R.V. Palega and Another vs State and Another

Ashim Kumar Roy, J.—The petitioner moved this application invoking the inherent jurisdiction of this Court for quashing of the Jorabagan Police Station Case No. 126 dated 14/11/2006, u/s 420/120B of the Indian Penal Code and the result of investigation on the grounds as follows:

(a) Although both the petitioner Nos. 1 and 2 have been described as the partners of a firm M/s. Metco Export International while the petitioner No. 2 is one of the partner but the same is not correct so far as the petitioner No. 1 is concerned.

(b) In the complaint although it has been alleged that a sum of Rs. 10,58,939/- was the outstanding but according to the admission of the complainant in his lawyer''s notice, at best a sum of Rs. 3,58,939/- is due and payable.

(c) There was a dispute going on by and between M/s. Metco Export International and M/s. Sandip Trading Company, the opposite party No. 2 and the same will be reflected from the letter of the petitioner dated March 21, 2005 and the instant complaint has been made to harass the petitioner.

(d) Due to the delayed supply of edible oil by M/s. Sandip Tradip Company the petitioner''s firm had suffered a loss to the tune of US $ 20,000/-.

(e) The learned Advocate of the opposite party No. 2 in his letter dated March 18, 2005 unequivocally stated the total outstanding was Rs. 3,58,939/-.

(f) The opposite party No. 2 has not approached the Court with a clean hand.

(g) The opposite party No. 2 falsely alleged that the outstanding was Rs. 10,58,939/- to mislead the Court.

(h) The complainant has not disclosed the true facts and suppressed that the dispute arises out of delayed supply of edible oil.

(i) Although there is the allegation of the criminal conspiracy in the complaint but nowhere it has been disclosed who was those conspirators.

(j) Allegation of cheating is absent.

(k) In course of running transaction the outstanding in question arises.

(l) Out of the bill raised for amount of Rs. 10,58,939/- the complainant already received a sum of Rs. 7 lakhs by a demand draft.

(m) This complaint has been lodged only to harass the petitioner and in order to extort money by coercion.

(n) The dispute is entirely civil in nature.

Mr. Utpal Mazumder, the learned Counsel appearing on behalf of the petitioner with Mr. Pushan Kar and Mr. Sanjoy Bose reiterated and raised the same grounds as aforesaid in support of prayer for quashing. He further submitted that in connection with this case both the petitioners were arrested by the police and were granted bail on the very first day of their production in Court on the basis of the aforesaid letter of the learned Advocate of the de facto-complainant, wherefrom it has been transpired the outstanding was Rs. 3,58,939/- and the said facts was suppressed in the complaint. In this connection Mr. Mazumder draws the attention of this Court to the order dated April 17, 2007. Mr. Mazumder in support of his contention relied on the following decisions:

Relating to the case of, (i) Indian Oil Corporation Vs. NEPC India Ltd. and Others, , (ii) Ram Biraji Devi and Another Vs. Umesh Kumar Singh and Another, , (iii) Kuber Rolling Mill Private Ltd. and Ors. v. State of Gujrat and Anr. reported in 2006 Cr. LJ 2350, (iv) LMJ International Ltd. and Ors. v. State of Karnataka and Anr. reported in 2007 Cr. LJ 4437, (v) Veer Prakash Sharma v. Anil Kumar Agarwal and Anr. reported in 2007 Cr. LJ 3755, (vi) Monalisa Multiplast Ltd. v. TVS Finance and Services Ltd. reported in 2007 Cr. LJ (NOC) 545 (MAD.), (vii) Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and Anr. reported in 2006 Cr. LJ 4050, (viii) Rajnikant and Anr. v. State of Bihar and Anr. reported in 2006 Cr. LJ (NOC) 67 (JHAR.), (ix) R.K. Sharma v. State of U.P. reported in 2006 Cr. LJ (NOC) 430 (ALL), (x) Shree Ramdeobaba Steel Pvt. Ltd. and Ors. v. State of Jharkhand and Anr. reported in 2006 Cr. LJ (NOC) 280 (JHAR.), (xi) Milan Anandan v. State of U.P. and Ors. reported in 2006 Cr. LJ (NOC) 17 (ALL.), (xii) Coromondal Cements Ltd. and Anr. v. State of A.P. and Ors. reported in 2006 Cr. LJ (NOC) 343 (A.P.), (xiii) S. Subhadra v. Adishwar India Ltd. and Anr. reported in 2006 Cr. LJ (NOC) 440 (KAR.), (xiv) Ajay Mitra Vs. State of M.P. and Others, .

On the other hand, Mr. Joy Sengupta appearing with Ms. Sreyashee Biswas on behalf of the opposite party No. 2 submitted that none of this ground can be pressed into service to urge quashing of the First Information Report where police is in the midst of investigation and the same has not yet been completed. He further submitted all the points raised are disputed question of facts and cannot be decided at this stage. Mr. Sengupta denied about the receipt of Rs. 7 lakhs and submitted the same being a pure question of facts can only be adjudicated during the course of the trial after recording of evidence.

The learned Advocate of the de facto-complainant relied on the following decisions:

Relating to the case of (I) Rajesh Bajaj Vs. State NCT of Delhi and Others, State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, State of Orissa Vs. Debendra Nath Padhi, Ahamad v. Mohd. Habibur Rehman Faizi and Ors. reported in 1996 C Cr. LR (SC) 199, (V) State of A.P. v. Golconda Linga Swamy and Anr. reported in 2004 SCC (Cri) 1805.

Mr. Swapan Kumar Mullick, the learned Advocate appearing on behalf of the State produced the case diary and submitted that no quashing is permissible on the grounds as raised by the petitioners. He further submitted at this stage when investigation is going on there is no legitimate grounds for which the same be quashed before its completion. According to Mr. Mullick if during investigation it is finally found that from the materials collected by the police no case of cheating is made out then certainly the investigating agency would submit final report.

Heard, the learned Counsels appearing on behalf of the parties. Perused the materials on record and those appearing from the case diary.

This is a case for quashing of a First Information Report as such the most vital question arises for decision whether or not on the allegations contained in the said FIR, any offence has been made out. In the instant case having perused the First Information Report filed with the instant criminal revisional application I found the following allegations contained therein:

(a) The accused persons who used to purchase edible oil from the neighbouring persons were introduced with the complainant by them. Thereafter, the said accused persons on several occasions met the complaint and explained him about their turnover and progress in business at Mumbai as well as at Arab Countries. When they represented that for export to various overseas countries they required bulk quantity of edible oil and as soon as they placed order over telephone the complainant has to make arrangement for supply of the goods at Mumbai forthwith and within 7 days from the receipt of delivery of the goods the payment would be made by draft or cheque.

In course of such negotiation the accused also referred the names of the some of neighboring business concerns of Posta Market who claiming that they were regularly dealing with their company.

(b) On or about last week of November, 2004 the proprietor of the opposite party No. 2 receipt a call from the accused No. 2 who asked him to send 20 metric tons of edible oil and upon receipt of such order the complainant sent total 20 metric tons of edible oil by road through M/s. Prakash Oil Carriers under proper challan and same was received and delivered at the godown of the accused persons in due course. The said 20 metric tons of edible oil was worth of Rs. 10,58,939/-.

(c) In spite of receipt of delivery of the edible oil as ordered the accused persons did not make any payment and on one pretext or other avoided payment. The father of the complainant then personally met the accused persons at Mumbai and requested them for payment when he was told that immediately after receipt of payment from the overseas buyer they would release the payment to the complainant but no payment has been finally made.

(d) The accused persons on the link as the customer of sister''s concern of the de facto-complainant, induced the de facto-complainant to part with the edible oil and the de facto-complainant believing the representation of the accused and with the hope for continuous business of huge quantum delivered the goods valued about Rs. 10,58,939/- along with sales tax cost, but at present the de facto complainant realized that since inception the accused persons entered into a criminal conspiracy to cheat the de facto-complainant''s concern and after receiving the goods with some false pleas they had started to defer the payment as to shift the goods elsewhere and lastly they have fulfilled their target and misappropriated the said amount and thereby committed the offences punishable u/s 420/120B of the Indian Penal Code.

In view of the clear and specific allegations made in the First Information Report and the evidentiary materials collected by the police during investigation contained in the case diary I have no hesitation to hold that on those allegations a clear case of commission of offences of cheating has been made out as against the petitioners and as such question of quashing of the FIR does not at all arise. Moreover, the investigation of this case is in progress and no police report in final form u/s 173 of the Code of Criminal Procedure has been submitted, thus it would not be at all justified to interfere with the statutory power of the police to investigate a case relating to commission of cognizable offences without allowing such investigation to reach its logical conclusion. In any event, no annexure to a criminal revisional application can be at all taken into consideration without the content thereof being tested and proved during the trial, to decide the correctness of any allegation made in an FIR. In this connection reliance may be placed in the case of State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, , as well as in the case of State of Bihar v. P.P. Sharma reported in 1991 Criminal Law Journal 1438. In a subsequent decision relating to the case of State of Orissa Vs. Debendra Nath Padhi, , the Apex Court categorically held even at the stage of considering the question of charge the accused is neither be permitted to produce any document and to rely upon the same to establish his defence of innocence unless such documents are of unimpeachable character of sterling quality. The documents filed with this application and relied upon by the defence are not the part of the case diary and those documents cannot be said to be of unimpeachable character of sterling quality and the same ought to be left out of consideration at this stage. In my opinion, a question of fact which may be relevant consideration for granting bail cannot be the ground for quashing of FIR without the same being tested and proved during the trial. I am of the further opinion, at the stage of considering the question of quashing of FIR and investigational proceedings, the Court should be restrained from considering the version of the accused/petitioners given in their petition u/s 482 of the Code of Criminal Procedure vis-a-vis that of the complainant and entered into a debatable area for deciding which version was true, a course which is not permissible in law.

For the reasons as above, I am not inclined to quash the FIR and the investigational proceedings. This criminal revisional application stands dismissed.

Let an urgent xerox certified copy of this order be supplied to the parties, if applied for, as early as possible.