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2004 Supreme(Cal) 180
High Court Of Calcutta
S. K. GUPTA
JAYANTA SAHA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 5 Of 2003
Decided On : 03/11/2004
MILAN MUKHARJI, R.N.CHAKRABORTY, SANDIPAN GANGULY, SHYAMAL CHAKRABORTY
In the absence of entrustment of property and misappropriation, the ingredients of offences under sections 406 and 420 of the IPC are not established. Continuation of criminal proceedings in such cases amounts to abuse of process of court.
Headnote:
CRIMINAL LAW - QUASHING OF CRIMINAL PROCEEDINGS - SECTION 482 OF CRPC - INGREDIENTS OF OFFENCES UNDER SECTIONS 406 AND 420 OF IPC NOT ESTABLISHED - NO ENTRUSTMENT OF PROPERTY BY ONE PARTNER TO ANOTHER - NO MISAPPROPRIATION - NO FALSE OR FRAUDULENT REPRESENTATION - CIVIL DISPUTE - ABUSE OF PROCESS OF COURT - PROCEEDINGS QUASHED.
Fact of the Case:
A partnership firm, M/s. J. K. Distributors, was dissolved due to misunderstandings between the partners. The opposite party No. 2, one of the partners, alleged that the petitioner, the other partner, took away signed blank cheques and Band Drafts with the intention to cause loss to the firm. A criminal case under sections 406/420 of the IPC was initiated against the petitioner based on a complaint filed by the opposite party No. 2.
Finding of the Court:
The court found that there was no delivery of property by the opposite party No. 2 to the petitioner, as both were partners in the firm and had equal interest in its property. Therefore, the ingredient of entrustment under section 406 IPC was not satisfied. The court also found that the petition of complaint did not disclose any false or fraudulent representation by the petitioner or any misappropriation of property belonging exclusively to the opposite party No. 2. Thus, the ingredients of section 420 IPC were also not established.
Issues: 1. Whether the ingredients of offences under sections 406 and 420 of the IPC were established in the criminal case against the petitioner. 2. Whether the continuation of the criminal proceeding would be an abuse of the process of the court.
Ratio Decidendi: 1. The court held that there was no entrustment of property by one partner to another, as both were partners in the firm and had equal interest in its property. Therefore, the ingredient of entrustment under section 406 IPC was not satisfied. 2. The court also held that the petition of complaint did not disclose any false or fraudulent representation by the petitioner or any misappropriation of property belonging exclusively to the opposite party No. 2. Thus, the ingredients of section 420 IPC were also not established. 3. The court further held that the continuation of the criminal proceeding would be an abuse of the process of the court, as there was no criminal ingredients in the petition of complaint and the allegation as made in it was of such a nature that proceeding with a criminal case will be an abuse of the process of the Court as well as the wastage of time and money.
Final Decision: The court allowed the revisional application and quashed the criminal proceeding pending before the learned Court below.
( 1 ) THIS revisional application has ben filed under section 482 of the Code of Criminal Procedure praying for quashing of the investigational proceeding of Baranagar P. S. Case No. 144 dated 23. 09. 2002. After filing of the said revisional application a supplementary affidavit has been filed by the petitioner wherein it has been stated that during the pendency of this proceeding, charge sheet has been illegally submitted against the petitioner and as such, the petitioner has prayed for quashing of the entire proceeding as pending before the learned SDJM, Barrackpur.
( 2 ) IT is the case of the petitioner that the opposite party No. 2 started a partnership business along with the petitioner which is styled as M/s. J. K. Distributors through a Deed of Partnership. Said partnership firm obtained distributorship from Savita Chemicals Ltd. for the purpose of sale and carrying business of lubricating oil under the brand name ?idemitsu?. The clearing and forwarding agent of said M/s. Savita Chemicals Ltd. was M/s. K. K. Enterprises of which Captain H. S. Jassal held an important post. It has been alleged by the opposite party No. 2 that since March/april, 2002 the petitioner was acting in an unfavourable manner and started paying more attention to the business of his father. The opposite party No. 2 alleged that he found shortage of funds of the firm and loss of day to day business due to such non co-operation of the petitioner. As a result of that misunderstanding, the opposite party and the petitioner dissolved the said business by way of a Deed of Dissolution dated 21. 05. 2002. After such dissolution the opposite party No. 2 found that some signed blank cheques, Band Drafts were missing and he apprehended that the petitioner took away those articles with the intention to cause loss to the said firm. The matter was reported to the Baranagar Police Station. opposite party No. 2 also alleged that the petitioner tried to influence M/s. Savita Chemicals Ltd. not to sell the goods to the opposite party No. 2 and he started the rumour that the opposite party No. 2 was no longer solvent. Even after the dissolution of the partnership firm the petitioner allegedly represented himself as a partner of the said firm. The petitioner and the co-accused entered into a conspiracy to undermine the business prospect of the defacto complainant. Due to all those reasons, the opposite party No. 2 submitted a petition under section 156 (3) of the Code of Criminal Procedure before the learned Magistrate and same was sent to the P. S. for treating the same as FIR. On the basis of the said written complaint, a case under section 406/420 of the Indian Penal Code was started against the petitioner and against another person. The opposite party No. 2 also filed a suit before the City Civil Court, Calcutta wherein he prayed injunction against the petitioner and others. The petitioner, in his present petition, has also alleged that there were some monitors transactions in between the parties in connection with the business of the two partners. According to the petitioner, in order to harass him the opposite party No. 2 has initiated the criminal proceeding falsely against him. The First Information Report reveals that there was an extreme business rivalry between the two partners and the said FIR is devoid of any ingredients of the offences as alleged. The allegation as made in the FIR, even if it is taken in its face value, then also it will not justify the initiation of a criminal proceeding by the opposite party No. 2. The continuation of the said proceeding or rather the submission of charge sheet in the proceeding is an abuse of the process of law and it is a fit case where the proceeding pending before the learned Magistrate should be quashed.
( 3 ) I have already pointed out that at the time of hearing the learned advocate for the petitioner submitted that during the pendency of this proceeding charge sheet under section 406/420 IP
