Sukla Bose vs AKJ Engineering Pvt. Ltd. and Others

Shivakant Prasad, J.—The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 with a prayer for quashing of the proceeding being Complaint Case No. 16158/T.R. 1520/10 and order dated 26.3.2014 under Section 406 /420 of the Indian Penal Code pending before the Learned Metropolitan Magistrate, 16th Court, Calcutta.

Brief facts leading to the instant case is that the petitioner is arraigned as the accused by the complainant company opposite party No. 1 herein on allegations that the petitioner''s husband Subir Bose, since deceased was the sole proprietor of M/s. Unique Marketing having its registered office at 87/1, B.T. Road, Baranagar, Kolkata-700 090, who expired on 16.01.2009 and that she is a school teacher in a private school and except the household work, she has no connection with any other matters of the family. After Shradha Ceremony, the petitioner informed all concerned including the Office of Sales Tax, Cossipore Charge-E, Block-DF, Block-1, Salt Lake, Kolkata-700 091, the Licence Officer, Baranagar Municipality, Profession Tax Officer and Income Tax Officer stating inter-alia that business of her husband in the name and style M/s. Unique Marketing has been closed due to his death and requested all concerned to take necessary steps for cancellation of certificate in respect of Trading of M/s. Unique Marketing. According to the petitioner, all of a sudden she received a notice wherefrom she came to know that a criminal proceeding being Case No. C-16158/2010 has been registered under Sections 406 /420 of the Indian Penal Code against her in the Court of Learned 16th Metropolitan Magistrate at Calcutta which was lodged by M/s. AKJ Engineers Pvt. Ltd. having its office at 9, Dacres Lane, Kolkata-700069 alleging that during the period of 2008-2009 the said company supplied materials of various construction chemicals worth Rs. 27,27,444/- to M/s. Unique Marketing of which the petitioner husband namely Subir Bose since deceased was the sole proprietor and during business transaction there is a due of sum of Rs. 5,45,560/- and that after demise of her husband the petitioner is enjoying all the fruits of the said business but she has not paid the said due amount.

It is pointed out that a demand notice dated 05.9.2009 was issued calling upon the petitioner to pay the said dues with the allegation that the complainant company supplied the materials and her husband accepted by signing challans and out of total amount of Rs. 27,27,440/- her husband has paid Rs. 21,81,880/- up to 07.01.2009.

After receipt of the notice she gave reply through her Advocate by letter dated 23.9.2009 but the same was returned and not claimed. Second notice was issued by the letter dated 10.11.2009 sent which has been received by the learned Advocate for the complainant. Petitioner has submitted that there is no question of continuance of business of her husband, since deceased and complaint has been motivatedly made implicating the petitioner for forcible recovery of a frivolous amount taking advantage of the helpless condition of the petitioner.

It is further pointed out that if the letter dated 05.9.2009 the petition of complaint, enquiry report and the initial deposition dated 16.11.2013 are taken into consideration together it would be clear crystal that deposition made by the witness of the complainant is full of contradiction and that allegations are afterthought and concocted. Accordingly, it is submitted that issuance of process by the learned Magistrate relying on the enquiry report submitted by the Officer-in- charge of the concerned P.S. is illegal and has prayed for quashing of the proceeding as against the petitioner.

The learned Counsel for the petitioner has relied on a decision of Anil Mahajan v. Bhor Industries Ltd. and Anr. (1) reported in , (2006) 1 Supreme Court Cases (Cri) 746 wherein it has been held thus-

"From mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence."

Reference to a case of Dalip Kaur and Others Vs. Jagnar Singh and Another, has also been made wherein the Hon''ble Apex Court held that fraudulent and dishonest intention must exist from the very inception when the promise or representation was made. Non-refunding of amount of advance which results in simply a breach of contract and held that it does not constitute cheating or criminal breach of trust.

In the cited decision, the appellant owner had entered into an agreement of sale with respondent No. 2 agreeing to sell 13 acres of land @ Rs. 4,70,000/- per acre. Allegedly respondent No. 2 was said to be a property dealer. He paid a sum of Rs. 7,00,000/- towards advance to the appellant and appellant executed a deed of sale in favour of Balbir Singh and Mahendra Singh. Pursuant to the said agreement dated 12.5.2006 the appellant paid sum of Rs. 7,20,000/- to the respondent No. 2 at the time of cancellation of agreement of sale but since advance amount was not refunded, a criminal case was filed and process of the Criminal Court was issued. In that set of fact the Hon''ble Apex Court was of the view that if the dispute between the parties was essentially a civil dispute resulting from the breach of contract on the part of the appellants by non-refunding the amount of advance is same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. The ratio of decision is not well-nigh within the facts and circumstances of the instant case.

Yet the learned Counsel for the petitioner refers to another case of Neelu Chopra and Another Vs. Bharti, , in which case the Hon''ble Court quashed the complaint under Section 406 , 498A and 114 IPC with the observation that complaint was sadly vague. It has been observed that for lodging a proper complaint mere mentioning of relevant sections and language of those sections not sufficient and allowing the prosecution to continue against the aged appellants could be abuse of the process of law. In my considered view the cited decision is distinguishable from the facts and circumstances of the instant case. It is contended for the petitioner that fraudulent and dishonest intention must be shown to be existing from very beginning of the transaction. Accordingly, the Counsel for the petitioner submitted that criminal proceeding against the petitioner be quashed.

Per Contra - The learned Counsel for the opposite party No. 1 has contended that the fraudulent and dishonest intention is writ large which can be inferred if the conduct of the petitioner is taken note of. The petitioner gave intimation about the demise of her husband to the Sales Tax Officer with a request to cancel the certificate of registration due to closure of the said business and prayed for assessment of his refund and so also to the Licence Officer, Baranagar Municipality Office to cancel certificate of enlistment for profession trade and calling. The Professional Tax Officer, Income Tax Officer were also given letter dated 12th February, 2009 informing about the death of her husband with a prayer for cancellation of the certificate of enrollment but no communication was made to the complainant company in writing though she has admitted in clear crystal term that her husband was proprietor of M/s. Unique Marketing having dealing with the complainant company M/s. AKJ Engineering Private Ltd. According to the opposite party No. 1, petitioner was looking after the business affairs of her husband even after his death of her husband who placed orders to the complainant company for supply of chemicals, raw materials, Sika product which the complainant company had supplied as per the orders placed by said Subir Bose during his life time and as well as Smt. Sukla Bose, the accused lady herself time to time during the period of 2008 - 2009. It is categorically averred in the complaint that after the demise of Subir Bose, the accused lady is enjoying all fruits of business at present as absolute owner of the business left behind by her husband. It is specifically mentioned in paragraph 8 of the complaint that accused lady informed personally by visiting the complainant''s company that her husband Subir Bose had expired and requested the company to sit for settling all the dues of M/s. Unique Marketing and she requested the Director of complainant company for allowing her sometime after Shradh ceremony of her husband for delivering back the entire stock of sika products and also promised that after returning the said materials, she would pay the balance of amount due within one month to discharge the liabilities of herself and deceased husband but she deliberately, intentionally and willfully avoided the complaint for settling the dues and failed to make payment due to complaint till date even after making promises and commitment. All such allegations are subject to evidence to be adduced by the complainant and the petitioner as an accused has right to defend her case before the learned Magistrate in support of her defence.

This court is well aware of the proposition that mere fact that the act of the petitioner constitutes both civil and criminal wrong is no ground for quashing the criminal proceeding before the Metropolitan Magistrate. It is a clenched position of law that criminal proceedings would not be quashed merely because the complainant has got civil remedy.

Accordingly, the criminal revisional application being CRR No. 2464 of 2014 is dismissed.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.