TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 675
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....on- Park Street and represented by its authorized representative Mr.Ashok Kumar Goenka. A petition of complaint being no.C/4906 of 2013 was initiated by the opposite party no.2 before the Court of Learned Chief Judicial Magistrate, Alipore, Kolkata, against the present petitioners under the provisions of Sections 403,405,406,415,418,420/120B of the Indian Penal Code. On the basis of that petition of complaint, the Learned Chief Judicial Magistrate, Alipore, Kolkata, took cognizance of the offences alleged vide order dated July 1, 2013, and transferred the case to the Learned Judicial Magistrate, 7th Court, Alipore, Kolkata, for disposal. Learned Judicial Magistrate, 7th Court, Alipore, examined the complainant/opposite party no.2 under Section 200 of the Code of Criminal Procedure, thereafter, the Learned Magistrate opined that there was prima facie case for proceeding against the petitioners for commission of the alleged offences punishable under Sections 420,406 and 120B of the Indian Penal Code. Learned Magistrate, vide order dated July 15, 2013, issued process against the present petitioners to face trial for commission of alleged offences. The petition of complaint has bee....
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....nterest amounting to Rs. 18,71,507/- (Rupees Eighteen Lakh Seventy One Thousand Five Hundred and Seven) and Rs. 19,73,219/- (Rupees Nineteen Lakh Seventy Three Thousand Two Hundred and Nineteen) respectively and one cheque was issued towards the principal amount of Rs. 5 Crores. Accused company accepted those three cheques. On July 13, 2011, the complainant paid a sum of Rs. 18,71,507/- to the accused being the amount covered under the cheque towards interest. Due to volatile market condition, the complainant caused to be pledged through Wealth Overseas Pte Limited, further 13,76,000 shares of Dunlop India Limited on different dates with the accused no.1, till mid August, 2011, an aggregate of 32,28,000 shares of Dunlop India Limited were pledged with the accused company. A letter dated August 20, 2011, was sent to the accused no.1 avowing volatile market condition and requested the accused not to sell any shares and to wait till the market was stabilized. The complainant had caused to be pledged further shares in favour of the accused no.1 again towards its commitment in favour of the accused no.1. The complainant had assured to pledge further shares in favour of the accused no.....
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....ivance with each other invoked the pledged shares much before the due date without prior knowledge, consent and approval of the complainant and thereby committed breach of trust. It is also the allegation of the complainant that the accused by realizing the shares pledged or entrusted to it before the due date have committed criminal breach of trust. According to the complainant, in terms of Clause 7 of the agreement, it was incumbent to the accused to forward the amount in excess realized by invocation of the pledged shares to the complainant after appropriating the proceeds of such realization towards payment of ICD and interest payable thereon. Learned Counsel appearing for the petitioners while making his submissions in favour of quashing of the criminal proceedings pending against the petitioners has submitted that the continuance of the present proceedings against the petitioners would be a gross abuse of the process of the Court. The proceedings pending before the Learned Magistrate have been assailed by the Learned Counsel for the petitioners on various grounds. Learned Counsel for the petitioners has argued that the allegations contained in the petition of complaint do n....
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....eement. He has also submitted that the allegation of invoking of pledged shares in violation of the terms of agreement may give rise to civil dispute only. Learned Counsel for the petitioners has also contended that the petitioner nos.2 and 3 are the directors of the accused company and the petition of complaint did not contain any specific averment as to the role played by the petitioner nos.2 and 3 in the commission of alleged offences of cheating and criminal breach of trust. It has been submitted on behalf of the petitioners that the Indian Penal Code does not contain any provision for attaching vicarious liabilities on the part of the Directors when the accused is the company. During the course of his submissions, the Learned Counsel for the petitioners has drawn the attention of the Court to the cause title of the petition of complaint and specifically contended that all the accused reside outside the territorial jurisdiction of Learned Magistrate and the Learned Magistrate issued process against them without complying with the mandatory provisions as contained in Section 202(1) of the Code of Criminal Procedure. In support of his submissions, the Learned Counsel for th....
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....intention. It is the specific contention of the Learned Counsel for the opposite party/complainant that the facts narrated in the petition of complaint prima facie disclose the commission of the alleged offences and it is not a fit case to exercise inherent power under Section 482 of the Code of Criminal Procedure by the High Court. Learned Counsel for the opposite party/complainant has cited the following decisions in support of his submissions: 1) Mohd. Allauddin Khan Vs. State of Bihar and Anr. reported in 2019 (6) SCC 107, 2) Chilakamarthi Venkateswarlu & Anr. Vs. State of Andhra Pradesh & Anr. reported in 2019 SCC Online SC 948, 3) Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and Anr. reported in 2006 (7) SCC 188, 4) Rajesh Bajaj Vs State NCT of Delhi & Anr. reported in 1999 (3) SCC 259, 5) Gurudas Purakait Vs State of West Bengal & Anr. reported in 2009 SCC Online CAL 2795, 6) Mahavir Prashad Gupta & Anr. Vs. State of National Capital Territory of Delhi & Anr. reported in 2000 (8) SCC 115, 7) State of M.P. Vs. Awadh Kishore Gupta & Ors. reported in 2004(1) SCC 691, 8) State of Karnataka Vs. M.Devendrappa & Anr. reported in 2002 ....
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....power under Section 482 of the Code of Criminal Procedure is an exception. It can be exercised ex debito justitia to do real and substantial justice. At the time of quashing of the proceedings under Section 482 of the Code of Criminal Procedure, the Court must be of the opinion that the continuance of the proceedings would be an abuse of the process of the Court. In order to form an opinion in this regard, the complaint has to be read as a whole. If on perusal of the entire complaint, it reveals that the averments of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioners/accused then the question of quashment of proceedings comes. In the present case, the complainant narrated the entire situation how the complainant suffered wrongful loss due to the acts of omission and commission on the part of the accused. It was also alleged that the accused had invoked the pledged shares of Dunlop India Limited even before expiry of the due date for repayment and misappropriated the entire sale proceeds of Rs. 9,60,33,000/- (Rupees Nine Crore Sixty Lakh Thirty Three Thousand)....
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.... in Criminal Appeal No.1082 of 2019 of Chilakamarthi Venkateswarlu & Anr. Vs. State of Andhra Pradesh & Anr (Supra) and in the decision of Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and Anr (Supra) and has vigorously contented that in a proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. Initiation of proceedings under Section 138 of the Negotiable Instruments Act, against the complainant prior to filing of the complaint against the present petitioners/accused persons does not ipso facto prove or establish that the subsequent proceedings is a counterblast to the earlier proceedings initiated under Section 138 of the Negotiable Instruments Act. Each case has to be judged on its own merit. In the present case, the opposite party/complainant has described how the complainant company was cheated and suffered loss. The essential elements of the alleged offences under Sections 420/406 of the Indian Penal Code are prima facie present in the allegations contained in the petition of complaint. While deali....
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....se out of a commercial transaction and are purely civil in nature. It cannot be denied that the offence of cheating may take place in the course of commercial and civil transaction. Nature of transaction and the intention of the person against whom the allegation is made that he induced the victim/complainant are to be construed to see whether there was alleged commission of the offence of the cheating or not. In the instant case, there are specific averments in the petition of complaint which prima facie indicate that the commission of the alleged offences. As such the contention of the Learned Advocate for the petitioners that the averments of the petition of complaint reveal the factum of loan transaction which is purely civil in nature cannot be accepted at this stage. The last contention of the Learned Counsel for the petitioners is that all the petitioners reside beyond the territorial jurisdiction of the Learned Magistrate and issuance of process by the Learned Magistrate without complying with the provision of Section 202 of the Code of Criminal Procedure is not lawful. In support of the above contention, the Learned Counsel for the petitioners has placed his reliance o....
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....rty has invited the attention of the Court to paragraphs 28 and 29 of the decision of Royal Medical Trust & Anr. Vs. Union of India & Anr. (Supra) for proper appreciation both the said paragraphs are reproduced as under: "28. It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. Lord Halsbury in Quinn v. Leathem [Quinn v. Leathem, 1901 AC 495 : (1900-03) All ER Rep 1 (HL)] has ruled: (AC p. 506) "... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found." 29. A three-Judge Bench in Union of India v. Dhanwanti Devi [Union of India v. Dhanwanti Devi, (1996) 6 SCC 44] , while ....
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.... is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents." Learned Counsel for the petitioners has also cited the decision of State of Orissa Vs. Sudhansu Sekhar Misra & Ors. (Supra) and has forcefully contended that the decision of S.S. Binu and ....