFC Bank Ltd. Allegedly 15th November, 2004 was the date of delivery of the materials with strict adherence to maintenance of quality of the materials. Allegedly samples were to be sent on 26.10.04 and 10.11.04 but no samples were allegedly delivered and there was total failure on the part of the accused persons to deliver the ordered materials which allegedly caused damage to the complainant in the sum of Rs. 9,00,000/- and the complainant''s company''s client in the overseas slapped a damage claim or USD 20,000/-.

In the petition of complaint there is mention of some letters of the accused persons which according to the complainant were false and concocted as at no point of time there was any resolution of the dispute amicably between the parties. In the latter part of the petition of complaint there is averment that because of commercial dealings between the parties the complainant had reposed faith and confidence in the accused company and the accused company taking advantage of that faith and trust exploited the same and dishonestly and deliberately failed to comply with the terms of the order by not supplying the samples and the ordered materials on time as a result of which the complainant allegedly sustained damage. In the petition of complaint it has been further alleged that the accused persons entered into a deep-rooted criminal conspiracy to cheat the complainant''s company by making false and rake representations and assurances which they were sure not to honour and which induced the complainant''s company to part with a sum of Rs. 10,00,000/- and have misappropriated the amount and cheated the complainant causing wrongful gain to themselves and wrongful loss to the complainant.

According to the learned Advocate for the petitioners the essential ingredients of the offence of cheating is that it must be alleged and proved that at the very inception of the transaction there was dishonest intention in the mind of the accused to cheat the complainant which in the instant case, so far as the petition of complaint is concerned, has not been averred and that being so, the petition of complaint cannot be said to have disclosed a commission of cognizable offence with respect to alleged charge u/s IPC and in this connection the decision in Hridaya Ranjan Pd. Verma and Others Vs. State of Bihar and Another, has been cited. The learned Advocate for the petitioner Mr. Sudipta Moitra further referred to a decision in JT 2004 (2) SC 539 wherein in para 15 therein it was held by their Lordships of the Supreme Court that no charge of cheating can lie when there is no fraudulent representation so as to induce a person to part with a property and this essential element of the offence of cheating is prerequisite of issuing a process. Reference also has been made in this connection to the decision in Apurba Kumar Nandy Vs. Tirthankar Ganguly and Another, . Mr. Moitra argues that having gone through the petition of complaint it would be revealed that the dispute between the parties was of civil in nature and no Criminal Court should take cognizance of offence upon such petition of complaint.

Mr. Amit Bhattacharjee, learned Advocate appearing for the opposite party submitted that it is misnomer to suggest or argue that elements of cheating and criminal breach of trust have not been averred in the petition of complaint. It is argued that in clear terms it has been alleged in the petition of complaint that the accused persons cheated the complainant with full knowledge that they would not honour the order to deliver the materials and they induced the petitioner''s company to part with and deposit with them a total sum of Rs. 10,00,000/- and they accordingly misappropriated the money and cheated the complainant. It is submitted that in the latter part of the petition of complaint it has been clearly alleged that accused persons entered into a deep-rooted criminal conspiracy to cheat the complainant''s company and by making false and fake representations which they knew that they would not comply with the accused persons induced the complainant''s company to deliver Rs. 10,00,000/- and the trust and faith which the complainant''s company had reposed in the accused persons was exploited by the accused persons so as to have wrongful gain to themselves and wrongful loss to the complainants. Mr. Bhattacharjee argues that reading between the lines of the petition of complaint it cannot be said that the essentials of the charge have not been laid foundation of.

I have gone through minutely the petition of complaint and it appears to me that the primary ingredients of the two offences have been alleged no matter whether they would succeed at the trial or not. It was argued by Mr. Moitra that samples were sent to the complainant''s company which has been denied by Mr. Bhattacharjee. The question whether samples were sent or not is a question of fact and this Revisional Court being not a fact finding Court can hardly go into examination of the point. According to Mr. Bhattacharjee the accused persons/petitioners laid inevitable tricks to cheat the complainant. Mr. Moitra produced a good number of documents which according to him would be sufficient to rebut the charges of criminal misappropriation and cheating. Law is well-settled that while examining a revisional application praying for quashing of a proceeding what has to be looked into is the FIR or the petition of complaint or the chargesheet and there is hardly any scope to examine critically the papers constituting the defence case because the defence will be called upon to enter into defence after the prosecution case is built through evidence-orally or documentary and since the documents produced by the accused persons are subject to examination through trial with regard to its veracity and authenticity and truthfulness of the content this Revisional Court is precluded from entering into accepting those documents at face value because if it is done so, it would be an Act of prejudging the prosecution case before trial. So far as the petition of complaint is concerned it appears to me that a prima facie case has been made out and this being so, I am unable to hold that the petition of complaint should be nipped at the bud. In Rajesh Bajaj v. State of NCT of Delhi and Ors. reported in 1999 SCC 401 it has been held by Their Lordships of the Supreme Court that it is not necessary that the complainant should reproduce in the body of the complaint all the ingredients of the offence he is alleging, nor it is necessary that the complainant should aver in so many words that intention of the accused was dishonest or fraudulent. Their Lordships held in the judgment that when the factual foundation of the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during this stage of investigation merely on the premise that one or two ingredients have not been stated in details. At para 9 of the judgment it has been further held that for quashing an FIR which is a special remedy only in extremely a rate case the information in the complaint must be the basic facts which are absolutely necessary for making out the offence. At para 10 of the judgment of Their Lordships held it may be that the facts narrated in the complaint would reveal a commercial transaction or money transaction but that is hardly a reason for holding that offence of cheating would elude from such a transaction because, according to Their Lordships, many a cheatings were committed in the course of commercial and also of money transaction. In the decision in State of Orissa v. Debendra Nath Padhi 2005 SCC 415 it has been held that consideration of defence materials can only be had at the stage when the Court proceeds to consider charge against accused persons.

With regard to the issuance of process it can only be said that the orders issuing processes followed the Act of taking cognizance of offence and it cannot be said that the learned Magistrate was not legally justified in issuing the process. If the accused Dersons desired to make an application u/s 205 of the Cr. PC they, if so advised, may file an application before the learned Magistrate Therefore the learned Magistrate after taking cognizance of offence and after recording presummoning evidence u/s 200 of the Cr. PC was perfectly justified to issue process by the order dated 1.3.05. With regard to issuance of warrant of arrest by the order dated 22.6.05 it appears that the learned Magistrate was moved by the accused persons through a petition dated 29.4.05 praying for time for the appearance which the learned Magistrate fixed on 22.6.05 but on that day no appearance was made and no petition was filed before the learned Magistrate u/s 205 of the Cr. PC and in the circumstances learned Magistrate''s order issuing warrant of arrest cannot be said to be absolutely unlawful. It cannot be said that any petition u/s 205 of the Cr. PC was filed and moved before the learned Magistrate and that the same was rejected. The accused persons may in the circumstances immediately appear before the learned Magistrate and pray for bail.

In C.R.R. No. 3121 of 2005 the other accused persons who are also co-accused with the petitioners of C.R.R. No. 3020 of 2005 made a separate application for quashing of the proceedings on the self-same grounds and by this order the said C.R.R. No. 3121 of 2005 also stands disposed of in the same terms as in C.R.R. No. 3120 of 2005.

Situated thus, I am to hold that revisional applications fail and are dismissed.

Urgent certified copies, if applied for, shall be provided.