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Judgment
Asha Arora, J.
The petitioners have approached this Court for quashing of the criminal proceeding being Complaint Case no. 3592 of 2005 pending before the learned
Judicial Magistrate 9th Court Alipore. The orders passed in connection with the aforesaid complaint case including the order dated 29th July 2005
whereby the learned Magistrate issued process under 420 IPC against the petitioners have also been assailed.
Learned counsel appearing for the petitioners strenuously argued that the allegations in the petition of complaint do not disclose the necessary
ingredients of the offence under section 420 IPC. Referring to the copies of the letters of the petitioner addressed to the opposite party, learned
counsel sought to impress that there is no indication of dishonest intention from the inception of transaction. It is contended that after 13 transactions
the opposite party demanded Sales Tax Form H from the petitioner who, being an unregistered dealer had no liability to issue any Sale Tax Form. It
has been argued that the copies of letters annexed at page 43, 44, 52 and 53 do not indicate that there was any deception or dishonest inducement on
the part of the petitioner. Since the complaint and the documents relied upon do not disclose a prima facie case for the offence of cheating, the learned
Magistrate was not justified in issuing process.
To fortify his submissions learned counsel for the petitioners relied upon the case of Dr. Sharma’s Nursing Home versus Delhi Administration and
Others reported in (1998)8 Supreme Court Cases 745, Anil Mahajan versus Bhor Industries Ltd. and Another reported in (2005)10 Supreme Court
Cases 228 and All Cargo Movers (India) Private Limited and Others versus Dhanesh Badarmal Jain and Another reported in (2007)14 Supreme
Court Cases 776. Referring to the case of G. Sagar Suri and another versus State of U.P. and others reported in (2000)2 Supreme Court Cases 636
learned counsel for the petitioner urged that even when an application for discharge of the accused in pending with the trial Court, the accused can
approach the High Court under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution to have the proceeding quashed
when no offence has been made out against him.
Repudiating the above submissions, learned counsel for the opposite party/complainant argued that the petitioner’s approach is premature since the
case in the trial Court is at the stage of evidence before charge under section 244 of the Code of Criminal Procedure where two witnesses have
already been examined and several documents have been exhibited. It is pointed out that the petitioner could avail of Section 245 of the Code of
Criminal Procedure at the appropriate stage. On the merits of the application, relying upon Rajesh Bajaj verses State NCT of Delhi and others
reported in 1999(3) Supreme Court Cases 259 and M/S Indian Oil Corporation versus M/S NEPC India Ltd. and Others, learned counsel for the
opposite party submitted that the complaint is not required to verbatim reproduce all the legal ingredients of the offence alleged.
It is sufficient if the necessary factual foundation is laid therein. A criminal proceeding cannot be quashed merely on the ground that a few ingredients
of the offence alleged have not been stated in detail. The complaint has to be read as a whole but without examining the merits of the allegations.
Inviting the attention of the Court to the copies of correspondence between the parties, it has been argued on behalf of the opposite party that the
petitioner was fully aware of the terms and conditions which were specifically mentioned in the offer/quotation letter of the opposite party dated
28/1/2003. Referring to the copy of letter dated 28/1/2003 annexed to the affidavit in opposition at page 10 learned counsel for the opposite party drew
my attention to clause (ii) of the terms and conditions which reads as follows:
“Terms & Conditions:
i) The above consignment value is after deduction of all expenses on freight documentation, bank charges and agent commissions(2%).
ii) The prices quoted exclude WB Sales Tax (8.8%) as the consignment is for export. Sales Tax Form ‘H’ is to submitted after the end of the
current financial year. In case of non-submission of the Form H the additional Sales Tax amount shall have to be paid.
iii) Above prices are Ex-works.
iv) Payments 30 days from delivery date.
v) Delivery 8-10 weeks after receipt of confirm order.
vi) Validity 30 days w.e.f 28.01.03.
Kindly acknowledge receipt and approval of the same by duly stamped and signed purchase order.â€
The acceptance letter dated 31/1/2003 of the petitioner at page 12 of the affidavit in opposition has been pressed into servicein support of the
argument that by accepting the quotation of the opposite party the petitioner had accepted its terms and conditions including submission of Sales Tax
Form H. Referring to the copy of letter dated 29/3/2004 of the petitioner annexed at page 42 of the revisional application, it is argued that the aforesaid
letter reveals the mala fide intention of the petitioner since it implies that Form H would be submitted at a subsequent date. The aforesaid letter of the
petitioner dated 29/3/2004 reads as follows:
“Mr. V. Ramaswamy
Director
M/s. Chemicals & Meters
Plot-2, Phase-III,
Kasba Industrial Estate 29-03-04
E.M. Bypass
Kolkata 700 107
Dear Sir,
Sub: SALES TAX FORM
With reference to your letter no. CM/STF-0203/001, dt. 12/02/04, we would like to inform you that we are not in a position to submit the Sales Tax
‘H’ Form at present.
This is for your kind information.
Thanking you,
Yours faithfully,
For Rainbow Marketing & Exports.
Partha Sengupta
Proprietorâ€
Referring to the copy of letter dated 30/9/2004 at page 43 of the revisional application, it is contended that for the first time the petitioner revealed in
the said letter that he is an unregistered dealer who cannot issue Sales Tax Form. It is argued that from the aforesaid letters it is evident that the
petitioner intentionally deceived the opposite party and induced him to believe that he would submit the Sales Tax Form H. It is contended that while
exercising jurisdiction under Section 482 of the Code of Criminal Procedure this Court cannot enter into disputed questions of fact which can be
determined by the trial Court after recording evidence. In this regard reference has been made to the case of HMT Watches Ltd. versus M.A. Abida
and Another reported in (2015)11 Supreme Court Cases 776.
The principles relating to exercise of jurisdiction under section 482 of the Code of Criminal Procedure for quashing complaints and criminal
proceedings have been reiterated by the Supreme Court in several decisions. In the context of the present case it is significant to refer to the
observation made in Rajesh Bajaj versus State NCT of Delhi and Others (Supra) in paragraph 9 of the judgment which reads as follows:
“9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging.
Nor is it necessary that the complaint should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the
definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the
complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash
criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an
FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are
absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (supra) this Court laid down the premise on which the FIR can be
quashed in rare cases. The following observations made in the aforesaid decision are a sound reminder:
“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.â€
In the case at hand, it cannot be said upon perusal of the contents of the complaint in its entirety that it is so bereft of even the basic facts which are
absolutely necessary for making out a prima facie case for the offence alleged nor can it be said that the allegations made in the complaint, even if
taken at their face value and accepted in their entirety, do not prima facie make out the offence alleged against the petitioner. Neither a detailed
inquiry nor a meticulous analysis nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining
the prayer for quashing of a complaint.
The decision in Dr. Sharma’s Nursing Home (Supra) is clearly distinguishable on facts from the present case. It was held therein that both the
Courts below rested their findings on deception only and did not go into the question whether the complaint and its accompaniments disclosed the other
essential ingredient of the offence under Section 420 IPC namely, dishonest inducement. In the aforesaid case it was found that there are no materials
from which it can be said even prima facie that the appellant “dishonestly induced†the complainant to part with his money. The case law referred
has no manner of application to the case at hand where the complaint and the documents annexed thereto make out a prima facie case for the offence
alleged. All Cargo Movers’ case (Supra) is also of no help to the petitioner as it was held in the said case that the allegations made in the
complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. In Anil Mahajan’s case (Supra),
having regard to the substance of the complaint it was held that it pertains to a civil dispute of breach of contract and not a criminal case of offence of
cheating. The aforesaid case relied upon by the petitioner is therefore not apposite for the purpose of the present case. G. Sagar Suri’s case is
also factually distinguishable. It was held in the said case that on facts, FIR and the criminal prosecution for the alleged offence amounted to abuse of
process of law.
For the reasons aforestated the application being CRR 3308 of 2015 is devoid of merit and is accordingly dismissed. No order as to cost. It is made
clear that this Court has not expressed any opinion on the merits of the case and the learned Magistrate will decide the matter in accordance with law
without being influenced by any observation made hereinabove. Urgent photostat certified copy of this order if applied for be given to the applicant
upon compliance of requisite formalities.