Neeraj Poddar vs The State of West Bengal and Another

Toufique Uddin, J.—This revision arose out of an application filed u/s 482 of the Code of Criminal Procedure, 1973 for quashing of the proceedings being C.G.R. 1842 of 2004 arising out of Karaya Police Station Case No. 187 dated 27th June, 2004 u/s 420/406/504 of the Indian Penal Code pending before the learned Sub-Division Judicial Magistrate, Alipore, 24-Parganas (South). The background of this matter in short is that the petitioner is the businessman. He deals in transportation business from his office at 153A, Muktaram Babu Street, Kolkata-7. On 25th June, 2004, the opposite party No. 2 filed an application u/s 156(3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Alipore alleging that sometimes in April, 2003 the petitioner approached the opposite party No. 2 with a request to give two Trucks (Tata) on hire purchase basis and further alleged that the payment of such hire purchase will be paid on easy monthly instalment scheme. The opposite party No. 1 believing such representation of the petitioner, handed over two Trucks (Tata) to the petitioner on hire purchase basis of which one bearing Registration No. TN-07/4636 and another Truck bearing Registration No. WB-23/8926 standing in the name of Raja Carriers on 15th May, 2003 for which two separate agreements were executed by and between the parties.

The petitioner agreed to pay Rs. 6,00,000/- for the first Truck and Rs. 8,80,000/- for the second Truck payable in 47 instalments one ending in April, 2007 and the other ending in June, 2007 respectively. After taking possession of the above two vehicles, the petitioner''s son issued some cheques in favour of opposite party No. 2 for the monthly instalments and the same were dishonoured for the reasons "insufficient fund". When the opposite party No. 2 chased the petitioner for payment, the petitioner handed over one cheque being No. 338659 dated 25.5.2004 for a sum of Rs. 121,16,423/- drawn on Hongkong & Sanghai Banking Corporation, B.B.D. Bag Branch, Kolkata. In good faith, the opposite party No. 2 deposited the said cheque and it was returned unpaid by the bank for reasons "Account Closed". The opposite party No. 2 contacted the petitioner for payment and the petitioner refused to make any payment and on the contrary the petitioner threatened the opposite party No. 2 saying that he would cause harm to the life and property of the opposite party No. 2 if the opposite party No. 2 takes any legal steps. So the opposite party No. 2 filed the said petition of complaint to the Officer-in-Charge, Karaya Police Station through the learned Chief Judicial Magistrate, Alipore, 24-Parganas (South). The learned Magistrate, without applying his judicial mind mechanically sent the said petition of complaint to the concerned Officer-in-Charge for investigation. The Opposite Party No. 2 after suppressing all material facts filed the said purported complaint only by making some false allegation by way of distorting the facts and to obtain the order which is on the face of the record is bad in law and in facts for the reasons stated herein below:

a) The petitioner took two vehicles as per the so-called Hire Purchase Agreements which were never signed by the petitioner nor any such agreement was handed over to the petitioner for the said two trucks;

The Truck bearing No. TN-07/4636 was purchased on 22nd April, 2002 as per the so-called agreement and on the basis of statements made by the opposite party No. 2 the petitioner believing bona fide such statements went on paying the monthly instalments to the tune of Rs. 12,765/- on and from 22nd April, 2003. The petitioner, according to the detailed chart (mentioned in the petition) paid for TN-07/4636 cash and penalty for cheque returned to the extent of Rs. 1,40,415/- and Rs. 11,000/- and also through cheques Rs. 62,530/-. The aforesaid vehicle was never registered in the name of the petitioner for mala fide reasons of the opposite party. Some cheques were also not returned to the petitioner. The aforesaid vehicle was of model No. 91. Similarly, with respect of vehicle No. WB-23/8926 being Model No. 99, the petitioner paid to the extent of Rs. 74,892/- and penalty of Rs. 4,000/- through the cheque Rs. 1,31,080/- but the vehicle was not registered in the name of the petitioner.

Even after payment of some instalments to the Opposite Party No. 2 regularly, one day Opposite Party No. 2 came to petitioner''s office alongwith his sons to extract money. When such proposal was refused by the petitioner the Opposite Party No. 2 forcibly obtained signature on a cheque. The account of the said cheque which was standing in the proprietorship firm whose proprietor was the father of the petitioner and after death of the father of the petitioner on 3rd March, 2003 the said account was closed. For such high-handedness and illegal activities of the Opposite Party No. 2, the petitioner was very afraid of disclosing such fact to anyone as Opposite Party No. 2 threatened petitioner with dire consequences.

Immediately hearing such fact from the petitioner, his mother filed a written complaint disclosing the high-handedness of the Opposite Party No. 2 which was clearly spelt out in the said written complaint dated 15.6.2004. The same was lodged with the Deputy Commissioner of Police, Detective Department, Lalbazar, Kolkata against Opposite Party No. 2 and his men and agent. The Opposite Party No. 2 has purposely suppressed the aforesaid facts in the petition of complaint u/s 156(3) of the Code of Criminal Procedure only to obtain the order of investigation against the petitioner by stating false allegations. The petitioner moved an application for anticipatory bail before the learned Sessions Judge in connection with the impugned case. The learned Sessions Judge formed the opinion and the impugned matter is purely a civil one in nature. Even then without any reason whatsoever he rejected the application of the petitioner. The allegations made in the petition of compliant, even if, they are taken at their face value and accepted in its entirety by no stretch of imagination can show that there is any iota of ground to proceed with the matter.

The impugned proceeding is nothing but a sheer abuse of process of the court. The petitioner has duly made payments in cash alongwith the penalty charges in cheque. So, there is no question of any false inducement by making any false statement on the part of the petitioner whereby to deceive the Opposite Party No. 2 to part with the property. As such there cannot be any allegation for offence u/s 420 IPC. Even if the allegations of the Opposite Party are taken in its entirety then also in a high purchase agreement which is due to expire one in April and another in June, 2007, in such a situation, no prudent reason will accept such purported allegation of issuing a cheque for the total instalments prior to such expiry. This fact was not at all considered by the learned Magistrate while passing the order for investigation.

There is no allegation or ingredient to attract the provision u/s 406 IPC as the petitioner had bona fide discharged his duty from the date the petitioner agreed to make such payment. Such fact cannot be denied by the Opposite Party No. 2 as the same was duly been accepted by the Opposite Party No. 2.

There is no iota of material or ingredients to attract Section 504 IPC. The materials do not show any commission of criminal offence. But only it may be a civil dispute or breach of contract when the agreement has not come to an end. The petitioner has not failed to make the payments. The purported criminal proceeding was stated only to harass him. The allegations made in the FIR are absurd.

It was contended by the learned Counsel for the Petitioner that there is no allegation in the length and breadth of the complainant that there is any dishonest and fraudulent intention of petitioner in order to induce/to cause deliver of alleged trucks to cause wrongful loss to Opposite Party No. 2 and wrongful gain to the petitioner.

The FIR shows the following mention:

The accused person took the above mentioned two trucks from the complainant on hire basis through equal instalments on 25.5.2004 the accused person served a cheque of HSBC bearing No. 938695 amounting to Rs. 11,16,423/- to the complainant after knowing that his account was closed earlier. The complainant was cheated by the accused person. Also the accused person intentionally insulted with intent to provoke breach of the peach.

It was argued further by the learned Counsel for the Petitioner that previously the matter once surfaced for hearing in other Bench when His Lordship, the then was, asked for the higher purchase agreement but it was not submitted. He further contended that the ingredients of the alleged offence as charged are totally absent in this case and it will be sheer abuse of process if the proceedings are continued.

On the other hand, the learned Counsel for the State strongly resisted prayer for the petitioner and submitted that the petitioner is at large. The police have done substantial and fair investigation. It was an economic offence. Subsequently, the Police added Sections 468 and 471 IPC and it is not a civil dispute as stated. The accused person has not been arrested and his handwriting was required to be taken into consideration, so, the prayer for quashing cannot be made. Further, he submitted that the prayer for anticipatory bail of the accused was rejected. He did not go to higher forum. Signature purported to have been given was false. Charge sheet has not yet been submitted. Investigation should not be throttled. There is no allegation that investigation has crossed its limit and lots of evidence are yet to come. This is a case of forgery. So, the proceedings will not be bad in law. In Support of his contention, the learned Counsel for the State cited before me two decisions as reported in i) State of Orissa and Others Vs. Ujjal Kumar Burdhan, wherein the scope of exercising of inherent power of High Court u/s 482 of the Code of Criminal Procedure was discussed and it was propounded that such power does not confer arbitrary jurisdiction to act according to whims and caprice and such power has to be exercised sparingly with circumspection and ii) State of Madhya Pradesh Vs. Surendra Kori, wherein the Hon''ble court held that the High Court should normally refrain from giving prima facie decision and quashing the proceedings in a case where the facts are incompetent and hazy.

The learned Counsel for the Petitioner has referred to the decision of State of Karnataka Vs. L. Muniswamy and Others, in support of his contention.

I have heard the submissions made by the learned Counsel for the contesting parties and carefully examined the petition of complaint. The case docket was filed by the learned Counsel for the State. I attempted to go deep into the decisions cited by both the parties wherefrom it is clear that nowhere the Hon''ble Apex Court has cited that in no cases quashing could be done ever.

In the instant case, the dispute germane here is regarding payment of instalment allegedly in reference to higher purchase agreement for purchase of two trucks by the petitioner from the Opposite Party No. 2. It is clear from the record which is also not disputed that the petitioner has paid a sizeable amount of money towards satisfaction of the price of the trucks. Interestingly, no higher purchase agreement has been filed. The court is unable to see its terms and conditions. The petitioner contended that the copy of the higher purchase agreement was not handed over to him. The Opposite Party No. 2 claimed that fraudulently the petitioner issued a cheque for satisfaction of the amount of outstanding amount. But the cheque when presented in the Bank was returned by the Bank on the ground that the account was "closed". So, the Opposite Party No. 2 wanted to mean that the petitioner has cheated him. In this regard, it is absent from the very intention that the petitioner has deceitful inception to cheat Opposite Party No. 2. Had it been so, he would not have paid a sizeable amount of instalments as has been described in the petition of complaint itself. Moreover, the Opposite Party No. 2 does not appear to have resorted to a proceeding u/s 138 of the N.I. Act.

Ex facie the materials show no ingredients of entrustment of property or dishonest intention to cheat Opposite Party No. 2. The present petitioner has attempted to convert a civil litigation in the cloak of a criminal proceedings. In this regard, reference may be made to the decisions reported in G. Sagar Suri and Another Vs. State of U.P. and Others, respectively.

In G. Sagar Suri and Another Vs. State of U.P. and Others, the Hon''ble Apex Court held that "Jurisdiction u/s 482 of the Code of Criminal Procedure has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction u/s 482 of the Code of Criminal Procedure. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

From the very starting point of the so-called transaction the ingredients cheating or forgery or inducement are wanting.

This being the position, I am of the view that continuance of the instant proceedings will be a sheer abuse of process of law.

Accordingly, the revision is allowed.

The proceedings of CGI case No. 1842/2004 arising out of Karaya P.S. Case No. 187 dated 27.4.2004 stand quashed. Urgent Photostat certified copies, if applied for, be supplied according to rules.