Sanjoy Rathi vs State of West Bengal and Others

Ashim Kumar Roy, J.—The petitioner who has been charge sheeted under section 406/420 I.P.C. has approached this court for quashing of the same on the grounds as follows,

(a) The advance if any for supplying cotton bales was made by the de facto complainant in course of running commercial transactions and there cannot be any criminal offence.

(b) Before issuance of warrant of arrest the court has not complied with the provisions of section 41A Cr.P.C. which is contrary to the ruling of the Hon''ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar, .

(c) The order of taking cognizance does not reflect any application of mind.

(d) The provision of rule 183 of Criminal Rules and Orders has not been followed.

(e) Order sheet has not been recorded in form M-16.

(f) No case can said to be made out when admittedly the petitioner sent the goods but the same was lost in transit.

Heard the learned counsel appearing on behalf of the petitioner. Considered his respective submission.

A quashing of charge sheet is always permissible when it appears that on the face of the allegations made in the F.I.R. and the materials collected in support of the same no offence is made out. According to the F.I.R. it is the case of the de facto complainant that his company advanced a sum of Rs. 19 lakhs and odd to the company of the accused for supplying 116 cotton bales. It is his further case although the accused persons promised to deliver the cotton bales shortly but after receipt of advance they remained silent and no goods was delivered. Thereafter, on several occasions the accused person was contacted but there was no response.

On the face of those allegations and in its entirety, it cannot be said that no offence for which charge sheet has been submitted is made out. This is a case where advance was obtained for supplying of cotton bales and therefore when the accused did not supply, a prima facie case of cheating is made out.

The learned counsel for the petitioner relied on various annexures to this application to establish his case that entire transactions took place in course of running business and therefore no criminal offence is made out and the dispute between the parties, if any, is civil in nature. The contention of the learned advocate of the petitioner cannot be considered because no quashing is permissible on annexures. In this regard reliance may be placed in the case of Collector of Customs and Another Vs. State of W.B. and Another, and in the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, .

The petitioner has sought for quashing of the charge sheet essentially on his defence. There is no scope to adduce defence when an accused is approaching the court for quashing of the charge sheet before trial. Furthermore, merely because the nature of dispute is primarily civil in nature, criminal prosecution cannot be quashed. The test is to see whether on the face of the materials collected during investigation a criminal case is made out or not. In this regard the decision of the Hon''ble Supreme Court in the case of Lalmuni Devi Vs. State of Bihar and Others, and M. Krishnan Vs. Vijay Singh and Another, be well considered. In the case of M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, , it was held by the Hon''ble Apex Court mere fact that offence was committed during a commercial transaction is not sufficient for quashing of a criminal case.

The contention of the learned advocate of the petitioner that the order of taking cognizance does not reflect any application of mind is without any force. The order of taking cognizance does not require any formal action of any kind while taking cognizance, no court is required to narrate in his order, the materials on which it was justified in taking cognizance. So far as the rest of the contentions are concerned at best those are mere irregularities and are curable and that cannot be pressed into service for quashing of any charge sheet. In this regard the decision of the Hon''ble Supreme Court in the case of S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Others, , be well referred.

For the reasons stated above, this criminal revision is found to be without any merit, accordingly, this application stands dismissed and disposed of.

Urgent xerox certified copy of this order be given to the parties, if applied for, as early as possible.