Jagadish Chandra Pal And Another vs State Of West Bengal

Asha Arora, J

By the instant application the petitioners have approached this Court for quashing of the proceedings of complaint Case No. 6305 of 2014 under section 406 and 506 of the Indian Penal Code pending before the learned Judicial Magistrate, 5th Court Alipore.

The facts in brief leading to the present application may be summarized as follows:

On 5/4/2014 the opposite party no. 2 herein/complainant filed a petition of complaint with a prayer under section 156(3) CrPC before the learned Chief Judicial Magistrate Alipore alleging commission of offences under section 406 and 506 IPC by the petitioners/accused persons. The aforesaid prayer was rejected by the learned Magistrate and the complainant was examined under section 200 CrPC whereafter process was issued against the accused/ petitioners herein for the offences alleged. Bereft of unnecessary details, the complainant's case is that he and his wife were members of Alambee Cooperative Society and were allotted a flat at premises No. 16 B Lake View Road. The accused persons/petitioners are the officer bearers and members of the said Society who have been looking after the day to day affairs of the Society. Further case is that after allotment of the flat, the complainant paid the amount due in respect of the said flat but the indenture (deed) is in the custody of the petitioner no. 1. By a letter dated 28/11/2002 signed by the petitioner no. 1 as the secretary of the Society, the complainant/opposite party no. 2 was informed that the indenture could not be delivered to him as per clause 23 and 24 thereof since he had not paid the entire dues in respect of the flat in question. It is well within the knowledge of the accused that the loan amount obtained from Alambee Cooperative Society was duly paid and the instalments were paid within the stipulated period. As the complainant has no financial liability in respect of the flat in question, he is entitled to get back the indenture which has been illegally retained by the accused persons. The complainant made several demands asking for the return of the deed but to no effect. Ultimately, the complainant sent a legal notice to the accused persons but in vain. It is further alleged that after receiving the notice, the accused persons started threatening the complainant with dire consequences. With these allegations the petition of complaint has been filed which led to the aforesaid proceeding.

Learned counsel for the petitioners strenuously argued that the dispute is purely civil in nature clocked in a criminal proceeding. The ingredients of the offence alleged are not disclosed in the petition of complaint as the deed of transfer was not entrusted to the petitioners in their personal capacity. The indenture remained with the society as per clauses 23 and 24 thereof since the complainant did not pay the dues. According to the learned counsel, since no element of criminality is involved, continuance of the proceedings is an abuse of the process of Court. To buttress his submission reliance has been placed on V.Y. Jose and another versus State of Gujarat and another reported in (2009)1 Supreme Court Cases (Cri) 996. Learned counsel for the petitioner also referred to a recent judgement of the Supreme Court in Criminal Appeal No. 9 of 2019 arising out of SLP(CrL.) No. 5223 of 2018 in the case of Satish Chandra Ratanlal Shah versus State of Gujarat. Referring to the statutory audit report for the year 2014-2015 of the Alambee Cooperative Housing Society at page 52 of the application and the enquiry report of the Directorate of Cooperative Audit, Government of West Bengal at page 67, relevant page 68 of the application, learned counsel for the petitioners sought to impress that it would be evident from these documents which are of unimpeachable character that a substantial amount is due and payable by the complainant. Placing reliance on the case of State of Orissa versus Debendra Nath Padhi reported in AIR 2005 Supreme Court 359 (paragraph 20), learned counsel for the petitioners canvassed that this Court may consider such unimpeachable documents while exercising power under section 482 CrPC for quashing the criminal proceeding.

Mr. Dipanjan Chatterjee, learned counsel appearing as amicus curiae countered that the complaint discloses specific averments of the offences alleged. Whether any amount is due and payable by the complainant is a disputed question which has to be decided by evidence during the trial. It is rightly pointed out by Mr. Chatterjee that the audit report and the inquiry report on which the petitioners seek to rely are not unassailable documents which can be accepted at this stage and on the basis of which the criminal proceeding can be quashed.

Learned counsel for the opposite party no. 1/State submits that though the dispute appears to be civil in nature, the contents of the petition of complaint disclose a prima facie case for the offences alleged.

In the context of the argument advanced on behalf of the petitioners, it may be useful to refer to the case of Alpic Finance Ltd. versus P. Sadasivan and another reported in (2001)3 Supreme Court Cases 513 wherein the Supreme Court held that merely because remedy by way of civil suit is available is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged. In the case of Rajesh Bajaj versus State NCT of Delhi reported in (1999)3 Supreme Court Cases 259 the Supreme Court held that quashing of complaint on the ground that it disclosed a commercial or money transaction is not justified. In Medchl Chemicals & Pharma (P) Ltd. versus Biological E. Ltd. and others reported in (2000)3 Supreme Court Cases 269 the relevant paragraph 17 of the judgement is quoted hereinbelow wherein the Supreme Court held as follows:

"17. On a careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they

"are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import". (vide Pratibha Rani v. Suraj Kumar) (SCC p. 383, para 21)."

V.Y. Jose case (supra) is of no assistance to the petitioners. In the aforesaid decision, the relevant paragraph 31 of the judgement relied upon, instead of supporting the contention on behalf of the petitioners, in fact, supports the complainant. The aforesaid relevant paragraph 31 of the judgement in V.Y. Jose case (supra) reads as follows:

"31. Before parting, however, we may notice a decision of this Court in State of M.P. v. Awadh Kishore Gupta whereupon strong reliance has been placed by Mr. Jain. This Court, therein upon referring to Bhajan Lal opined as under : (Kishore Gupta case, SCC pp. 700-01, para 11)

"11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary and Raghubir Saran (Dr) v. State of Bihar.) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings."

The decision in Satish Chandra Ratanlal (supra) is not applicable to the case in hand being clearly distinguishable on facts. The decision in State of Orissa versus Debendra Nath Padhi (supra) is also not apposite for the purpose of the case in hand. At this juncture it may be worthwhile to quote the relevant paragraph 20 of the aforesaid judgement which is as follows:

"20. Reliance placed on behalf of the accused on some observations made in Minakshi Bala v. Sudhir Kumar and Ors. MANU/SC/0702/1994 : [1994]3SCR1008, to the effect that in exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence is misplaced for the purpose of considering the point in issue in these matters. If para 7 of the judgment where these observations have been made is read as a whole, it would be clear that the judgment instead of supporting the contention sought to be put forth on behalf of the accused, in fact, supports the prosecution. Para 7 of the aforesaid case reads as under:-

"If charges are framed in accordance with Section 240 CrPC on a finding that a prima case has been made out - as has been done in the instant case - the persons arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Sections 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.""

In the case in hand, the audit report sought to be relied upon by the petitioners was prepared after the complaint was filed and the enquiry report appears to have been prepared on the basis of the data supplied by the Cooperative Housing Society. It cannot be said that these two documents are "unimpeachable" and of sterling quality on the basis of which the impugned criminal proceeding can be quashed by this Court while exercising the power under section 482 CrPC. In this context it may be beneficial to refer to the decision in State of Haryana versus Bhajan Lal reported in 1992 Supp.(1) Supreme Court Cases 335 wherein the Supreme Court laid down the premise on which the FIR and a criminal proceeding can be quashed in rare cases. The relevant paragraphs 102 and 103 of the aforesaid decision are quoted hereinbelow:

"102. In the backdrop of the interpretation of the various relevant provisions 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 the 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, though 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 cases wherein such power should be exercised.

(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 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) 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

In the case in hand, on a careful reading of the petition of complaint in its entirety, in my view, it cannot be said that it does not disclose the commission of an offence nor can it be said that the complaint is bereft of even the basic facts which are absolutely necessary for constituting a prima facie case for the offence alleged. Simply put, the factual foundation for the offence alleged has been laid in the complaint. Whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial. Disputed questions of fact canvassed herein are matters to be decided by evidence during the trial. In my view, the present case certainly does not fall within any of the categories of cases calling for the exercise of the power of this Court under Section 482 CrPC.

For the reasons aforestated, the application being CRR 1967 of 2016 is dismissed.

The application being CRAN 3525 of 2018 is accordingly dismissed.

No order as to cost.

It is clarified that this Court has not expressed any opinion on the merits of the case. The learned Magistrate shall proceed with the trial of complaint Case No. 6305 of 2014 and dispose of the case in accordance with law without being influenced by any observation made herein above.

Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.