Rajeev Ranjan Choudhury vs The State of Jharkhand

Mr. Anant Bijay Singh, J. - The petitioner is apprehending his arrest in connection with Complaint Case No. 4000 of 2014 for the offence under section 406 and 420 of the Indian Penal Code.

The prosecution case, in short, is that complainant Manoj Kumar Paul is a proprietor of a firm namely, Pal Enterprises, and the petitioner was his close friend and he sought help from him for business as he neither had a firm nor any commercial tax registration. After much persuasion, the complainant agreed on 13.05.2009 for which they entered into a verbal agreement to do business with the profit and loss ratio of 50 per cent and a current account was opened in Canara Bank. Thereafter the complainant and the accused procured material and supplied to customers and the money received was remitted into the current account of Pal Enterprises of which the complainant was the sole signing authority, who in turn used to give sign blank cheques to the petitioner. The bank statements used to be delivered to him only and was informed that they were suppliers of raw materials. The complainant was unaware of nature of payments. The petitioner used to say that there was sluggish demand and due to that reason the business was running in loss which version was accepted by the complainant. In May, 2011 the petitioner suddenly stated that he could not work any longer as his health would not permit and therefore, he decided to sit and settle the accounts, whereupon it was noticed that a sum of only Rs. 6963/- was in the firm''s current account and despite the laps of six months, the accounts could not be reconciled and settled. After waiting for more than a year, when the complainant requested the Bank Settlement from 01.01.2009 to 18.10,2014 and checked the transaction, he found that the blank cheques signed by him were being used to pay firms which were the vendors of the raw materials but were actually withdrawn by the petitioner in his name and converted into his account in the names of M/s Deploy Enterprises, India Motors and one Priti Singh. The petitioner fraudulently misappropriated from the proprietorship Account of Pal Enterprises Rs. 1,60,93,000/- only. It is further alleged that it was found that Deploy Enterprises was a proprietorship owned by petitioner and the date of Registration was 05.08.2009 and was carrying in wholesale and retail trade in ferrous and non ferrous metals and hardware and tools. It is further alleged that petitioner has misappropriated a sum of Rs. Two crores forty eight lakhs and eighty two thousand in the name of accused no. 2.

It appears that vide order dated 27.06.2016, the matter was referred to Secretary, D.L.S.A, Jamshedpur for mediation but as per mediation report, mediation has failed, thereafter the case was to be heard on merit.

The learned counsel for the petitioner has submitted that the admitted case of the complainant in the complaint is that he entered into a verbal agreement to do business jointly with the petitioner in 2009 and whereas, the complaint case has been field with regard to the allegation made in the complaint petition on 11.12.2014 after six years and no reason has been assigned in the complaint petition with regard to such delay in filing of the complaint. It is further submitted that the account of the firm was opened in the name of proprietorship firm and the complainant was the sole signing authority for withdrawal of the amount and if he had given blank cheque to the petitioner since start of the business that is years, 2009, but he did not make any complaint for 56 years with regard to withdrawal of the amount from the bank.

It is further submitted that the petitioner in his individual capacity as proprietor was doing business under the name and style of Deploy Enterprises only and the petitioner has got nothing to do with Indian Motors in any manner whatsoever and the learned court below while taking cognizance of the offence has not taken cognizance of the offence against other named accused persons except this petitioner and one Miss. Priti Singh. It is further submitted that Account No. 2970201000176 of Canara Bank, Dimna Road Branch was an account of Pal Enterprises, which is a proprietorship concern of the complainant of which the complainant himself is the sole signing authority and therefore the burden of proof entirely lies on the complainant regarding the transactions in the said account of Pal Enterprises and the petitioner cannot be in any way be held liable or responsible. It is further submitted that from perusal of the records furnished in the court below by the complainant, it would be apparent that the bank, statement would clearly show that the last transaction made in the account of Pal Enterprises was in April, 2011 and it does not stand the reason why the complaint was filed after a laps of three and a half years by the complainant for which no explanation whatsoever, has been furnished and which clearly goes to show that the present prosecution is a malicious prosecution. It is further submitted that there is long delay in lodging the complaint.

It is further submitted that the account of Deploy Enterprises are audited by J.P. Khirwal, Chartered Accountant for the period year ending 31st March, 2011, 31st March, 2012 and 31st March, 2013, the balance sheet is enclosed herewith which would show that the petitioner''s firm itself is transacting business of more than two crores annually, xerox copy of the above balance sheet has been annexed as annexrure 4 series. It is further submitted that as per allegation, it is purely a case of unregistered partnership business agreement and commercial transaction between the parties and as such it will not come under the purview of section 406 and 420 of the Indian Penal Code. Learned counsel for the petitioner relied on a judgment of the Hon''ble Supreme Court in "Thermax Limited and Others v. K.M. Johny and Others" reported in (2011) 13 SCC 412;

"Criminal Trial-Practise and Procedure-Delay/ Latches/Limitation-Held, if there is huge delay and in order to avoid period of limitation in civil law, criminal proceedings cannot be resorted to In instant case, complaint was filed in 2002 while alleged disputes pertained to period from 1993 to 1995 Respondent 1 was trying to circumvent jurisdiction of civil courts which estopped him from proceeding on account of law of limitation, which was impermissible."

Learned counsel for the petitioner referring to supplementary affidavit has submitted that after June, 2015, the petitioner is regularly undergoing dialysis at woodlands Multispeciality Hospital Limited, Kolkata on regular weekly basis, copy of the medical prescription has been annexed as annexure 5 series.

On the other hand, learned counsel for the complainant vehemently opposed the prayer for bail and filed counter-affidavit. Referring to various paras of the counter-affidavit learned counsel for the opposite party no. 2 has submitted that the petitioner has misappropriated the huge amount of the complainant which is evident from the statement of bank account annexed with the supplementary affidavit filed by the petitioner. It is further submitted that the accounts annexed with the supplementary affidavit of the petitioner is not relevant for the purpose of present case because the same shows transactions after the occurrence. It is further submitted that the petitioner dishonestly withdrew the money in the account and thereby misappropriated huge amount of the complainant.

Learned A.P.P also opposed the prayer for anticipatory bail.

It appears that the judgment relied upon by the counsel for the petitioner is not applicable in this case. Admittedly, the huge amount of the complainant has been misappropriated by the petitioner. Prima facie, the complainant has been able to make out a case under section 406 and 420 I.P.C. So, taking all these facts, I am not inclined to grant anticipatory bail to the petitioner. Accordingly, his prayer for anticipatory bail is hereby rejected. The petitioner is directed to surrender before the court below and pray for regular bail which shall be considered by the court below on its own merit.