M.S Banga v. State Of West Bengal & Anr.

Sankar Prasad Mitra, J.:— This is an application under section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner praying for quashing the proceeding of G.R Case No. 1301 of 2002 and all orders passed therein, including orders dated 23.5.2003 and 6.6.2003 pending before the learned SDJM, Burdwan arising out of Burdwan (Sadar), P.S Case No. 570 of 2002 dated 11.11.2002 in which chargesheet under sections 406, 467, 468, 420 and 120B was filed against the present petitioner being Chairman including a host of others connected with Hindustan Lever Ltd.

2. The opposite party No. 2 lodged a complaint on 7.10.2002 before the learned SDJM, Burdwan against the present petitioner including others seeking direction from the Court to refer the matter to the concerned P.S under section 156(3) for registering the case and on receipt of the said complaint, Burdwan (Sadar) P.S registered the Case No. 570 of 2002 dated 11.11.2002 under sections 406, 467, 468, 420 and 120B of IPC treating the said complaint as FIR. In due course investigation was started and the I.O after completion of investigation submitted chargesheet against the present petitioner including others under sections 406, 467, 468, 420 and 120B IPC and thereupon the learned Magistrate took cognizance of the offence and he issued warrant of arrest against the present petitioner including others. It is alleged in the complaint that opposite party No. 2 (complainant) between 1990 and 1991 started dealership of ice-cream in the Sub-Division of Asansol and its adjacent areas under an agreement with the Kwality Ice-Cream India Pvt. Ltd. and during continuance of such business in the year 1995 the business of Kwality Ice-Cream India Pvt. Ltd. was taken over by Brooke Bond Lipton India Ltd., a sister concern of Hindustan Lever Ltd., Calcutta and as a result, the security deposit of Kwality Ice-Cream India Pvt. Ltd. was transferred to Brooke Bond Lipton India Ltd. and opposite party No. 2 continued this business under Brooke Bond Lipton India Ltd. till the end of the year 1998. Thereafter the Regional Commercial Manager of Hindustan Lever Ltd. issued a letter on 6.2.1998 and appointed Bengal Agency run by the proprietor opposite party No. 2 as the authorized distributor of ice-cream in the District of Burdwan, Purulia, Bankura and Birbhum. Thereafter by the end of 1998 petitioner was called at the office of Brooke Bond Lipton India Limited and Hindustan Lever Ltd. and advised by them to invest substantial fund for development of infrastructure so that he could earn huge profit. The petitioner opposite party No. 2 being convinced initially invested Rs. 10 lacs and thereafter invested another Rs. 15 lacs by borrowing from Bank for development of the said business. Unfortunately the business run by him suffered loss and in the meantime the discount allowed to him was curtailed from 15 per cent to 10 per cent. Since the business of the opposite party No. 2 ran at loss, he approached the accused persons for rectification of its road map, plan etc. for development of his business earning the profit. But opposite party No. 2 was asked to continue the business till any further approval was obtained from the Head Office of the H.L.L However, in spite of continuing the business the opposite party No. 2 suffered huge loss as the Hindustan Lever Ltd. did not settle the dues or credit notes of opposite party No. 2 and return the security deposit amount of Rs. 15 thousand. The opposite party No. 2 (complainant) on several occasions moved the company for taking immediate steps but, suddenly distributorship of the opposite party No. 2 was cancelled unilaterally and it was given to Khaitan Agency of Asansol. The accused persons named in the complaint persuaded the opposite party No. 2 (complainant) to continue with its distributorship making false promises which at that point of time they had no intention to honour and thereby they had committed breach of trust. That apart, agreement entered into by opposite party No. 2 (complainant) with the accused persons was never made over to him. On the contrary various terms were incorporated in such agreement in handwriting in the year 2001 by tampering the same with an ulterior motive to evade their responsibility of making payments to opposite party No. 2 (complainant) [agreement Annexure H]. So prayer was made in the said complaint for prosecuting the accused persons under sections 406, 467, 468, 420 and 120B of the IPC.

3. The I.O after completion of the investigation on the basis of this complaint filed by opposite party No. 2 submitted a chargesheet against the present petitioner including others stating that the complainant invested Rs. 25 lacs for the business of distributorship of Kwality Ice-Cream but, the Hindustan Lever Ltd. did not pay the profit assured to the complainant in spite of several reminders. On the contrary the distributorship was given to Khaitan of Asansol without any notice to him and as a result complainant (opposite party No. 2) suffered a loss of Rs. 15 lacs.

4. Learned Advocate Mr. Ghosh appearing on behalf of the petitioner drawing my attention to the complainant lodged by opposite party No. 2 as also C.S filed in the case submits that in chargesheet nothing has been said about forgery and document of forgery was not seized by the police. According to him Annexure ‘H’ is non est and therefore, the question of tampering with the said document by making alterations or interpolations does not arise and in fact the present petitioner is in no way connected with the said offences under sections 467 and 468 and there is even no whisper against the petitioner in this regard in the complaint or in the C.S

5. Mr. Ghosh submits that with regard to the offence of cheating under section 420 of IPC there is no whisper in the complaint that the present petitioner made false representations to the complainant (opposite party No. 2) for the purpose of deceiving him. According to him the C.S does not speak of what role was played by the petitioner with regard to the offence of cheating. On the contrary the C.S discloses element of breach of contract for which the complainant (opposite party No. 2) suffered loss and for that petitioner, a Chairman of the company, cannot be held responsible. He further submitted that the complainant (opposite party No. 2) invested money for running his own business and he ultimately suffered loss although under an agreement he made security deposit after observing necessary formalities the breach of which gives rise to civil suit and such breach of contract in absence of mens rea from the very inception cannot be said to be an offence of cheating. It is further submitted by Mr. Ghosh that in the chargesheet there is no allegation that a promise not kept was a promise that resulted from initial deception. According to him there is practically no whisper against the present petitioner that he had committed any breach of trust not to speak of anything about criminal conspiracy as enumerated in section 120B of IPC. It is also submitted that there is no ingredient to implicate the present petitioner with the offence under section 406 of IPC since there is nothing in the complaint that the petitioner was ever entrusted with any property belonging to the complainant (opposite party No. 2) and in due course the petitioner misappropriated the same. Save and except general bald allegation, there is no specific complaint against the present petitioner. Mere omnibus statement alleging offences under sections 406, 467, 468, 420 and 120B in absence of specific allegation cannot create any liability implicating the petitioner as offender. It is further submitted by Mr. Ghosh that the petitioner is the Chairman of H.L.L but at the relevant point of time he was not the Chairman of the company. That apart under the Penal Law, there is no concept of vicarious liability unless the said statute covers the same within its ambit.

6. Mr. Ghosh clarified in his argument that three civil suits bearing T.S No. 1969 of 2001, renumbered as E.O.S 6 of 2003, C.S No. 9 of 2002 and C.S No. 10 of 2002 are pending between the complainant (opposite party No. 2) and Hindustan Lever Limited before this Hon'ble Court in respect of the subject-matter arising out of business transaction between the parties. Moreover opposite party No. 2 in discharge of his liabilities in connection with the business transaction issued two cheques in favour of Hindustan Lever Ltd. but, those cheques were dishonoured and as a result Hindustan Lever Ltd. instituted two cases under section 138 of N.I Act against opposite party No. 2 (complainant) which are pending before the Metropolitan Magistrate Court, Calcutta.

7. According to him, the complainant opposite party No. 2 in order to put a pressure upon Hindustan Lever Ltd. hoisted a criminal case against the present petitioner including others for settlement of civil dispute in his favour and thus, the civil dispute has been given a cloak of criminal offence by the (complainant) opposite party No. 2. Criminal proceedings are a short cut of other remedies available in law. Therefore, before issuing process, a Criminal Court has to exercise a great deal of caution. It is further submitted by Mr. Ghosh that a judicial forum of Court should not be allowed to be utilized for any motive to wreck vengeance in the hands frustrated or vindictive litigants.

8. Mr. Ghosh further submitted that a purely civil dispute has been brought to Criminal Court by the complainant opposite party No. 2 against the present petitioner including others and neither the complainant nor the chargesheet discloses any prima facie material to show that the present petitioner had committed offences under sections 406,467,468,420 and 120B of IPC. Therefore, taking of cognizance and issuance of process against the present petitioner by the learned SDJM, Burdwan should be held illegal and this Court should quash the proceeding against the present petitioner under section 482 of Cr. PC because continuation of the proceeding against the petitioner would be sheer abuse of the process of Court. Learned Advocate Mr. Ghosh in support of his contention relied upon the following decisions:

1. S.W Palanitkar v. State of Bihar, reported in 2002 (1) SCC 241.

2. Hriday Ranjan Prasad Varma v. State of Bihar, reported in 2000 (4) SCC 168.

3. Trilok Singh v. Satya Deo Tripathi, reported in AIR 1979 SC 850.

4. Charanjit Singh Chadha v. Sudhir Mehra, reported in 2001 (7) SCC 417.

5. Pepsi Food Ltd. v. Special Judicial Magistrate, reported in JT 1997 (8) SC 705.

6. Ashok Chaturuedi v. Shitul H. Chanchani, reported in 1998 (7) SCC 698.

7. S.G Sagar Suri v. State of U.P, reported in 2000 (2) SCC 636.

8. State of Karnataka v. L. Muniswamy, reported in 1977 (2) SCC 699.

9. Sharada Prasad Sinha v. State of Bihar, reported in 1977 (1) SCC 505.

10. Madhabrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, reported in 1988 (1) SCC 692.

11. Ajoy Misra v. State of M.P, reported in JT 2003 (1) SC 418.

2. U. Dhar v. State of Jharkhand, reported in JT 2003 (1) SC 172.

13. Hiralal Harilal Bhagwati v. CBI, New Delhi, reported in 2003 (5) SCC 257.

9. Learned Counsel Mr. D. Roy appearing on behalf of opposite party No. 2 submitted before me that since C.S has been submitted after completion of investigation on the basis of the complaint lodged by the complainant, there is hardly any scope to quash the proceedings under section 482 of Cr. PC by calling for the C.D According to him petitioner should come with a specific case which is wanting in this case and as such, attention should be confined to FIR. Mr. Roy further contended that the complainant was given a rosy picture to earn huge profit by investing substantial amount of money by the accused persons and the complainant having fallen upon such trap invested Rs. 25 lacs for running distributorship business of Kwality Ice-Cream but, ultimately, he suffered loss of Rs. 13 lacs. It is indicated that H.L.L called the complainant and gave a rosy picture and they prepared road map, plans and formulated guidelines with dishonest intention from initial stage and, therefore, there are sufficient materials to constitute offences under sections 420, 406, 467, 468 and 120B of IPC. According to him the FIR itself substantially makes out offences referred to above and the petitioner could have agitated all the points taken in this application at the time of consideration of charge before the Trial Court. According to him the decisions cited by the learned Advocate of the petitioner in this case are not applicable and the Distributorship earlier given to the opposite party No. 2 (complainant) was cancelled with dishonest intention without giving any notice to him, which was preceded by reduction of commission. It is, therefore, submitted by the learned Advocate Mr. Roy that considering the facts and circumstances, the application filed by the petitioner praying for quashing the proceedings under section 482 of Cr. PC should be dismissed, as it has no merit.

10. Learned Advocate Mr. Roy further submitted that when chargesheet has been submitted in this case this Court should not usurp the jurisdiction of Trial Court by exercising its power under section 482 of Cr. PC. According to him face value of the chargesheet should be accepted without raising any question because the petitioner will get ample opportunity to canvass his grievance before the Trial Court at the time of consideration of charge. Learned Advocate Mr. Roy in support of his contention has relied upon the following decisions:

1. AIR 2001 SC page 3253, S.M Dutta v. State of Gujarat.

2. 2001 (4) All India Criminal Law Reporter SC page 675, Kamaladevi Agarwal v. State of West Bengal.

3. 2002 (8) SCC page 236, Rajlakshmi Mills v. Shakti Bhakoo.

4. 2004 SCC (Criminal) page 353, State of M.P v. Awadh Kishore Gupta.

5. 1993 (3) SCC page 54, Radhey Shyam Khemka v. State of Bihar.

Nand Kishore Tulsian v. State of Bihar.

6. 1995 SCC (Criminal) page 60, Suresh Chandra Bahri v. State of Bihar

Gurbachan Singh v. State of Bihar.

Rajpal Sharma v. State of Bihar.

7. 2000 SCC (Criminal) page 1008, Hardeo Singh v. State of Bihar.

8. 1981 SCC (Criminal) page 477, Mohammad Usman Mohammad Hussain Mariyar v. State of Maharashtra.

11. Mr. S.S Roy, learned Counsel for State (opposite party No. 1) in course of his argument submitted that on the basis of complaint lodged by opposite party No. 2 the case was started by police and the I.O after completion of investigation submitted a chargesheet against the present petitioner including others with a view to prosecuting them under sections 467, 468, 406, 420 and 120B of IPC. It is also submitted by him that in spite of existence of civil suits between the parties there is no bar to proceed with a criminal case against the petitioner including others. He, therefore, submits in the circumstances this Court should not quash the proceeding as prayed by the petitioner by invoking its inherent power under section 482 of Cr. PC.

12. In disposing of an application under section 482 of Cr. PC Court should keep in its mind the guidelines given by the Apex Court in Bhajanlal's case. In State of Haryana v. Bhajanlal, in 1992 Supp (1) SCC 335, the Apex Court observed that this power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down in the precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and give an exhaustive list to myriad kinds of cases wherein such power should be exercised.

13. The decisions cited by the learned Advocates of both parties give us an idea about negative as well as positive application of inherent power of Court under section 482 of Cr. PC depending upon facts and circumstances of each case. The parties who are at draggers drawn came to be acquainted on the basis of contractual rights and obligations. A plain reading of the complaint does not disclose ingredients of offences of criminal conspiracy, criminal breach of trust and cheating alleged to have been committed by the petitioner. The complaint also does not disclose what role was played by the petitioner with regard to offence of forgery of valuable security for the purpose of cheating. The chargesheet submitted in this case pursuant to an investigation in connection with the complaint lodged by the complainant (opposite party No. 2) does not disclose that the alleged forged document (Annexure H) was seized by the police. On the other hand the report submitted in the chargesheet by the I.O discloses that the complainant invested Rs. 25 lacs for the purpose of distribution of Kwality Ice-Cream but Hindustan Lever Ltd. did not pay the profit assured to the complainant in spite of several reminders. On the contrary the distributorship was given to Mrs. Khaitan of Asansol without any notice to complainant (opposite party No. 2) and as a result the complainant (opposite party No. 2) suffered a loss of Rs. 15 lacs. The chargesheet discloses contractual obligation and breach thereof for which remedy is available in Civil Court. There is no prima facie material to show that the present petitioner committed offences under sections 406, 467, 468, 420 and 120B of IPC. The nexus between offences committed and the offender is found absent in the chargesheet. The concept of vicarious liability is also not found under the Indian Penal Code. In the circumstances, I find that the continuation of criminal proceeding pending against the present petitioner will be sheer abuse of the process of Court. Therefore, I find sufficient material to invoke the inherent power under section 482 of Cr. PC so as to quash the proceeding.

14. As such the application under section 482 of Cr. PC filed by the petitioner is allowed.

15. The criminal proceeding pending against the petitioner in connection with G.R Case No. 1301 of 2002 before SDJM, Burdwan arising out of Burdwan (Sadar) P.S Case No. 570 of 2002 dated 11.11.2002 under sections 406, 467, 468, 420 and 120B is hereby quashed.

16. Urgent xerox certified copy of this order be given to the parties immediately, if applied for.

Application allowed.

B.D