Sugeet Mukherjee & Anr vs State

Tirthankar Ghosh, J

The revisional application has been preferred for quashing the proceedings relating to G.R. Case No. 605 of 2003 pending before the learned Sub-Divisional Judicial Magistrate, Asansol, Burdwan arising out of Asansol (S) P.S. Case No. 115/2003 dated 23.07.2003 under Sections 406/420/120B of the Indian Penal Code.

The petitioner no.1 at the relevant period was employed with M/s. Philips India Limited as Assistant Manager, Sales and petitioner no.2 was employed as Consumer and Trade Marketing Officer of the same company. The prosecution case, in essence, is the grievance of the defacto complainant/opposite party no.2 who took out an application before the learned Additional Chief Judicial Magistrate, Asansol under Section 156(3) of the Code of Criminal Procedure. The allegations in the application under Section 156(3) of the Code of Criminal Procedure which are relevant for consideration of the present revisional application are as follows :

"2. That on 11.5.2002 your petitioner purchased a coloured television set of Philips Company from Reco Enterprise Durga market Girja more Asansol and after purchasing the same Mr. S.K.Choudhury Reco, enterprises accd no1 offered a whistle to blow to your petitioner and on quarry your petitioner came to know that it was an offer from the PHILIPS company "Ceetee Bajao world cup Jao". After blowing a small size balloon your petitioner found that World Cup Semi Final - Korea was printed the balloon and at the time of wining the same witness no.3 was also present there."

"29. That on 14.6.2002 accd. no.1 Sri S.K.Chowdhury rang up your petitioner at about 9 pm and asked him to talk to accd.no.4 Sri Subrata Mazumdar and accd.no.4 confirmed your petitioner that the income tax as regards the tour will be borne solely by PHILIPS INDIA LIMITED."

"30. That on 19.6.2002 your petitioner received the Korea Tour up date from PHILIPS INDIA LTD. by courier service and on 20.6.2002 accd.no.6 rang up your petitioner at his office and asked him to collect his passport, Visa and other papers from their Calcutta office on 22.6.2002 in the evening hours. Be it specifically mentioned here that when your petitioner again made a quarry with accd.no.6 that whether the tour is taxable and whether the tax has to be borne by your petitioner or not the accd.no. sent a reply along with a copy of their terms and conditions by fax at the office of your petitioner for the first time."

On the basis of the aforesaid application under Section 156(3) of the Code of Criminal Procedure being allowed, Asansol (S) P.S. Case No. 115/2003 dated 23.07.2003 under Sections 406/420/120B of the Indian Penal Code was registered for investigation and on conclusion of investigation, the investigating agency filed charge-sheet under the same sections against the petitioners and others.

Mr. Arijit Ganguly, learned advocate appearing for the State submitted that the prosecution by way of collecting evidence has prima facie established that a case has been made out and accordingly drew the attention of this Court to the statements of Debasis Chanda (defacto complainant), Santanu Dey, Sandip Pal and Chinmoy Bhattacharya.

Mr. Sourav Chatterjee, learned advocate appearing for the petitioners submits that it is an admitted position so far as the application under Section 156(3) of the Code of Criminal Procedure and the materials collected by the investigating agency are concerned that the opposite party no.2 was never allured to purchase the coloured television set of the company and the scheme which was existing referred to in paragraph 2 of the application under Section 156(3) of the Code of Criminal Procedure was subject to terms and conditions so required for a foreign travel.

I have perused the application under Section 156(3) of the Code of Criminal Procedure which is the basis of registration of first information report and the statement of chargesheeted witnesses namely, Debasis Chanda, Santanu Dey, Sandip Pal and Chinmoy Bhattacharya and I find that the grievance of the defacto complainant/opposite party no.2 is regarding the payment of income tax. According to the defacto complainant/opposite party no.2, as stated in paragraph no.29 that he was informed by one of the chargesheeted accused that the income tax would be borne out by the company while prior to his travel from Calcutta, he was informed that he has got to bear the tax. The allegations made by the defacto complainant/opposite party no.2 as also the materials collected by the investigating agency including the statements of the four witnesses do not reflect that either in their professional capacity or in their personal capacity, the present petitioners namely, Sugeet Mukherjee and Dipankar Chatterjee had ever made a representation which would have allured the defacto complainant/opposite party no.2 to purchase the television set with the commitment that the defacto complainant would be entitled to visit and watch the World Cup Semifinal at Korea. The statements under Section 161 of the Code of Criminal Procedure so recorded by the investigating officer of the case also do not reflect any dispute with regard to allurement being made for the purpose of purchase of the television set. It is only after wining the prize under the said scheme, the defacto complainant felt that he was allured as he was not aware of the terms and conditions of such scheme. It is settled principle of law that mere ignorance will not give rise to a cause of action. If a person is to visit a foreign country he has to comply with the requisite formalities for travel both of his mother country as well as of the foreign country. In view of the non-compliance of the requisite formality which led to the frustration of the defacto complainant/opposite party no.2 which is expressed in paragraph 33 of the application under Section 156(3) of Cr.P.C. that he collected his passport and cancelled his tour to Korea, no cause of action for initiation of a criminal case can arise.

From the materials collected by the investigating agency as well as the allegation initially made by the defacto complainant/opposite party no.2, I do not find that any case under Sections 406/420/120B of the Indian Penal Code being made out against the present petitioners. As such, further continuance of the proceeding against them would be abuse of the process of law which would cause miscarriage of justice. Thus all further proceedings relating to G.R. Case No. 605 of 2003 arising out of Asansol (S) P.S. Case No. 115/2003 dated 23.07.2003 presently pending before the concerned Magistrate at Asansol is hereby quashed.

Accordingly, C.R.R. 2703 of 2003 is allowed.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.