Dr Abhijit Sen & Ors. vs State of West Bengal

C. R. R. 461/2014 is against the order dated 9th January, 2014 passed by the learned Metropolitan Magistrate, 13th Court, Calcutta in Case No. C/16155 of 2008 rejecting the petition dated 5th July, 2013 filed by the present Petitioners.

C. R. R. 118/ 2007 is against the order dated 20th December, 2006 passed by the learned Chief Judge, City Sessions Court, Calcutta in C. R. Revision Case No. 207/2006 affirming the order dated 1st November, 2006 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta, in connection with Case No. C/2545/2000. Both the cases have been heard analogously.

Facts common in both the Revisional Cases, may be briefly summarised, as follows:-

Dr Abhijit Sen and his wife Ms Shipra Sen, Petitioners in both the cases, are the Directors of ''Alliance Management and Fiscal Services Limited,'' a company, registered under the Companies Act, 1956 and the Petitioners No. 3 to 5 in C. R. R. 461/2014 are the employees of the aforesaid company. Mr Sibendu Basu, the Opposite Party No. 2 in both the cases is an Advocate as well as an investment consultant and he worked with the Petitioners at one point of time. In course of different business transactions, disputes cropped up between the parties resulting in initiation of several cases by the parties against each other. Most of those cases were under Section 138 of the Negotiable Instruments Act. Meanwhile, some cases were filed by the parties in this High Court also. One such case in this High Court was C. S. No. 105/2003. In that case parties entered into agreements to settle all their pending disputes and cases, amicably and on the basis of such agreements of the parties an order was passed by the High Court on 30th March, 2004, in case No. C. S. No. 105/2003 with C. C. No. 163 of 2003 (G. A. No. 22 of 2004, G. A. No. 3931 of 2003 and G. A. No. 1209 of 2003), directing the Petitioners to make payments to the Opposite Party No. 2 herein, according to the payment schedule fixed in the order. It was also recorded in the order that the parties agreed to withdraw all their pending cases/proceedings in any Court in India against each other. The said order dated 30th March, 2004 was subsequently modified by an order dated 28th June, 2004 and 25th February, 2005. Subsequently another order was passed by this High Court on 7th July, 2005 in C. C. No. 79/2005. Thereafter an Execution Case being E. C. No. 49/2009 filed by the present Petitioner Dr Abhijit Sen, was also decided by the order dated 20th January, 2012 by this High Court. It has been alleged by the Petitioners that in spite of such settlement recorded in the orders of the High Court, the Opposite Party No. 2 Mr Basu did not withdraw two cases initiated by him against the Petitioners herein, one being Case No C/16155/2008 pending in the Court of learned Metropolitan Magistrate 13th Court, Calcutta, and the other being Case No. C/2545/2000 pending in the Court of learned Metropolitan Magistrate, 5th Court, Calcutta. The Petitioners in the present Revisional Cases have prayed for quashing of the proceeding in both the aforesaid two cases on the aforesaid grounds.

In re.- C. R. R. 461/20014:-

In this Revisional Application what happened, was that Mr Basu, O. P. No. 2 herein filed a complaint in the Court of Chief Metropolitan Magistrate, Calcutta on 17th May, 2005 against the Petitioners herein and alleged thereby forgery and fraud upon him by the Petitioners herein in connection with some cheques allegedly issued in his favour by the Petitioners and prayed for Police investigation of the offences, under Section 156 (3) Cr. P. C. The said complaint was referred to Hare Street Police Station for investigation and a specific case being Hare Street P. S. Case No. 313, dated 20.01.2005 was registered against the present Petitioners under Section 120 B/420/467/468/471 of the Indian Penal Code. After investigation Police submitted final report under Section 173 Cr. P. C. and thereby closed the investigation on the ground that the dispute between the parties was a civil dispute in nature and already settled by the parties in the High Court. The Opposite Party No. 2 raised objection against such closure report of the Investigating Agency. But after hearing the Public Prosecutor and the learned Advocate for the present O. P. No. 2, the Court by the order dated 28th May, 2008 turned down the objection raised by the present O. P. No. 2 and accepted, the final report thus submitted by the Investigating Officer. Thereafter the present O. P. No. 2 again filed a complaint on 13th June, 2008, as a petition of protest (naraji petition) and prayed for proceeding with the case as a complaint case under Section 200 Cr. P. C. The said prayer was allowed, cognizance was taken and appropriate process was issued upon the present Petitioners for the offences under Section 416/467/468/471/477/120 B of Indian Penal Code and the case was transferred to the Court of learned Metropolitan Magistrate, 13th Court, Calcutta. The case was numbered as C/16155/2008. The Petitioners herein challenged the maintainability of the case by petition dated 5th July, 2013 in the aforesaid Court on the ground, that the dispute between the parties had been earlier settled in this High Court in C. S. No. 105/2003 and according to the terms of that settlement the present O. P. No. 2 was legally bound to withdraw/not to proceed with the case. However, after hearing the parties, the Trial Court rejected such petition of the Petitioners herein, by order dated 9th January, 2014. The C. R. R. 461/2014 is against the aforesaid order passed by the learned Metropolitan Magistrate, 13th Court, Calcutta.

Learned Advocate, Mr Goswami appearing for the Petitioners has submitted that the settlement arrived between the parties in the High Court in Case No. C. S. 105/2003 and other cases includes the claim of the present O. P. No. 2 in this case and as such the O. P. No. 2 is legally bound to withdraw the case in terms of the settlement. He has further submitted that after the prayer of the present O. P. No. 2 for rejection of the final report was turned down, the only course that was open for him was to move the higher Court against the order of the acceptance of the final report in the case. But as the O. P. No. 2 did not do so, he was not legally entitled to file the protest petition praying for treating it as a complaint under Section 200 Cr. P. C.

The next contention of Mr Goswami was that the protest petition treated as a regular complaint was, in fact, a second complaint on the same sets of facts which is not permissible in law. He has cited two decisions on the point, one reported in 1962 AIR 876 (Pramatha Nath Taluqdar - versus - Saroj Ranjan Sarkar) and the other reported in (2001) 6 SCC 181 ( T. T. Antony - versus - State of Kerala and Others).

In reply, learned Advocate Mr Bhattacharjee appearing for the O.P. No. 2 submitted that the complaint in the present case under Section 200 Cr. P. C. was filed on 13th June, 2008, i. e., long after the settlement between the parties was recorded by the High Court in different orders and it was never a term of the settlement that none of the parties will file any case against the other in future and as such the claim of the O.P. No. 2 in the present case was not a subject matter of the agreement between the parties.

Mr Bhattacharjee further submitted that after the settlement of the disputes between the parties was recorded by the High Court it was discovered by the O. P. No. 2 from some information collected from the Income Tax Department that the Petitioners issued 12 bearer cheques in the name of the O. P. No. 2 which were all fraudulently encased by the present O. P. No. 4 and 5, the employees of the Petitioner/Company under the instruction of the Petitioner No. 1 and 2 and other 13 cheques were issued by the Petitioner No. 1 and 2 in the names of some fictitious persons who were unknown to the O. P. No. 2 and all those payments were falsely shown as payment to the Opposite Party No. 2 in the Income Tax Return by the Petitioner/Company and thus the Opposite Party No. 2 was cheated and defrauded by the present Petitioners. Mr Bhattacharjee further submitted that such fraudulent and mischievous act of the Petitioners was never a subject matter of settlement between the parties before the High Court and having failed in the contempt and execution case in the High Court, the Petitioners moved the Trial Court for the same relief.

Mr Bhattacharjee has submitted further that the complaint in the case No. C/16155/2008 was not a second complaint in connection with the same offence. He further argued on the point that a Magistrate has the power to take cognizance of an offence on a complaint or a protest Petition on similar allegations even after accepting a final report by the Police under Section 173 Cr. P. C. He has cited the following decisions on the point. 1. (1982) 3 SCC 510 (Gopal Vijay Verma - versus - Bhuneshwar Prasad Sinha and Others). (2) (2014) 13 SCC 699 (B. Chandrika - versus Santhosh and Another) and (2014) 13 SCC 133 (Rakesh and Another - versus - State of Uttar Pradesh and Another).

The first order recording the settlement between the parties was passed on 30th March, 2004 by the High Court in connection with C. S. No. 105/2003 with C. C. No. 163 of 2003 (G. A. No. 22 of 2004, G. A. No. 3931 of 2003 and G. A. No. 1209 of 2003). The said order was modified to some extent, subsequently on 28th June, 2004 and thereafter on 25th February, 2005. But the complainant in the present Revisional Application was filed by the O. P. No. 2 on 11th May, 2005 which was referred to the Hare Street Police Station under Section 156 (3) Cr. P. C. So, the aforesaid complaint was filed after the orders passed by the High Court mentioned earlier. So, the facts alleged in the said complaint could not be the issues for consideration while the orders recording the settlement between the parties were passed by the High Court.

The complaint by the O. P. No. 2 was filed alleging the offences under Section 120 B/420/ 467/ 468/ 471 I. P. C. There is no reflection in any of the orders of the High Court that the allegations of those offences had been amicably settled by the parties.

An order was passed by the High Court in C. C. No. 79/2005 wherein it was stated that, if any case or cases were not withdrawn by any of the parties as per the order passed on 28th June, 2004 and 25th February, 2005 such a case should be withdrawn within a period of one month. As mentioned above the complaint case in question was not in contemplation when the order dated 28th June, 2004 or 25th February, 2005 was passed by the High Court. It cannot be, therefore, said that the O. P. No. 2 was legally bound to withdraw the complaint or not to proceed with the complaint in question, in view of the orders passed by the High Court.

For the implementation of the orders dated 30th March, 2004, 28th June, 2004 and 25th February, 2005, E. C. No. 49/2009 and C. A No. 1725/2009 were filed by the present Petitioners. The said case was decided on 20th January, 2012. In the aforesaid Execution Case, the question of withdrawal of the complaint in C/16155/2008 was agitated. But the High Court refused to interfere with the proceeding in the aforesaid case.

From the foregoing discussion it is clear that the Opposite Party No. 2 herein was never under any legal obligation to withdraw the complaint case being No. C/16155/2008 now pending in the Court of Metropolitan Magistrate, 13th Court, Calcutta.

Next comes the question, whether a Magistrate has the jurisdiction to take cognizance on a complaint under Section 200 Cr. P. C. and issue process under Section 204 Cr. P. C. after acceptance of a final report submitted by the Investigating Officer in connection with a Police case initiated earlier, on the same set of facts.

In T. T. Antony''s case (supra) two different F. I. Rs. were filed on different dates on same facts, on the basis of which separate cases were registered by the Police. In such situation the Hon''ble Apex Court held that there cannot be initiation of two separate cases on same allegations. There is no such situation in the present case. Similarly the facts and circumstances in the Pramatha Nath Taluqdar''s case (supra) are entirely different from the facts and circumstances in the present case. So, none of those two cases is of any help to the Petitioners.

In the present case, the O. P. No. 2 submitted a complaint in the Court of the learned Chief Metropolitan Magistrate against the Petitioners herein alleging commission of offences under Section 120 B/420/ 467/ 468/ 471 I. P. C. and prayed for investigation of the case by the Police under Section 156 (3) Cr. P. C. Such prayer was allowed and a specific case was registered at Hare Street Police Station being Case No. 313, dated 20th January, 2005 and numbered as G. R. Case No. 1655/2005 in the Court. After investigation Police submitted a final report praying for the closure of investigation on the ground that the dispute was a civil dispute in nature which was amicably settled between the parties earlier in the High Court. The complainant, i. e., present O. P. No. 2 raised objection against such prayer of the I. O. and after hearing the parties learned Chief Metropolitan Magistrate, Calcutta rejected the objection of the O. P. No. 2 and accepted the closure report by the I. O. Subsequently the O. P. No. 2 filed a protest petition and prayed for treating the Petition as a complaint under Section 200 Cr. P. C. and issuance of process under Section 204 Cr. P. C. for committing the offences under Section 120 B/ 419/ 420/ 467/ 468/ 471/ 477 I. P. C. The said prayer was allowed and the complaint was registered as C. Case No. 16155/2005 by the Court and process was issued upon the accused persons in the complaint, i. e., the present Petitioners.

Thereafter, the present Petitioners filed a Petition in the Court of the learned 13th Metropolitan Magistrate, Calcutta and thereby prayed for dismissal of the complaint case which was rejected by the Court and the case was fixed for evidence before charge.

From the sequence of the events described above it is clear that the complaint by the present O. P. No. 2, subsequent to the acceptance of the closure report earlier, is not a second complaint but it is the continuation of the process started on the first complaint submitted under Section 156 (3) Cr. P. C.

In Gopal Vijay Verma''s case (supra) it has been clearly held by the Hon''ble Apex Court that the Magistrate can take cognizance on the basis of a complaint even after refusal to take cognizance of the case on a Police report. In the Rakesh and Another''s case (supra) and also in B. Chandrika''s case (supra) the view expressed in Gopal Vijay Verma''s case (supra) was followed and in both those cases it had been reiterated that the Magistrate after accepting a closure report by the Police can take cognizance under Section 190 (1) (a) Cr. P. C. on the basis of a protest Petition filed by the complainant and proceed under Section 200 and 204 Cr. P. C. So, the law is now clear that the Magistrate has the power to take cognizance and proceed further on the protest Petition filed by the complainant after submission of a final report earlier by the Police in the same case. So, nothing illegality or wrong is found in the order dated 9th January, 2014 passed by the learned Metropolitan Magistrate, 13th Court, Calcutta, in Case No. C- 16155/2008. So, there is no merit in the Revisional Case being C. R. R. No. 461/2014.

In Re C. R. R. 118 of 2007:-

This Revisional Application is against the order dated 20th December, 2006 passed by the learned Chief Sessions Judge, Calcutta in Crl. Revision No. 207/2006 affirming the order dated 1st November, 2006 passed by the Metropolitan Magistrate, 5th Court, Calcutta in case No. C-2545/2000.

As narrated in the beginning of the order, at the relevant point of time there were several cases pending between the parties filed against each other. Subsequently in a Suit in this High Court being C. S. No. 105/2003 with C. C. No. 163/2003 (G. A. No. 22/2004, C. A. No. 3931/2003, G. A. No. 1209/2003), the parties entered into a settlement. The terms and conditions of the said settlement were recorded in the order dated 30th March, 2004 by the High Court. Subsequently the said order was modified to some extent by the order dated 28th June, 2004 and 25th February, 2005. In that settlement, both the parties agreed to withdraw all the pending cases filed by them against each other. As per the terms of the settlement some payments were made by the Petitioners to the present O. P. No. 2 and most of the pending cases in different Courts were withdrawn by the parties. Complaint case being No. C/ 2545/2000 was a case filed by the present O. P. No. 2 under Section 138/141 of the Negotiable Instruments Act against the Petitioners herein. The aforesaid case was not withdrawn by the present O. P. No. 2 and hence it was being proceeded in due course, in the Court of 5th Metropolitan Magistrate, Calcutta. In such situation the Petitioners herein filed applications in that Court and prayed for their discharge from the case on the ground that the disputes had been settled and in terms of the orders passed by the High Court, the continuation of the proceeding was not maintainable in law.

After hearing both the parties, the learned Magistrate rejected the prayers of the Petitioners herein, on the ground, inter alia, that the High Court never directed to drop the proceeding. The order of such rejection was passed on 1st November, 2006 and against the order the Petitioners filed a Revisional Application numbered as Crl.- 207/2006 in the Court of the learned Chief Judge, City Sessions Court, Calcutta, and the said Revisional Case was also dismissed on 20th December, 2006. Being aggrieved by such orders passed by the Courts below, the Petitioners have filed the present Revisional Application under Section 482 read with Section 401 Cr. P. C.

Learned Advocate Mr Goswami appearing for the Petitioners, submitted that in the order dated 30th March, 2004 passed by the High Court, liberty was given to the present O. P. No. 2 for Execution of the order as a decree of the Court and it was the further direction of the High Court that the parties would withdraw the respective cases filed by them against each other. So, after passing of such orders the present O. P. No. 2 was not legally entitled to proceed with the separate complaint case being C/ 2545/2000.

Mr Goswami has further submitted that although the order dated 30th March, 2004 was subsequently modified to some extents but the direction to withdraw the cases has remained unchanged and by the order dated 7th July, 2005 in C. S. No. 79/2005 the High Court once again directed the present O. P. No. 2 to withdraw his case within a stipulated period which was not complied also. So, according to Mr Goswami the continuation of the proceeding in Case No. C/2545/2006 amounts to violation of the High Court''s order and hence the Trial Court as well as the first Revisional Court committed error in law by not discharging the Petitioners herein as prayed for.

In reply, learned Advocate Mr Bhattacharjee submitted that the High Court never directed the Trial Court to drop the proceeding. It was his further submission that the Petitioners herein themselves did not make the full payments in terms of the settlement causing thereby huge financial loses to the present O. P. No. 2 and hence O. P. No. 2 had no other option but to continue his case for realisation of his dues from the Petitioners herein, which was to the tune of Rs. 21,17,500.00 (rupees twenty-one lack seventeen-thousand and five-hundred only) arising due to bouncing of cheques issued in his favour by the Petitioners. So, the present O. P. No. 2 refused to withdraw the case as it was the option of the O. P. No. 2 to continue or discontinue his case and hence there was no illegality or irregularity in the orders passed by the Courts below, impugned in this Revisional Case.

Admittedly there were several cases pending between the parties filed against each other. From the order of the High Court passed on 30th March, 2004 in C. C. No. 163/2003 and C. S. No. 105/2003 (G. A. No. 22/2004, G. A. No. 3931/2003 and G. A. No. 1209/2003), it is found that the parties entered into a settlement of the disputes amicably. By the said order all the cases between the parties before the High Court were disposed of with direction to the Petitioners herein to make payments according to the schedule framed in the order. It is also recorded in that order that the parties agreed to withdraw all cases Civil and Criminal filed against each other and pending before any other Court in the country within a stipulated period. The said order was subsequently modified to some extent on 28th June, 2004 in connection with the payment of interest. The other portion of the order remained unchanged and both the parties agreed to withdraw cases filed by them. The order was again modified on 25th February, 2005 to rectify some mistakes. Thereafter a contempt case being C. C. No. 79/2005 was filed by the Petitioners herein, alleging that the present O. P. No. 2 had not withdrawn the Criminal cases filed by him in terms of the settlement between them. The said contempt application was disposed of on 7th July, 2005 with the following order: "The only grievance in this application is that the alleged contemnors have failed to withdraw the criminal cases as per order already passed by the Court on 28th June, 2004 and 25th February, 2005. If such steps had not been taken by the alleged contemnors he will take steps in the matter within a period of one month. In case of his failure the petitioner shall be at liberty to place facts before the said Court on the basis of the order so passed by this Court earlier and the Court shall take necessary steps in the matter accordingly."

So, in the order dated 7th July, 2005 the High Court did not direct the Trial Court to drop the case against the Petitioners. However, the High Court had given the Petitioners the liberty to agitate the matter before the Trial Court and directed the Trial Court to consider the facts placed before it according to law.

The Petitioners prayed before the Trial Court to drop the proceeding in case No. C/2545/2000 on the ground that the complainant in that case, i. e., the present O. P. No. 2 did not comply with the orders of the High Court. After hearing both the parties the Trial Court dismissed such prayer of the Petitioners on 1st November, 2006 on the ground that the accused persons in the case, i. e., the Petitioners herein did not clear the dues of the complainant, i. e., the present O. P. No. 2 and there was no specific direction in any of the orders of the High Court to drop the proceeding. The aforesaid order of the Trial Court was affirmed in Criminal Revision No. 207/2006 by the learned Chief Judge, City Sessions Court, Calcutta. Both those orders have been challenged in the present Revisional Case.

As discussed above, the High Court never directed the Trial Court to drop the proceeding in C. Case No. 2545/2000. On the contrary, the High Court by the order on 7th July, 2005 in C. C. No. 79/2005 allowed the liberty to the Petitioners herein to agitate the facts before the Trial Court and directed the Trial Court to take note of those facts. So, the Trial Court committed no error in law by proceeding with the case and fixing the case for recording the plea of the accused persons.

On perusal of the order dated 15.05.2008, 18.12.2007, 26.09.2007 and 15.02.2007 passed in this Revisional case, it is found that the claims of the present O. P. No. 2 were not finally settled amicably by the parties earlier and even if there was any final settlement the parties did not discharge their liabilities fully, in terms of their compromise. From the aforesaid orders it is further found that the parties continued the negotiation and the Petitioners herein made payments to satisfy the claims of the present O. P. No. 2 even during the pendency of the present Revisional Petitions. In a Criminal case an accused is not exonerated from the offence, if any, committed by him by satisfying the claim of the complainant during the pendency of the case unless the offence alleged is compounded according to law. Needless to mention that there was never any prayer before the Trial Court for compounding the offence.

Since negotiation for settlement of the claims of the present O. P. No. 2 is still going on as mentioned above the present O. P. No. 2 would be placed into a disadvantageous position if the proceeding in C. Case No. C-2545/2000 is quashed at this stage. In fact, a Criminal Proceeding involving financial liability cannot be quashed on any ground pleaded on behalf of the Petitioners herein.

Having thus regard to the facts and circumstances of the case, I find no illegality or gross irregularity either in the order dated 1st November, 2006 passed in Case No. C/2545/2000 by the learned Metropolitan Magistrate, 5th Court, Calcutta or in the order dated 20th December, 2006 passed by the learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No. 207/2006 affirming the aforesaid order of the Trial Court. The present Revisional Application is, therefore, liable to be also dismissed.

In view of the decisions taken above, C.R.R. 461/2004 and C.R.R. 118/2007 are both hereby dismissed on contest without any order as to costs. Learned Metropolitan Magistrate, 13th Court, Calcutta is directed to proceed further and dispose of the case No. C/16155/2008 pending in the Court as expeditiously as possible and learned Metropolitan Magistrate, 5th Court, Calcutta is also directed to proceed further and dispose of the case No. C/2545/2000 pending in the Court as expeditiously as possible. Office to send the copy of the order at once to the Trial Courts mentioned above. C.R.A.N. 4403 of 2015

And

C.R.A.N. 4404 of 2015

In view of the final disposal of the Revisional Applications, C.R.A.N. 4403 of 2015 and C.R.A.N. 4404 of 2015 are both dismissed.

Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.