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Judgment
Amitabha Dutta, J.—This Re-visional application, is directed against an order dated 23.08.1979 passed by the learned Judicial Magistrate, 1st Court, Sealdah issuing summons under Sections 427 and 384 read with Section 511 of the Indian Penal Code against the petitioners who are officers of All India Reporter Limited, Congress Nagar, Nagpur in v Complaint Case No. 680 of 1979. The opposite party No. 1 filed a complaint against the petitioners before the learned Magistrate alleging, inter alia, as follows :--
The complainant is a shareholder of the All India Reporter Limited (hereinafter called the Company) since 1955 and is entitled to free supply of AIR Journal month by month free of cost and carriage, in lieu of dividends and other benefits and has received the same accordingly from 1955 onwards till'' February, 1978. In this process he has receiver all the monthly parts of A.I.R Journal tor the entire year 1978, The Index for each year is sent to those who nave received all the parts of a particular year free of cost. This is a vital and valuable appendix to the set of a year and is indispensable as the set cannot be bound, and conveniently handled without it. But the petitioners are intentionally refusing to supply the index for 1978 free of cost to the complainant and they are not entitled to bring about such a change in the situation of the AIR set for 1978 already supplied to the complainant which diminishes its valve or utility and affects it injuriously. Since the value of the set is more than Rs. 50|- the petitioners have committed an offence u/s 427. IPC. The accused wrote to the company for supply of the aforesaid index but in reply the company informed the complainant that his claim for supply of 1978 index would be satisfied, only on payment of Rs. 228|-. This arbitrary and whimsical demand for Rs. 228|- amounts to an attempt at extortion punishable u/s 384 read with Section 511 IPC. The complainant has refused to pay anything in his letter dated 13.8.79 to the company.
The learned Magistrate after taking congnizance of the alleged offences examined the complainant and his witness and passed the impugned order issuing process against the petitioners,
The substance of the petitioner, case appearing from their affidavit-in-opposition and annexure ''1'' to ''7'' thereto, being the copies of correspondence between the parties is that the complainant opposite party No. 1 is not entitled'' to free supply of AIR Journal month by month free of cost and carriage in lieu of dividends and other benefits as a shareholder as alleged in the complainant. A few years before 1955 the company had issued Non-cumulative Preference Shares of the face value of Rs. 100|- each under Article 44 of the Company''s Memorandum of, Association. The company would receive from these preference shareholders an amount by way of advance beyond the sura actually called up and the company would pay or allow interest on such advance at the rate as the members paying such advance and the Directors agreed upon. In the year 1955 the members purchasing 12 such preference shares and paying as advance call deposit of Rs. 1140|-. (Rs. 95- per share) were entitled to (i) cash interest at 6% perineum on this depositor (II) the monthly AIR Journal then priced at Rs 9/- per month in lieu of interest on the deposit or (iii) any other publications of the company valued at Rs. 108/- in lieu of interest on the deposit. In February. 1955 the defendant purchased 12 non-cumulative preference shares and against those shares paid an amount of Rs. 5/- per share as application money (total Rs 60/-) and an amount of Rs. 1140/- as advanced call deposit. Price of AIR Journal was increased to Rs. 12/- per month from 1st January, 1969. The defendant was. therefore requested to purchase four additional non-cumulative preference shares of the Value of Rs 100/- each. Accordingly the defendant applied for allotment of four shares in February, 1969, Para No 3 of this application contains, inter alia, the following state : -
My buying these four shares as above will meet the increase are in the price of AIR from Rs. 9/- to Rs. 12/- per month on account of my shareholding becoming increased to 16 shares.
The defendant paid the amount of Rs. 20/- towards application money of these four shares and Rs. 380/- towards advance call deposit against them. Four shares were thereafter allotted to the complainant whose holding increased to 16 shares and against the total advance call deposit of Rs. 1620/- made against the 16 shares the complainant was being supplied the monthly AIR Journal then priced at Rs. 12/- per month. The price of AIR Journal was again increased from Rs 12/- to Rs. 15/- from January. 1974. The complainant was, therefore/ requested to purchase four additional shares or to pay the difference of Rs. 36/- per year by cash. It appears that this letter was not received by the complainant. However, the despatch of the monthly parts to the complainant was continued, Again the price of AIR Journal was increased from Rs 15/- to Rs. 20/-from January, 1975. The complainant was therefore, requested to purchase 11 more shares to cover the increase in price. But the complainant by his fetter dated 25 2 75 expressed his unwillingness and begun to claim that the company was bound to supply him AIR Journal for life in lieu of all other facilities of shareholder such as dividend on shares, interest on Rs. 1600/- already realised, bonus, etc. The complainant also threatened the company with legal consequences. So, the company returned the advance call deposit of Rs. 1520/- to the complainant by money order and terminated the agreement by which the company was supplying AIR Journal to the complaint in lieu of interest on such amount of advance call deposit. The company ''also filed civil suit No. 371 of 1975 against the complainant in the court of Civil Judge, Senior Division, Nagpur for a declaration that the plaintiff having tendered the amount of advance call deposit of Rs. 1520/- to the defendant the contract under which the plaintiff. was supplying AIR Journal to the defendant in lieu of cash interest on such deposit has been terminated lawfully by the plaint ff and the liability of the plaintiff to supply AIR Journal has come to an end and that the company in no manner liable to supply AIR Journal or any other publication of the company of pay cash interest to the defendant. The complainant refused the money order and as the defendant be appeared in the said suit and filed written statement. Thereafter the suit was fixed for evidence on several dates. Ultimately the suit was decided on merits exparte and decree in favour of the company on 2.179. Thereafter the company sent a statement of account to the complainant showing that Rs. 228/- was payable by him for supply of AIR Journal upto December, 1978 and also intimated the.result of the aforesaid suit. The company after adjustment of Rs 228/-sent a demand draft for the balance of Rs. 1292/- to the complainant. Subsequently on account of the instance of the complainant the company sent him another demand draft for Rs. 228/- on 28.8 79. But as the said amount of Rs. 228/- was due from the complainant, the company filed a civil suit in the Court of Small Causes at Nagpur for recovery of the said amount together with Rs 8/- as the amount due for supply of AIR Journal fur the months of January and February, 1979. It is submitted that the AIR'' Journal for January and February, 1979 were sent to the complainant as the Circulation Department Of the company did not get intimation of the result of the civil suit on them. In these circumstances, when the complainant wrote to the company demanding supply of the index for AIR. Journal 1978, the company wrote to him in reply that he was entitled to the index for 1978 only on payment of Rs. 228/ due from him.
It is contended on behalf of the petitioners that in view of the decision in the civil Suit No 371 of 1975 which is binding on the criminal court and in the absence of mens rea on the part of the petitioners, the dispute between the parties being a purely civil dispute, it will be an abuse of the process of the court to allow the criminal case to proceed against the petitioners and that this court should in exercise of its inherent power quash the proceedings of the criminal case pending against them. The learned advocate for the petitioners has also relied on the decision of a Division Bench of this court in the case of AIR Limited -vs-S. C. Nath reported in 1980(1) Calcutta High Court Notes 319 by which the proceeding of an earlier complaint case under Sections 420 and 406 IPC brought by the same complainant against the company and others were quashed. It is not disputed that the Supreme Court rejected the complainants application for special leave to appeal against the said decision.
On the other hand it is contended by the complainant opposite patty No. 1 appearing, in person, (i) that the present application is not maintainable as the petitioners have not entered appearance before the learned Magistrate by avoiding service of summons; (2) that the exparte decree in the civil suit obtained by collusion and passed by a court without Jurisdiction is a nullity and in any event it is not binding on the criminal court as both a civil suit and if criminal case will lie on the same (acts if there is mens rea; (3) that the impugned order is an interlocutory order and the inherent power, of this court u/s 482 can not be exercised to avoid the bar u/s 397(2 of the Code and (4) that the Bench Decision of this Court in the case. of AIR Limited vs. S. Nath 1980(1)- CHN 319 contains erroneous findings on fact and law and the latter should be referred to a larger Bench.
It appears, that the petitioners moved this court in revision on 22.9 80 and obtained an ad interim order of stay of the proceedings in the criminal case before the service of summons issued in that case on them. The contention of the complainant that the revisional application is not maintainable as the petitioners inspite of their knowledge of the order issuing process against them did not submit to the Jurisdiction of the learned Magistrate by appearing before him is, in my view, not tenable. In the case of Sardar Trilok Singh and Others Vs. Satya Deo Tripathi, the accused applied u/s 482 of the Code for quashing the proceedings after the learned Magistrate passed the order for issue of process u/s 395 IPC against, the accused and the High Court having disallowed the application, the accused appealed by special leave. The Supreme Court rejected the contention of the respondents that the appellants filing the application for quashing the proceedings was premature In my view where there is no service of summons on the accused, he is not debarred from invoking the inherent Jurisdiction of the Court to quash the proceedings against him without appearing before the criminal court which has issued the process.
From the allegations made in the complaint against the petitioners, considered along with the copies of correspondence between the company and the complainant which are annexure 1'' to ''7 to the petitioners affidavit and are translatable into evidence and the decree passed on 121 79 in Civil Suit No. 371 of 1975 between the parties terminating the. contract between them relating to the supply of AIR Journal, I find that the present dispute between the parties over non-supply of the index to the AIR for 1978 which was published on 1.4.1979 after decision of the Civil Court is a purely civil dispute it appears front the complainant''s letter dated 5 2 69 and the application made by him for four shares in addition to 12 shares already held by him, when the price of the journal increased from Rs 9/-to Rs 12/- pet month that the complainant agreed that his purchase of those '' four shares would meet the increase in price of AIR from Rs 9/-to Rs 12/- par month. that Rs 380/- at Rs 95/ per share, would be the advance call under Article 44 corresponding to Regulation 18 of Table A of the Companies Act, which would be appropriated only towards a 11 made at any time by the company and or the court. The said amount would not be treated as loan repayable by the company but would be treated as paid, on the share within the meaning and for the purpose of Section. 426 of the Companies Act and Would be taken into account for the. purpose of final adjustment of the rights of the contributories among themselves u/s 426 of the Companies Act. The complainant also agreed that only Rs. 20/-which was the application money would carry dividend which is 6% less tax and that Rs. 95/- per share which was the advance call deposit did. not carry any dividend The complainant''s case is that he IS a shareholder of 12 shares on full payment of share money of Rs. 100/- each'' from 1955 on written assurance of supply of monthly AIR by post free of cost and carriage thereafter" under the company''s representative''s latter ''-dated 16. 2/1955. But no copy of the said letter has been annexed to the affidavit-in opposition by the complainant-opposite party. According to the opposite party the purchase of four more shares on payment in 1969 does not nullify the original contract and does not operate as a waiver. In my view, the purchase of four more shares by the opposite party in 1969 on terms of the application for those shares signed by him, renders his allegations that he is a shareholder having 12 shares on full payment of share money of Rs 100/i each from 1955 and he is entitled to free supply of AIR in lieu of dividend for all time to come since 1955, inherently improbable and patently absurd.
The company submitted to the complainant a statement of account for supply of AIR Journal to him till December, 1978 according to which Rs. 228/ was shown as due by him to the company The company wrote to the complainant on 2. 8 79 that he was entlteed to receive index for AIR Journal for 1978 on payment. of Rs. 223/-due from him according to the account upto December, 1978.- On of about 12.10. 79 the company filed a suit in the Small Causes Court, Nagpur against the complainant for recovery of Rs 236/-(Rs. 8/- being claimed as due supply for Journal and February issue of 1979) the complainant appeared and filed written statement in the suit on or about 30 11.79. Before that, he filed the complaint u/s 427 and 3b4 read with Section 511 IPC against the petitioners in the court of Judicial Magistrate at Sealdah on"23. 8. 79. So, the crux of the dispute is that the complainant demanded the index for AIR 1978 and the company agreed to supply it on payment its does amounting Rs. 228/ from the complainant and the question is whether the said amount was due from the complainant on account of supply of AIR Journal up to December, 1978. In my view, the dispute is essentially a civil dispute and the materials translatable into evidence show that the petitioners do not have the requisite mens rea for the offences alleged in the complaint. In this connection, I agree, with respect, with the decision of Manoj Kumar Mukherjee J. in the case of N. C. Nagual :vs- The State 1979(2) C. H. N. 198 that while exercising its inherent power tor quashing a proceeding in which process has been issued this court can look into and rely upon materials which can be translatable into admissible and relevant evidence besides those on which process has been issued, without embarking on an enquiry in which an appreciation of the materials may be necessary to support or dislodge the accusation.
It has been contended by the opposite party that the petitioners cannot rely ''upon the judgment in the civil suit decided exparte firstly because it has been delivered by a court not competent to decide a dispute, between a company and its shareholder and has been obtained by a collusion and secondly the decision of the civil court is not binding on the criminal court in a prosecution on similar facts. In support of his first reason he has relied upon the provisions of Section 44 of the Evidence Act. In support of his second ground he has reffered to the observation of the Privy Council in Nazir Ahmed''s case AIR 1945 P. C.I 8 at page 22 that findings in civil proceedings are not binding in subsequent prosecution founded upon similar.allegations and the Criminal court muse form us own view He has also relied on the observation of the Supreme Court in the case of M. S. Sheriff vs. The State of Madras A.I.R, 1954 S.C. 97 at page 399 that the law envisages ah eventuality of conflict of decision;; in the civil and. criminal courts when it expressly refrains from making the decision of one court binding on the other or even relevant except for certain limited purpose such as sentence or damages. But the Supreme. Court made the aforesaid observations in, a different context while deciding that as between civil and criminal proceedings, criminal matters should be given precedence. Reference has also been made by the opposite-party to the observation of the Supreme Court in the case of Jaswantrai Manilal Akhaney Vs. The State of Bombay, at page 582 that if there is no mens rea or if other essential ingredients of an offence are lacking the same facts may not sustain a criminal prosecution through a civil action, may lie. It has been argued by the opposite party that the converse is also true. On the other hand the learned advocate appearing for the petitioners has relied on the observation of the Supreme Court in the case of Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, '' that it is'' a well settled principle of law that the decisions of the civil court are binding on the criminal courts and the converse is not true. In that case the High Court rejected the writ petition of the. appellants who alleged that restrictions on movement'' of maize from the State of Hariyana to West Bengal under the relevant Order made under the Essential Commodities Act had been withdrawn before they exported maize to west, bengal, on the ground that certain criminal proceedings were pending against the appellants in courts in West Bengal. The Supreme Court allowing the appeal made the aforesaid.observation. In my opinion, in the instant case the dispute between the parties toeing in essence civil dispute and 30 the materials translatable into evidence rule out any mens rea of the petitioners, the ultimate decision of the civil "court on<4he dispute will-prevail and the criminal court is hot the pr)-per forum for adjudicating upon it. The decree of the civil court if the civil suit between the parties shall continue to be binding on the opposite party till the opposite party succeeds in avoiding its effect in a proper proceeding.
It has been contended by the opposite party that the revisional application under. Section 401 read with Section 482 of the Cede is not maintainable as the impugned order is an interlocutory order and in support of this contention reliance has been, placed on the decision of the Supreme Court in the case of Amar Nath and Others Vs. State of Haryana and Another, that the inherent power in Section 482 would not be available to defeat the bar contained in Section 397 (2) of the Code. But in my, view, the law on this point has been explained by the Supreme Court in the case of Madhu Limaye Vs. The State of Maharashtra, (paragraphs 6 to 9) in which it has been held that in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is necessary, then nothing contained'''' in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court.
As I have already indicated that the present prosecution is an abuse of the process of the court, I cannot accept the contention raised by the opposite party.
The opposite party has sought to find fault with the Bench decision in the case of A. I. R. Limited vs. S. C. Nath 1980 (1) C.H.N. 319 cited on behalf of the petitioners to show that the'' proceeding in the earlier criminal case brought by the opposite party under Sections 420 and 406 IPC against the company and others were quashed by the High Court after, going into the agreement between the parties and holding that the dispute was a civil dispute. The opposite party has urged that * in view of the errors of fact and law in the said decision, this Bench without relying on the said decision, this Bench without relying on the said decision should refer the questions of law to a larger Bench through the Chief Justice. But I do not feel any necessity to make such reference in connection with. the present case. It is also not necessary to found my judgment in the instant case.on the reported decision which relates to a complaint under Sections 420|406 IPC.
It has been held by the Supreme Court in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, that one of the categories of cases in which an order of the Magistrate can be quashed or set aside is whether the allegations made in the.complaint are patently absurd or inherently improbable so "that no product man can reach a conclusion that there is sufficient ground for proceeding against the accused. For reasons discussed above, I hold that the present case fails with the said category and it will be an abuse of the process of court to allow the proceeding in the criminal case to continue against the petitioners. In the result, the application succeeds and the Rule is made absolute. The impugned order of the learned Magistrate is set aside and the proceeding of the criminal case being complains Case No. 680 of 1979 pending in the First Court of Judicial Magistrate at Sealdah against the petitioners is quashed.