JUDGMENT :

CHAITALI CHATTERJEE DAS, J. 

1. This application under Section 482, read with Section 401 of the Code of Criminal Procedure, 1973 has been filed by the petitioner against an order dated September 19, 2023 passed by the Learned Additional Chief Judicial Magistrate (in-charge) Kalyani, in connection with Kalyani Police Station case no 642 of 2022 whereby refused the prayer for further investigation .

Brief Fact of the case

2. The facts leading to filing of this case is that the petitioner happens to be the Director of M/s. Bengal Surgical Limited .He lodged a written complaint on November 17, 2022, before the Inspector-in-charge, Kalyani Police Station against the present Opposite Party no.2 who used to work for gain as an accountant in his office from July 9, 2016 alleging misappropriating huge amount of money to the tune of Rs. 2, 35, 60, 509 by using net banking service which came to the knowledge of the complainant when the Opposite Party no. 2 withdrew the amount on various dates from IndusInd Bank. The Opposite Party no. 2, confessed his guilt before him and admitted to refund the entire amount to the company, but paid only Rs. 83, 79,000/-. On August 22, 2023, and August 23, 2023, the Opposite Party no. 2 had called the Director of the company at his residence to complete the entire embezzled amount, but threatened with the help of some local miscreants, to the Directors with serious consequences in future and will not pay a single penny. Hence the complaint had to be lodged. After that in connection with the said complaint, the Opposite Party no. 2 was served with a notice under Section 41A of the Code of Criminal Procedure, 1973, and after that charge-sheet was submitted on May 31, 2023, under Section 420/406 of the Indian Penal Code, 1860 only against the Opposite Party no. 2.

3. It is the case of the petitioner that from the charge-sheet it is glaringly visible that the amount was transferred to both the account of the Opposite Party no 2 and his mother but she was not made an accused in the charge-sheet. The petition for further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 was filed inter-alia with a prayer for further investigation by a higher officer on the ground that the local Kalyani Police Station is not well equipped to conduct such investigation. On September 19, 2023, the said application was heard by the Learned Court and after perusing the materials of record without considering the materials on record passed the order of rejection on September 19, 2023, with an observation that further investigation is not required.

Submission

4. It is submitted by the learned Advocate, representing the petitioner that the observation of the learned Court that he took cognizance of the charge-sheet after being satisfied with the same in all aspect and hence further investigation cannot be directed, is not sustainable in the eye of law. The learned Advocate relied upon the decisions, CEREF Finance Limited versus Shri Shanti homes (P.) Ltd. and Anr., (2005) 7 SCC 467 where it is observed that the Cognizance is taken of the offence not against the offender .Another decision relied upon by the learned Advocate reported in K. Vadivel versus K. Shanthi and others 2024 SCC online SC 2643 where the question arose for consideration, whether the High Court was, on the facts of the case, justified in ordering further investigation and the power of the magistrate to direct further investigation. The learned advocate put reliance on the judgement delivered by the coordinate bench of this court at circuit bench at Jalpaiguri in 2023: CHC-JP: 406, Palat tak Ghosh versus State of West Bengal, 2015 SCC online 1515, , Shakti Pada Ghosh versus State of West Bengal Hassanbhai Vallabhai Qureshi versus State of Gujarat and others (2004) 5 SCC 347

5. The learned prosecution on the other hand submits candidly that there are procedural laches on the part of the investigating authority as nothing was seized from th