Sree Kant Bangur vs State of West Bengal

Malay Kumar Basu, J.—This is a Revisional Application u/s 482 Code of Criminal Procedure filed by Sreekant Bangur (hereinafter referred to as the applicant) who is one of the accsed persons in the criminal case pending before the Court of the 8th Metropolitan Magistrate, Calcutta being T.R. No. 30/97 arising out of C. 446/97 u/s 138/141 of the Negotiable Instruments Act, 1881 (as amended upto date) for an order quashing the said proceeding and all order passed therein so far as it relates to this applicant.

The case of the applicant is that the O.P. No. 2, Kunal Kumar Chatterjee on behalf of the Peerless Abasan Finance Ltd. lodged a complaint date February 14, 1997, before the Court of Chief Metropolitan Magistrate, Calcutta, againg this applicant along with others levelling therein allegations which according to the applicant are petently absured and inherently improbable. In that complaint the complaint (O.P. No. 2 of this revisional application) has alleged that the applicant along with three others (arraigned as-accused No. 2 to 5 in that petition of complaint) are Directors of the accused company, Viz. M/s. Bangur Foundation Ltd. and are in Charge of and responsible to the said company for the conduct of its day-to-day business and that as per the request of the said company intercorporate deposit of Rs. 100 Lakh was made by the Peerless Co. to them on March 25, 1996, with interest accrued thereon for a period of 97 days. The further allegation in that complaint is that to liquidate the said liability the said company issued four cheques for 25 lakhs each and a fifth cheque for Rs. 5 lakhs and odd for repayment of the entire amount of intercorporate loan with the amount of interest thereon. The cheques being drawn on the Bank of Rajasthan Ltd., Chowringee Branch were presented through the Banker of the Peerless Co., the Vaisya Bank, on December 19, 1996, but they were re-turned with the remark, ''Insufficient Funds''. The Peerless Company then issued notice date December 30, 1996 demanding the total sum covered by the said dishonoured cheques, but the accused company made no payment in spite of having received that notice and then this complaint was filed against the accused persons including the applicant on the plea that he is one of the Directors of the accused company. But according to the applicant this averment in the complaint is totally wrong, since this applicant was not a director at the material point of time, nor was he in any way connected with the business of the company and this fact would be shown by the public documents or records lying with the Registrar of companies. Therefore, according to the revisional applicant, the impugned prosecution as against him is without any basis, illegal and mala fide and hence, liable to be quashed.

The principles governing the quashing of a criminal proceeding based upon complaint before a Court at an initial stage are now well-established. The apex Court in the case of Dhanalakshmi Vs. R. Prasanna Kumar and Others, ) has held that where there are specific allegations in the complaint disclosing ingredients of any offence, High Court should not quash proceedings for the purpose of putting amend to a criminal proceeding at the initial stage when the Magistrate has issued process u/s 204 Code of Criminal Procedure holding that there has been sufficient ground for proceeding. All that is to be looked into is whether the allegations levelled in the petition of complaint taken at their face value constitute the ingredients of any offence of which cognizance has been taken. In the aforementioned decision, it has been further held that the High Court was clearly in error in analysing the case of the complainant in the light of all the probabilitis and assessing the materials before it and concluding that the complaint could not be proceeded with and since there were specific allegations in the complaint disclosing the ingredients of the offence in question being supported by the sworn statement of the complaint, it sufficed for the purpose of taking cognizance or issuing process against the accused persons and the allegations were to be substantiated by the complainant at a later stage.

This view has been confirmed and followed in a host of subsequent decisions, Mr. Basu Learned Counsel for the O.P. No. 2 has referred to another decision of the Hon''ble Supreme Court in J.P. Sharma Vs. Vinod Kumar Jain and Others, wherein it has been held by its Devision Bench that taking all the allegations in the complaint to be true, without adding or subtracting anything, at this stage, it cannot be said that no prima facie case for trial had been made out and the question at this stage was not whether there was any truth in the allegations madem but the question is whether there was any truth in the allegations made but the question is whether on the basis of the allegations a cognizable offence could be said to have been committed and the truth or otherwise of the allegations is to be investigated at the time of trial. According to their Lordships, this is the limit of the power to be exercised u/s 482 of the Code of Criminal Procedure.

In the present case, it is very clear, that allegations made in the complaint cited above, viz., dishonour of cheque due to insufficiency of fund, constitute the ingredients of an offence u/s 138 of the N.I. Act. The learned Magistrate in view of the sworn statements of the complainant and some documents produced by him having been satisfied as to the making out of a prima facie case in support of the allegations under Sections 138 and 141 of the N.I. Act issued summons upon the accused persons-Mr. Bagchi, learned Advocate for the revisional applicant accused also does not appear to have seriously disputed this position. But, the entire focus of his argument is on the point that u/s 141 of the Act only a director of the company of the accused company can be liable for prosecution and his client was not a Director at the material time and therefore, on this score alone the proceeding as against this applicant is liable to be quashed.

In support of his contention, he has referred to a number of reported judgments. In Pepsi Foods Ltd. (M/s.) v. Special Judicial Magistrate and Ors. 1998 Cr.L.J. (S.C. 1) cited by him it has been held by the Hon''ble Division Bench of the apex Court that when the complaint does not make out any case against the accused, there is no necessity that he must undergo the agony of the criminal trial simply because it is at the initial stage and in such circumstances the order of the High Court refusing to quash the complaint on the ground that there was sufficient ground for proceeding against the accused and that alternative remedy was available under the Code would not be proper. But, the facts and circumstances of our instant case are far from identical. In the case under reference what happened, the complaint being u/s 7/16 of the P.F.A. Act did not show what role the Appellants played in the manufacture of the beverage which was said to be adulterated nor there was any averment as to how the complaint could say so and also if the Appellants manufactured the alleged bottle or its contents and the preliminary evidence on which the complainant relied upon also did not show these facts and thus the complaint and the preliminary evidence recorded in that case made out on case at all against the accused Appellant and hence the abovementioned verdict was passed. But here, as we have seen, the allegations made in the complaint vide para 2 clearly implicate the accused-applicant in his capacity as a Director of the Company apart from the fact that the complaint (Vide para 5) contains specific allegation to the effect that 5 cheques sent by the accused company towards repayment of the loan were returned unpaid being dishonoured by the Bank of the accused with the remarks, ''Insufficient funds'' thereby constituting the ingredients of the offence u/s 138 of the N.I. Act read with Section 141 thereof. The copy of the order of the Learned Magistrate shows that he was satisfied on a perusal of the sworn statements of the Complainant as well as the documents filed by him that a prima facie case'' under Sections 138, 141 N.I. Act had been made out against all the accused and accordingly, he issued summons upon them. It is not the case of the applicant that the initial deposition of the complainant was not in corroboration of those allegations of the complaint. Therefore, the above mentioned ruling of the Supreme Court will not be applicable to this case.

Then, the decision relied upon by Mr. Bagchi, viz., Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, also has no application. Here the allegations in the complaint even being taken on their face value did not make out the ingredients of the offences of which cognizance had been taken by the Magistrate and that is why the complaint was found liable to be quashed. But, obviously that is not the situation in the case at hand.

The case of Madhav Rao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre 1988 S.C.C. (Cri.) 234 has also been cited where the apex Court has given the verdict, viz., that for the purpose of quashing a complaint the High Court should consider the existence of any special feature in any particular case and that the Court cannot be utilised for any oblique purpose and where chances of ultimate conviction are bleak and it seems no useful propose is likely to be served by allowing a criminal Prosecution to continue the Court may quash the proceeding.

But this Ruling will not be applicable here for the obvious reason that such a exercise was to be made on the basis of the allegations of the complaint and not in view of any plea taken by the defence before the High Court without entering his appearance before the Court of the Magistrate.

Another decision referred to by Mr. Bagchi is Satish Mehra Vs. Delhi Administration and Another, . Here the apex Court ordered quashment of the criminal proceeding in question holding that the accusations were of incredulous nature and there was no sufficient ground for trial and further held that the Sessions Judge in view of Section 226, or the Magistrate u/s 239 of the Code of Criminal Procedure would be within their powers to consider even materials which the accused may produce at the stage contemplated u/s 226 or Section 239, as the case may be and if the accused succeeds in producing any reliable material at that stage which might fatally affect even the very substantiality of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage.

It is needless to point out that while coming to such a finding what played in their Lordships'' minds was the question of justifiability of the accused filing some vital document substentially affecting the fate of the case at the stage of framing of change and nor earlier in view of the mandatory provision of the law requiring the Court to give the accused an opportuity of being heard. But that finding has nothing to do with a situation like the present one where the accused without even entering his appearance before the trial Court in response to the summons issued by it has straightway come to the High Court with a prayer to quash the proceeding. It is not a case where it can be said that the accused has not been given the right of audience by the trial Court or that the Trial Court has not considered his submission at the stage of framing of charge. Obviously, the above decision of the apex Court is not meant to be attracted here, the circumstances being altogether different.

The next case law which Mr. Bagchi seeks to rely on is another decision of the apex Court State of State of Haryana and others Vs. Ch. Bhajan Lal and others, at Headnote-E where the principles for exerise of powers by the High Court for quashing any Criminal proceeding u/s 482 Code of Criminal Procedure have been discussed. Here Their Lordships started with the sermon that such a power should be exercised sparingly and that too in the rarest of rare cases. Mr. Bagchi draws my attention particularly to the para (5) of Head Note-E wherein it is observed by the Hon''ble Division Bench that if the allegations made in the complaint are so absured and inherently imrobable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, then the criminal prosecution in question will be liable to be quashed. But, I fail to understand how this clause will be applicable to the facts of the present case. Hers, as it has been pointed out above, no part of the allegations constituting the ingredients of the offence u/s 138 N.I. Act suffers from any improbability or absurdity. All that is intended to be brought home by the Revicional Applicant is that he was not a Director at the material time when the alleged occurrence took place and hence he cannot be proceeded against in view of the provisions of Section 141 of the said Act. Mr. Bagchi''s contention that the allegation of the complainant that the applicant was a director at the relevant time should be taken as an absurd or inherently improbable proposition cannot be accepted. The question whether he was a director of the accused company at that time is a factual question and must be determined by the Court at the time of trial by taking evidence and without appearing before the Trial Court at all and without raising such an issue before it at the appropriate stage he cannot expect a decision in his favour from this High Court straightway ordering quashment of the proceeding, particularly when the Magistrate before issue of process against the accused derived prima facie his satisfaction about the alleged directorship of the applicant-accused from the sworn statements of the complainant and certain documents filed. The Magistrate had nothing more at that stage to do. Under the provisions of Section 200 Code of Criminal Procedure the procedure to be adopted when a complaint is lodged is spelt out. It is incumbent upon the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witness present, if any, to satisfy himself as to the making out of any prima facie case to enable him to issue process. Here, there has been no lacuna on the part of the Magistrate in that respect. Had it been a case where the learned Magistrate had before him prima facie reason to distrust the averments in the complaint or the sworn statements of the complainant, then, of course, the order issuing process could be put into question. By any means, the allegations in the complaint, as they stand, cannot be said to be absurd or inherently improbable in any way. The attributes, ''absurdity'', ''inherent, improbability'' etc. are to characterise the allegations as they have been averred in the complaint and they are not to be inferred from the allegations that may be levelled by the defence in response. The case of the applicant that he was not a director at the relevant period and, therefore, not liable to any such prosecution on that score alone is to be adjudged from the evidence to be adduced before the Trial Court. When that Court issued the process after abserving all the prescribed modes of procedure and there has been no illegality anywhere the accused cannot supersede or circumvent the procedural law and get the proceeding quashed without entering his appearance before the Court of first instance. He could have invoked the extraordinary jurisdiction of this Court for quashment of the entire proceeding only if the allegations in the complaint did not prima facie constitute or disclose the offence alleged or the allegations in the complaint were so marked with absurdity or inherent improbability that there could not be any justification for proceeding with such a complaint and allow the process of the Court to be issued. As their Lordships of the Apex Court in J.P. Sharma v. Vinod Kumar Jain (Supra) (discussed above) have held in the question at this stage is not whether there was any truth in the allegations made, but the questions is whether on the basis of the allegations a cognizable offence or offences had been aleged to have been commited. The facts subsequently found out to prove the,truth or otherwise of the allegations made in the complaint would be investigated at the time of trial. In the case at hand the plea taken by the accused Petitioner that he was not a director of the company at the relevant time and hence was not at all liable is to be adjudicated upon by the Trial Court at the appropriate stage. In a similar situation in another case under the prevention of Food Adulteration Act in H.S. Jaian v. Food Inspectors Chernkob 1997 S.C.C. (Cri.) 968 (already discussed) a Division Bench of the apex Court held that the ples of the accused-Appellant that his company had nominated a person u/s 17(2) of the Act who would only be liable for any breach of the provisions of the Act and not this accused was a question of fact which could be gone into and decided at the stage of trial and hence the petition u/s 482 Code of Criminal Procedure for quashing the prosecution had not merit at all.

Mr Bose has referred to another Division Bench judgment of the Supreme Court in Municipal Corporation of Municipal Corporation of Delhi Vs. Purshotam Dass Jhunjunwala and Others, . The facts of this case are almost identical with our instant case. Here the Criminal prosecution against the accused Appellant was under Sections 16, 17 and 20 of the P.F.A Act. In the complaint complete details of the note of the Directors and the extent of their liability were given, but the Delhi High Court was of the view that the description was vague and the complaint did not disclose any offence against the Respondents Nos. 1 to 11 and hence it quashed this proceeding. The Hon''ble Supreme Court set aside that finding holding that for the purpose of quashing any proceeding only the allegations set forth in the complaint were to be seen and nothing further and whet would be the evidence of the Respondents was not a matter to be considered at this initial stage and that would have to be proved during the trial.

This must be so. Otherwise in every criminal prosecution the whole scheme of the Code of Criminal Procedure would have been given a total burial and in almost all the cases the accused would. have approached the High Court straightway under its extraordinary jurisdiction u/s 482 with a prayer for queshing of the proceeding raising one plea or other thereby reducing it into a forum of enquiry and appreciation of evidence which are exclusive tasks of the Trial Court.

In view of the entire discussion made above, I am to hold that this is not a fit case where this Court should exercise its discretion u/s 482 of the Code of Criminal Procedure 1973 and quash the proceedings against the accused-applicant and therefore the application u/s 482 is dismissed. He shall now appear before the Trial Court without any further delay and the learned Trial Magistrate shall proceed with the case in accordance with the Jaw.

Application dismissed.