IMPORTANT POINT
The court established that allegations of misappropriation require substantial evidence, and mere confessions or vague audit reports are insufficient to support criminal charges.

JUDGMENT :

(Shampa Dutt (Paul), J.) :

1. The present revision has been preferred against an order dated 30.07.2019 passed by the Learned 20th Metropolitan Magistrate, Kolkata in connection with Complaint Case no. CN/115880/2016 registered for the offences under Sections 420/408/468/471/120B of the Indian Penal Code, 1860.

2. The petitioner is a renowned diagnostic centre and referral laboratory.

3. The petitioner states that the opposite party no.1/Gaur Basak was an employee of The Serum Analysis Centre which is the sister concern of the petitioner and he was deputed to work in the Accounts Department of the petitioner/M/s. S. Serum Analysis Centre (P) Ltd. since 2011 and the opposite party no. 2/Ms. Shrabani Sarkar and the opposite party no.3/Kaushik Nandy were working under the supervision of the opposite party no. 1.

4. That the petitioner’s account department was mainly controlled & managed by the said opposite parties no. 1 to 3 and during scrutiny for the financial year 2012-2013, it has been found that the opposite parties no. 1 to 3 misappropriated huge amount of the petitioner and for the same the said opposite parties duly acknowledged their involvement in the said huge loss to the petitioner vide declaration dated 13/06/2013 and further they undertook to return the money which they had received from different franchisee/agents for their wrongful gain and the said declaration the opposite parties no. 1 to 3 never raised any objection.

5. On or about 20.06.2013 the petitioner lodged a formal complaint vide G.D. Entry No. 2195 dated 20.06.2013 in respect of Misappropriation of Fund & Breach of Trust against the said opposite parties no.1 to 3 and in the said letter it was requested to the Officer-in-Charge of Shyampukur that “at once we did not want to record any case against the culprits till the conclusion of our internal audit, enquiry and investigation”.

6. Subsequently the petitioner appointed Sri Ranajit Dey, FCA (Proprietor of R. Dey & Associates of 124B, Lenin Sarani, Kolkata – 700 013 as an Independent Inquiry Officer for investigating the matter for the financial year 2012-2013 and the said Inquiry Officer after giving opportunity to all the parties, concluded the inquiry and submitted the report and during the said inquiry the opposite party no. 2 & 3 confessed that “Mr. Gaur Basak influenced and instructed them to do the misappropriation of fund on his behalf & he forced us to misappropriate fund”.

7. The petitioner states that the said opposite parties 1 to 3 with others committed an offence and entered into criminal conspiracy and thereby dishonestly misappropriated the huge fund i.e. a sum of Rs. 35,93,016/- (Rupees Thirty Five Lacs Ninety Three Thousand Sixteen only) for particular one financial year 2012-13 of the petitioner as per report of the above Inquiry Officer by manipulating the accounts as well as by discounting the bills (they were never authorized for discounting any bill) and also by giving false declaration dated 13.06.2013, that they would return the amount, but they did not return the amount and as such they committed an offence of misappropriation of the huge amount and also cheated the petitioner.

8. The petitioner vide letter dated 27.01.2014 requested the Officer-in-Charge of Shyampukur Police Station, Kolkata to take appropriate steps for investigation in the matter but no action was taken against the said opposite parties. The petitioner filed an application under Section 156(3) Criminal Procedure Code being case no. C/89/2014 before the Learned Additional Chief Metropolitan Magistrate Court Kolkata against the opposite parties no.1 to 3 for the misappropriation/cheating to the tune of Rs. 35,93,016/- for the financial year 2012-2013 and after hearing the said matter the Learned Magistrate forwarded the said matter to the Officer-in-Charge Shyampukur Police Station for investigation and thereafter Shyampukur Police Station registered a case vide Shyampukur P.S. Case No. 52/2014 da