Back
2019 Supreme(Cal) 85
IN THE HIGH COURT OF CALCUTTA
ASHA ARORA, J.
RITESH NARULA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Revision No. 1717 of 2017; CRAN No. 3650 of 2018
Decided on : 18-03-2019
Advocate Appeared:
Soubhik Mitter, Adv., Koushik Kundu, Adv., Sourav Chatterjee, Adv., Sayanti Santra, Adv., Avirup Chatterjee, Adv.
The intention of the accused is crucial in discerning the commission of the offence, and the availability of civil remedies does not bar criminal prosecution.
Headnote:
Cheating - Criminal Proceeding - Indian Penal Code - 420/120B - [IPC 420, IPC 120B] - The court discussed the ingredients of the offence alleged, the intention of the accused, and the relevance of civil remedies in cases of fraud and forgery. Key legal provisions such as section 415, 418, and 420 of the Indian Penal Code were interpreted to determine the prima facie case for the alleged offence. The court emphasized that the intention of the accused is crucial in discerning the commission of the offence and that the availability of civil remedies does not bar criminal prosecution.
Fact of the Case:
The petitioners sought to quash criminal proceedings under section 482 of the Code of Criminal Procedure for alleged offences under section 420/120B of the Indian Penal Code. The complaint alleged that the accused induced the complainant to deliver goods and issued dishonored cheques. The petitioners argued that the ingredients of the alleged offence were not disclosed and that a civil suit or a complaint under section 138 of the Negotiable Instruments Act would have been more appropriate.
Finding of the Court:
The court dismissed the application, stating that the necessary factual foundation for the alleged offence was laid, and the charge-sheet prima facie disclosed the commission of the offence. The court clarified that it had not expressed any opinion on the merits of the case and directed the trial court to proceed with the case in accordance with the law.
Issues: The issues revolved around the disclosure of the ingredients of the alleged offence, the relevance of civil remedies, and the intention of the accused in discerning the commission of the offence.
Ratio Decidendi: The court emphasized that the intention of the accused is crucial in discerning the commission of the offence and that the availability of civil remedies does not bar criminal prosecution. It also highlighted that the necessary factual foundation for the alleged offence was laid, and the charge-sheet prima facie disclosed the commission of the offence.
Final Decision: The application for quashing the criminal proceedings was dismissed, and the trial court was directed to proceed with the case in accordance with the law.
ASHA ARORA, J.
1. The petitioners have approached this Court under section 482 of the Code of Criminal Procedure for quashing of the proceeding of GR Case No. 1805 of 2014 arising out of Taltala P.S. Case No. 242 of 2014 dated 26/12/2014 under section 420/120B of the Indian Penal Code pending before the learned Metropolitan Magistrate 20th Court Calcutta.
2. The facts in brief leading to the present application may be summarized as follows:
The opposite party no. 2/complainant lodged a written complaint dated 24/12/2014 at Taltala P.S. against the petitioners alleging commission of offence under section 420/120B. On the basis of the aforesaid complaint the above mentioned criminal proceeding was initiated. Investigation culminated in the submission of the chargesheet under section 420/120B IPC against the petitioners wherein it is alleged that on 18/10/2014 the accused persons dishonestly induced the complainant to deliver stock of IMFL and beer to M/S Luxamee Kutir Udyog Liquor Division and after receiving the same, they neither paid the bill amount of Rs. 8,18,304/- nor returned the stock to the complainant. The accused issued four cheques to the complainant which were dishonoured due to insufficient fund.
3. Learned counsel appearing for the petitioners argued that the ingredients of the offence alleged are not disclosed. There was continuous business transaction between the parties. The offence of cheating involves dishonest intention from the inception of the transaction. Mere non payment of the amount alleged for a single transaction does not make out the offence of cheating. Learned counsel sought to impress that a civil suit for recovery of dues or a complaint case under section 138 of the Negotiable Instruments Act would have been an appropriate remedy. To fortify his argument, learned counsel for the petitioners placed reliance on the following case laws:
1. Dr Sharmas Nursing Home versus Delhi Admn. And Others, (1998) 8 SCC 745.
2. Medchl Chemicals & Pharma (P) Ltd. versus Biological E. Ltd. and Others, (2000) 3 SCC 269.
3. G. Sagar Suri and Another versus State of U.P. and Others, (2000) 2 SCC 636.
4. Hotline Teletubes and Components Ltd. and Others versus State of Bihar and Another, (2005) 10 SCC 261.
5. Vir Prakash Sharma versus Anil Kumar Agarwal and Another, (2007) 7 SCC 373.
6. Anil Mahajan versus Bhor Industries Ltd. and Another, (2005) 10 SCC 228.
7. V.P. Shrivastava versus Indian Explosives Limited and Others, (2010) 10 SCC 361.
8. R.K. Vijayasarathy and Another versus Sudha Seetharam and Another, 2019 SCC Online(SC) 208.
4. Learned counsel for the opposite party no. 1/State countered that the allegations set out in the complaint and the material collected during investigation make out a prima facie case disclosing the ingredients of the offence alleged. It is argued that there is no legal bar to the institution of a criminal case under section 420 IPC if a complaint under section 138 of the Negotiable Instruments Act is not filed. Learned counsel contended that even during the pendency of the proceeding under section 138 of the Negotiable Instruments Act, prosecution under section 420 IPC can be launched since the ingredients of the offence are entirely different. It has further been canvassed that the factual issues are matters to be decided by the trial Court. At this stage the complaint has to be examined as a whole without going into the merits of the allegations made therein. It is sufficient if the allegations in the complaint on the face of it constitute the offence alleged. To buttress his argument learned counsel for the State relied on the case of Sangeetaben Mahendrabhai Patel versus State of Gujarat and Another, (2012) 7 SCC 621 (paragraph 35), Medchl Chemicals & Pharma (P) Ltd. versus Biological E. Ltd. and Others, (2000) 3 SCC 269 (paragraphs 14 to17) and State of Karnataka versus M. Devendrappa and Another, (2002) 3 SCC 89 (paragraph 9).
5. Repudiating the submissions on behalf of the petitioner
