Pramod Kumar Jhunjhunwala Anr vs Girdhari Lal Goenka

Madhumati Mitra, J

The petitioners have approached before this Court for quashing of the criminal proceedings being C.S.Case No.6173/2018 under Sections 120B/420/406/364/364A/506 of the Indian Penal Code pending before the Learned Metropolitan Magistrate, 11th Court, Kolkata.

Before dealing with the rival submissions of the parties, it would be appropriate to set out the facts briefly.

The petitioners are husband and wife and they are the accused of the criminal proceeding pending before the Learned Metropolitan Magistrate, 11th Court, Kolkata.

Petitioners have stated in their application that they were the owner of a piece of land with an incomplete super structure of (G+2). The petitioners formed a company and became its directors and holders of the entire shares of the said company viz M/s. Precious Plastic Pvt. Ltd. The present opposite party proposed the petitioners to take over the said company and develop the project. There was an agreement between the present petitioners and the opposite party who was the director of three companies to take over the company of the petitioners. It was settled that the opposite party was to pay a sum of Rs. 4 crores at the beginning. After completion of the entire construction, a sum of Rs.5 crores would be paid to the petitioners along with 1st floor of the building with car parking space. Opposite party neither paid Rs.5 crores after completion of the building nor handed over the 1st floor of the building as agreed upon. However, the parties came to an understanding. During the course of that understanding the signatures of the petitioners were obtained on several documents. Petitioners came to know that those signatures were converted into some valuable documents. Petitioners were compelled to lodged an FIR with Shakespeare Sarani Police Station being Shakespeare Sarani Police Station Case No. 415 dated 16.12.2014, against the opposite party in the year 2014.

In the year 2015, the present opposite party also lodged an FIR being Shakespeare Sarani Police Station Case No.594 of 2015, against the present petitioner no.1. After completion of investigation, final report was submitted by the police praying for discharge of the accused. Present opposite party filed protest petition opposing the prayer of investigating officer to discharge the petitioner. The said protest petitioner was rejected by the Learned Magistrate and accused was discharged. The opposite party filed one complaint petition being complaint Case No. 6173 of 2018 on the same facts on 09.01.2018 the said complaint was registered as C.S.No.6173 of 2018. Learned Chief Metropolitan Magistrate after taking cognizance transferred the same to the file of Learned Metropolitan Magistrate 11th Court for enquiry and disposal in accordance with law. On 05.04.2018, Learned Magistrate examined the complainant under Section 200 of the Code of Criminal Procedure and directed the officer in charge of Hare Street Police Station to take necessary steps for causing an inquiry over the allegations made in the complaint as per the provision contained in Section 202 of the Code of Criminal Procedure. On 30.05.2018 on the submission made by Learned Advocate for the complainant, the Learned Magistrate directed A.C.P., Central to submit report in connection with an inquiry under Section 202 of the Code of Criminal Procedure. On 07.07.2018, Learned Magistrate after perusing the report and considering the materials on record issued process against the petitioners under Section 204 of the Code of Criminal Procedure after observing that there was sufficient ground for proceeding.

While submitting in favour of quashing of the criminal proceedings pending against the petitioners, the Learned Counsel appearing for the petitioners has forcefully contended that the allegations contained in the complaint/C.S.Case No.-6173 of 2018 and the allegations of the FIR of Hare Street Police Station Case No.594 of 2015 dated 06.10.2015 are same and identical in respect of the self-same property at 6B, Elgin Road, Kolkata- 700 020.

It is the specific submission of Learned Counsel for the petitioners that the opposite party being failed to rope the petitioners in the criminal proceeding in the said Hare Street Police Station Case No.594 dated 06.10.2015 has started the present complaint case on the same facts which ought not to have been entertained by the Learned Magistrate. It is the specific contention of the petitioners that the complaint case being no.6173 of 2018 has been initiated by the opposite party with some ulterior motive and mala fide intend. Learned Counsel has further contented that moreover, the alleged facts as narrated in the complaint do not make out any offence either of 420 or 406 or 364 or 364A or 506 of the Indian Penal Code.

Learned Counsel for the petitioners has invited the attention of the Court to the orders of the Learned Magistrate passed in connection with C.S.Case No.6173 of 2018 and submitted that Learned Magistrate before issuance of process under Section 204 of the Code of Criminal Procedure directed the officer in charge of the police station to cause an inquiry in respect of the allegations contained in the complaint under Section 202 of the Code of Criminal procedure through A.C.P., Central and thereafter on 07.07.2018 after perusing the report submitted under Section 202 of the Code of Criminal Procedure and the materials on record issued process against the petitioners after observing that there was sufficient ground for proceeding against the petitioners. According to his contention the order of issuance of process suffered from vagueness as the same did not disclose the nature of the alleged offences in respect of which the accused would face trial.

In support of his contention Learned Counsel for the petitioners has placed his reliance on several decisions. The decisions cited by the Learned Counsel for the petitioner are as under:

Pepsi Foods Ltd. And Another Vs. Special Judicial Magistrate and Others reported in (1998)5 SCC 749; Thermax Ltd. and Ors. Vs. K.M.Johny and Ors. passed by the Hon'ble Apex Court in Criminal Appeal No.1868 of 2011 arising out of SLP (Crl.) No.590 of 2008 on 27.09.2011; Alpic Finance Ltd. Vs. P.Sadasivan and Another reported in (2001)3 Supreme Court Cases 513; Rakesh and Another Vs. State of Uttar Pradesh and Another reported in (2014) 13 SCC 133; Mahesh Chand Vs. B.Janardhan Reddy and Another reported in (2003)1 SCC 734; Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others reported in (1982) 3 SCC 510; Trisuns Chemical Industry Vs. Rajesh Agarwal and Others reported in (1999) 8 SCC 686; S.W.Palanitkar and Others Vs. State of Bihar and Another reported in (2002)1 SCC 241.

On the contrary, the Learned Advocate appearing for the opposite party has contended that the Learned Magistrate has issued the process on being satisfied regarding the existence of prima facie case from the inquiry report under Section 202 of the Code of Criminal Procedure and from the materials placed on record. He has further contended that the order of issuance process is purely interim in nature and the order has been passed by the Learned Magistrate in exercise of discretionary powers after finding prima facie case for commission of alleged offences mentioned in the petition of complaint. It is the specific contention of the opposite party that at the time of issuance of process under Section 204 of the Code of Criminal Procedure the Magistrate is not required to assign reasons in support of the order. Learned Advocate for the opposite party has continued to argue that the order of issuance of the process indicates that the Learned Magistrate has applied his judicial mind before issuance of process.

In support of his contention, Learned Counsel for the opposite party has cited the following decisions:

Kanti Bhadra Shah and Another Vs. State of W.B reported in (2000)1 Supreme Court Cases 722; U.P. Pollution Control Board Vs. Mohan Meakins Ltd. and Others reported in (2000)3 Supreme Court Cases 745; Leena Vivek Masal Vs. State of Maharashtra and Another reported in (2018)2 Supreme Court Cases (Cri) 289; Dy. Chief Controller of Imports & Exports Vs. Roshanlal Agarwal and Others reported in (2003)4 Supreme Court Cases 139.

Having heard the Learned Counsel for the parties and on perusal of the materials placed on record, it appears to me that the short question that arises for consideration in this application under Section 482 of the Code of Criminal Procedure is whether the Learned Magistrate was justified in issuing process against the petitioners.

The order of issuance of the process has been strongly challenged by the petitioners mainly on three grounds:

The 1st ground is that previously the opposite party lodged an FIR in respect of the self-same allegations and police submitted final report after completion of investigation. Opposite party filed protest petition challenging the said final report and that protest petition was rejected. The order of rejection of protest petition has not been challenged. Thereafter, the opposite party instead of challenging the said order filed the present complaint on same facts. It is the specific claim of the petitioners that the present complaint being second complaint is totally barred in the eye of law.

The 2nd ground of the petitioners is that the dispute raised by the opposite party in the complaint is purely civil in nature and as such the continuance of the complaint case would be an abuse of process of the Court.

The 3rd contention of the petitioners is that the order of issuance of process suffers from vagueness as it did not disclose the Sections of the Indian Penal Code in respect of which the petitioners would face trial.

Now, I have to deal with the points raised by the petitioners one by one. So far as point on point no.1, is concerned I have to see the contents of the complaint of C.S.No.6173 of 2018 and the contents of the FIR lodged by the opposite party with Hare Street Police Station i.e. FIR No.594 of 2015. On perusal of both the complaint and the FIR mentioned above, it appears to me that the facts of complaint of C.S. No.6173 of 2018, are the verbatim reproduction of the facts narrated in FIR No.594 of 2015. From the copy of the order dated 05.01.2018 passed in G.R.Case No.2298 of 2015, it transpires that after completion of investigation final report was submitted in connection with Hare Street Police Station Case No. 594 of 2015 and the present opposite party filed protest petition. The said protest petition was rejected by the Learned Magistrate after observing that the investigation disclosed a dispute of civil nature between the parties and the materials did not make out any offence. That order has not been challenged by the opposite party i.e. the complainant who was the maker of the FIR No.594 of 2015 of Hare Street Police Station.

In the decision of Rakesh and Another Vs. State of Uttar Pradesh and Another reported in (2014) 13 Supreme Court Cases 133 and in B.Chandrika Vs. Santhosh and Another reported in (2014) 13 Supreme Court Cases 699, our Apex Court held that acceptance of final report submitted by the Investigating Officer after completion of investigation by the Magistrate by itself, would not stand in his way to take cognizance of the offence on a protest/complaint petition. In paragraph 7 of the decision of Rakesh and Another Vs. State of Uttar Pradesh and Another our Apex Court observed as under:-

"The view expressed by this Court in Gopal Vijoy Verma has been followed in Mahesh Chand Vs. B.Janardhan Reddy and Another also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani Vs. G.D.Mehrotra. The clear exposition of law in paragraph 12 of Mahesh Chand Vs. B.Janardhan Reddy and Another which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct."

"12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised."

In the case at hand the protest petition was rejected by the Learned Magistrate. Final report was accepted by the Learned Magistrate and the accused was discharged. Instead of challenging that order, the opposite party lodged another FIR on the same facts. The order of rejection of protest petition remains unassailed. In this connection, the Learned Counsel for the petitioner has placed his reliance upon the decision of Mahesh Chand Vs. B.Janardhan Reddy and Another reported in (2003)1 Supreme Court Cases 734.

In the decision cited by the Learned Counsel for the petitioner a question arose whether a second complaint on the same facts could be entertained. In paragraph 19 of the said decision Hon'ble Apex Court was pleased to observe as under:-

"19.Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."

In the case at hand, after investigation police submitted final report in connection with the FIR lodged by the opposite party on same facts. Opposite party filed protest application and the same was rejected by the Learned Magistrate by passing a speaking order. That order of rejection of protest application had not been challenged by the opposite party. Opposite party filed a second complainant on the same facts. In the previous complaint, i.e. the protest petition was rejected and the final report was accepted as the facts revealed during investigation make out a case of civil nature and does not reveal materials constituting any offence.

In this connection, Learned Advocate for the opposite party has contended that the Learned Magistrate while rejecting the protest petition has given liberty to the opposite party to file a complaint. It is true that the Learned Magistrate observed that the complainant was at every liberty to file a complaint separately. This does not mean that the complaint on the same allegations will be entertained if it is filed. In view of the decision of Mahesh Chand Vs. B.Janardhan Reddy and Another as reflected in paragraph 19, the Magistrate can take cognizance of the offence on a protest petition/complaint petition or on a second complaint only in exceptional circumstances viz, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or new facts which could not, with reasonable diligence have been brought on record in the previous proceedings have been adduced. The second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Only in exceptional circumstance, the second complaint on the same allegation can be entertained. In the instant case, the complaint filed by the opposite party is the verbatim reproduction of the FIR lodged by him previously. Investigation in respect of the previous FIR culminated in final report and the said report was accepted by the Learned Magistrate after considering the material placed in the case diary and the accused was discharged. The subsequent complaint lodged by the opposite party does not mention anything wherefrom it can be presumed that the previous order of rejection of protest petition was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the present case, the Learned Magistrate in connection with the previous complaint/FIR took view that the dispute as raised by the complainant in the previous FIR was a dispute of civil nature and no offence had been made out by the complainant. Previously, I have observed that the present complaint is nothing but the verbatim reproduction of the previous complain/FIR.

The above discussions lead me to hold that the present complaint does not come within the purview of any of the exceptions as mentioned in the decision of Mahesh Chand Vs. B.Janardhan Reddy and Another cited earlier.

The second contention of the petitioner is that dispute as raised by the opposite party in his complaint is purely civil in nature.

From the materials placed on record as well as from the contents of the complaint it appears that there was a written memorandum of understanding between the petitioner and the complainant for construction of a structure of G+4. The terms and conditions were incorporated in the said memorandum of understanding. The allegations contained in the complaint relate to violation of the terms and conditions of the said memorandum of understanding.

It appears that the opposite party previously lodged an FIR being Hare Street Police Station Case No.594 of 2015 in respect of self-same facts and allegations and the investigation ended in submission final report observing the dispute was of civil nature. Opposite party filed protest petition and same was rejected. The final report was accepted by the Learned Magistrate by passing a speaking order, that order has not been challenged. Moreover, the facts narrated in the second complaint are similar to that of the previous one and the present complaint does not come within any of the exceptions as mentioned in paragraph 19 of the decision of Mahesh Chand Vs. B.Janardhan Reddy and Another. Facts narrated in the complaint petition disclosed a dispute of civil nature.

The 3rd contention of the petitioner is that the impugned order of issuance of process suffers from vagueness.

In this connection, Learned Counsel for the opposite party has contended that no reasons are required to be recorded at the time of issuance of process under Section 204 of the Code of Criminal Procedure. In support of his contention, he has cited the decision of Kanti Bhadra Shah and Another Vs. State of West Bengal reported in (2000)1 Supreme Court Cases 722. Paragraphs 8 and 9 of the decisions of Dy. Chief Controller of Imports and

Exports Vs. Roshanlal Agarwal and Others reported in (2003)4 Supreme Court Cases 139, are as under:-

"8.The second reason given by the High Court for allowing the petition filed by the respondents (accused) is that the order passed by the Special Court taking cognizance of the offence does not show that the learned Magistrate had even perused the complaint or that he had applied his judicial mind before taking cognizance. The order passed by the learned Magistrate reads as under:

"Cognizance taken. Register the case.

Issue summons to the accused."

In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.1 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B.2 it was held as follows: (SCC p.749, para 6)

The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."

In the decision of Leena Vivek Masal Vs. State of Maharashtra And Another reported in (2018)2 Supreme Court Cases (Cri)289. Paragraph 6 of the decision of U.P.Pollution Control Board Vs. Mohan Meakins Ltd. and Others reported in (2000)3 Supreme Court Cases 745 is as under:-

"6.In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B.1 The following passage will be apposite in this context: (SCC p.726, para12)

"12.If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial."

The order dated 07.07.2018, regarding taking of cognizance by the Learned Magistrate runs as under:-

"Today is fixed for report as per S.202 Cr.P.C. perused the report and the entire materials on record the Court is of the view that there is sufficient ground for proceeding this case so, issue process u/s 204 Cr.P.C.

Fix 04/08/18 for S/R."

In this connection, Learned Counsel appearing for the petitioners invited the attention of the Court to paragraph 28 of the decision of Pepsi Foods Ltd. And Another Vs. Special Judicial Magistrate reported in (1998)5 Supreme Court Cases 749.

Paragraph 28 of the said judgment is as under:-

"28.Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion.

The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Learned Counsel has vigorously argued that the impugned order of issuance of process shows the total non-application of mind of the Learned Magistrate at the time of issuance of process.

It is also settled principle of law that the Magistrate shall have to issue process where there is strong suspicion about commission of offence by the accused.

The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto as observed by our Apex Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others. In the present case, the impugned order does not disclose the law or the relevant provisions of the Indian Penal Code which are applicable to the alleged facts. The impugned order of issuance of process indicates that the Learned Magistrate has not applied his judicial mind at the time of issuance of process.

In the present case, similar allegations have been investigated previously and the same was closed as the alleged dispute was found to be of civil nature.

The complaint should disclose the ingredients of the offences mentioned in the complaint petition. Absence of material ingredients of the alleged offence does not justify to issuance process against the accused to face trial. In the instant case, the petition of complaint failed to disclose the relevant ingredients of the alleged offences. Moreover, the alleged facts indicate the nature of civil dispute. In this connection, Learned Advocate for the petitioner has cited a decision of Thermax Ltd. and Ors. Vs. K.M.Johny & Others (Criminal Appeal No.1868 of 2011 arising out of SLP (Crl.) No.590 of 2008) SCC online.

Having regard to the facts and circumstances, stated and the discussion made above I am of the view that the continuance of criminal proceedings against the present petitioners would be an abuse of the process of the Court. It is a fit case to exercise the inherent power and to quash the criminal proceedings pending against the present petitioners. Accordingly, the application is allowed.

The criminal proceeding being C.S.No.6173 of 2018 pending before the Learned Metropolitan Magistrate, 11th Court, Calcutta, is hereby quashed.

Re: C.R.A.N. 1613 of 2019

In view of the order passed in C.R.R.614 of 2019, the C.R.A.N. 1613 of 2019 application becomes infructuous and stands disposed of.

Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.