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1996 Supreme(Cal) 124
High Court Of Calcutta
ASISH BARAN MUKHERJEE
ANWARUL ISLAM - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Revision 1789 Of 1995
Decided On : 03/21/1996
AINUL HAQUE, AJAY NATH MUKHERJI, Gautam Sarkar, Minoti Gomes
A magistrate cannot send a complaint to the police station for investigation without taking cognizance of the offence under Section 190 (1A) Cr. P. C. and following the procedure laid down in Section 200 Cr. P. C. and subsequent sections. Additionally, a dispute between partners that is subject to an arbitration clause in the partnership deed cannot form the basis of a criminal offence.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156 (3) - SECTION 190 (1A) - SECTION 200 - SECTION 204 - SECTION 406 I. P. C. - SECTION 420 I. P. C. - QUASHING OF F. I. R. - JURISDICTION OF MAGISTRATE - COGNIZANCE OF OFFENCE - ARBITRATION CLAUSE IN PARTNERSHIP DEED - ELEMENTS OF CHEATING - CRIMINAL BREACH OF TRUST BY PARTNER.
Fact of the Case:
The accused petitioner, a partner in a firm, was accused of misappropriating Rs. 15 lacs and entering into a conspiracy with other partners to cause harm to the firm. A complaint was filed under Section 156 (3) Cr. P. C., which was sent to the police station for investigation. The accused challenged the legality of the F.I.R. and the subsequent investigation.
Finding of the Court:
The court found that the magistrate had taken cognizance of the offence under Section 190 (1A) Cr. P. C. and should have proceeded according to Section 200 Cr. P. C. and subsequent sections before issuing process under Section 204 Cr. P. C. The court also found that the dispute between the partners was subject to an arbitration clause in the partnership deed and could not form the basis of a criminal offence. Additionally, the court found that the elements of cheating under Section 420 I. P. C. and criminal breach of trust under Section 406 I. P. C. were not present in the complaint.
Issues: 1. Whether the magistrate had jurisdiction to send the complaint to the police station for investigation without taking cognizance of the offence under Section 190 (1A) Cr. P. C.? 2. Whether the dispute between the partners could form the basis of a criminal offence in light of the arbitration clause in the partnership deed? 3. Whether the elements of cheating under Section 420 I. P. C. and criminal breach of trust under Section 406 I. P. C. were present in the complaint?
Ratio Decidendi: 1. The court held that the magistrate had taken cognizance of the offence under Section 190 (1A) Cr. P. C. and should have proceeded according to Section 200 Cr. P. C. and subsequent sections before issuing process under Section 204 Cr. P. C. The court relied on the fact that the magistrate had perused the complaint, heard the advocate, and given consideration to the matter before sending it to the police station. 2. The court held that the dispute between the partners was subject to an arbitration clause in the partnership deed and could not form the basis of a criminal offence. The court relied on the terms of the partnership deed, which provided for arbitration in the event of a dispute between the partners. 3. The court held that the elements of cheating under Section 420 I. P. C. and criminal breach of trust under Section 406 I. P. C. were not present in the complaint. The court found that there was no allegation of cheating in the complaint and that the alleged violation by one partner could not constitute an offence under Section 406 I. P. C.
Final Decision: The court allowed the revision application and quashed the F.I.R. and the investigation started on its basis.
( 1 ) THE revisional application has been filed to quash the proceeding being Karaya P. S. Case No. 218 dated 20-9-95 (O. G. R. 3128/95) pending before the Ld. Chief Judicial Magistrate, Alipore and arisen out of a petition of complaint being C1297 of 1995 which was sent to the P. S. concerned under Section 156 (3) Cr. P. C.
( 2 ) THE case of the accused petitioner is that the complainant being O. P. No. 2 is the senior partner of M/s. Islam and Associates, Calcutta, the other partners being accused Nos. 1 and 2 by virtue of a partnership deed dated 1-4-88. It has been alleged that the said firm received a contract from M/s. Larsen and Toubro Ltd. for work of a chimney at Tenughat Thermal Power Station, Giridi. Pursuant to the discussion dated 16-1-93, the partners of the said firm placed a number of orders for supply of various materials on different manufacturers and engaged M/s. United Engineering Works of Begusarai at Bihar as sub-contractor to look after the labour part of the job. One Syed. Julfikar Ali of Calcutta Office was sent to Tenughat for keeing accounts of payments and expenses at the site. It has been alleged that the accused have misappropriated Rs. 15 lacs and as such the functioning of the firm became impossible pursuant to a conspiracy entered into and between the accused persons on 8-8-94 when the complainant wrote to the O. C. Karaya, P. S. on 9-9-95. As no action was taken, the petition of complaint was filed under Section 156 (3) Cr. P. C. which was sent to the O. C. Karaya P. S. for investigation.
( 3 ) IT is alleged that the dispute arising between the parties is absolutely of civil nature between the partners and it has been given the colour of a criminal offence for the purpose of wreaking vengeance on the part of one partner against the other. It is alleged that the same facts cannot give rise to offences of cheating as welt of criminal breach of trust. There is also no allegation of cheating averred in the four corners of the complaint. It is alleged that date of alleged conspiracy is 8-8-94 and the F. I. R. was made more than a year thereafter, In terms of Clause 26 of the partnership deed, disputes arising between the partners are required to be referred to the arbitrators and as such the instant criminal case is not maintainable.
( 4 ) O. P. No. 1, the State has not entered appearance but the revisional application is being contested
( 5 ) THE Ld. Advocate appearing for the petitioner has referred to the petition of complaint under Section 156 (3) Cr. P. C. from para 6 onwards. It has been argued that the Ld. Magistrate before whom the application under Section 156 (3) Cr. P. C. was filed applied his mind so much so that he must be deemed to have taken cognizance of the alleged offence under Section 190 (IA) Cr. P. C. and as such it was incumbent for him to have recourse to Section 200 Cr. P. C. and the provisions laid down thereafter. It has been argued that after application of mind necessary for taking cognizance of an offence the Ld. Magistrate has no jurisdiction to send the same to P. S. for treating the same as F. I. R. and to investigate according to law.
( 6 ) THE Ld. Advocate also drew my attention to para 6 of the petition of complaint and argued that in terms of the averment it can at best be stated that subcontractor was appointed by some of the accused persons without consent of the other partners. It is argued that such appointment even if, it be by way of breach of the agreement as contained in the partnership deed cannot form the basis for a criminal action.
( 7 ) MY attention has also been invited to para-9 of the petition of complaint where it has been stated that the complainant earlier submitted a complaint in writing to O. C. , Karaya P. S. along with the Xerox copies of some documents and correspondence after collecting those documents from the records of M/s. Larsen and Toubro Ltd. disclosing commissions of cognizable offences with a view t
