TaxTMI 
TaxTMI 
2013 (8) TMI 1175
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....418/420/406/120B, IPC and the orders passed therein including the orders dated 16.1.11 and 22.1.11 respectively. 2. In brief the background of these revisions are that the petitioner is a non-executive Director of MIMEC India Ltd. situated at 5th floor, Poonam Building, 5/2, Russell Street, Calcutta-71 since 28.3.2005. Before that the petitioner was in no way connected with the said company. The petitioner came to know that on or before 14.12.11, a petition of complaint had been filed against the petitioner in complaint case No. C-26935/2011 before the Court of learned Metropolitan Magistrate, 8th Court, Calcutta. The complaint shows that the said company, being accused No. 1 alongwith accused Nos. 2 to 9 being Directors and other Officers of accused No. 1 published and distributed a pamphlet/brochure named "Prakiti Beckons" offering to public to sell plots on the outskirts of Hyderabad about 36 kms. away from the heart of the city on NH 9, close to Ramojirao Film City. Based on such representations the complainant purchased a plot of land of the said Project and received the sale deed in 1994 executed on 7.4.94 at Nalgonda, A.P. and made over to him by the accused Nos. 10 and 1....
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....ated that a deed of sale was executed in respect of a demarcated plot of land being 498 sq. mtrs. situated at plot No. 487, survey No. 32, sector III of village Malkapur, Choutuppal Mondal, Dist. Nalgonda, A.P. in favour of the complaint, by accused Nos. 10 and 11, The petitioner is in no way connected with accused Nos. 10 an 11 being M/s. KMR States & Buildings Pvt. Ltd. and K. Madhava Reddy respectively. 6. The alleged incident of representation, sale of land and execution of conveyance in favour of the complainant, all have been done in 1994 and no explanation has been given by the complainant so as to reason for the delay of about 17 years for filing the instant complaint. Continuation of the instant proceedings would be an abuse of process and the same ought to be quashed in the interest of justice. 7. The learned Metropolitan Magistrate, 8th Court, Calcutta illegally and without any application of judicial mind issued bailable warrant of arrest against the petitioner on the same date after issuing summons. The order of taking cognizance is without due application of judicial mind and is contrary to the statutory provisions as laid down in Rule 183 of the Calcutta High C....
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....ar Das, Etc. Etc. 23. (2006) 7 SCC 296 Popular Mutiah vs. State Represented by the Inspector of Police 24. AIR 1973 SC 786 Pratap vs. State of U.P., and 25. (1960) 3 SCR 388 R. P. Kapur vs. State of Punjab 11. On the other side, the learned Counsel for the opposite party referred to the following decisions against quashing of the proceedings being complaint cases pending in the learned court below: 1. (2010) 2 SCC 114 Dalip Singh vs. State of U.P. & Ors. 2. (2011) 6 SCC 145 Abhyudya Santha vs. Union of India & Ors. 3. (2011) 12 SCC 437 Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayan Reddy & Ors 4. (2013) 2 SCC 435 Udai Shankar Awasti vs. State of U.P. 5. AIR 2011 SC 20 Irridium India Telecom Ltd. vs. Motorola Incorporated & Ors. 6. (2012) 3 SCC 132 Lee Kun Hee vs. State of U.P. & Ors. 7. 2007 (4) Crimes . 447 (Cal) G. Selvaraj vs. State of W.B 8. (2004) 6 SCC 754 Harnam Singh vs. Everest Construction (Part 6) Co. & Ors. 9. (2000) 1 SCC 230 State of H.P. vs. Tara Dutt & Anr. 10. (1993) 3 SCC 609 Ajoy Agarwal vs. Union of India. 11. (2000) 8 SCC 20....
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.... whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. S. 420. Cheating and dishonestly inducing delivery of property - Whoever, cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. S. 406 - Punishment for criminal breach of trust Whoever commits, criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. S. 120B. Punishment of criminal conspiracy (1) Whoever, is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two ye....
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.... fixed for SA. Complainant is present. Examined the complainant on SA. Perused the documents filed. I find sufficient reason to raise strong & reasonable complicity against the accused persons viz. 1) M/s. MIMEC India Ltd., 2) Jagdish Singh, 3) Dipak Dutta, 4) S. Mukherjee, 5) C.R. Sridharan, 6) P.K. Sarkar, 7) A.K. Banerjee, 8) Sanjay Agarwal, 9) M.R. Vinod, 10) M/s. KMR Estates & Buildings Pvt. Ltd., 11) K. Madhava Reddy and 12) K.L. Devi in the alleged commission of offence punishable under Sections 406/418/420/120B IPC fixing 21.12.11 for SR. Register at once. Later: Perused the petition under Sections 204/87(a) Cr.P.C. for issuing W/A. against the accused persons for ensuring their appearance. Perused the case record and other materials on record. Perused the documents filed. I find sufficient reasons to make strong & reasonable complicity against the accused persons that they may abscond after receiving the summons. Considering the urgency, issue bailable warrant of Rs. 5000/- against the accused Nos. 2 to 12 (except 1 & 10) for ensuring their appearance before the court. O/C, Shakespear....
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.... case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support of thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused...." 21. In the instant case, the impugned order of the learned Magistrate dated 22.11.11 does not reflect that he applied his judicia....
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....d. on 28.3.2005. Form 32 is an authentic public document and there is no reason as to why the same cannot be looked into by the Hon'ble Court for the purpose of ascertaining the truth and substantial justice. The petition of complaint does not mention any specific overt act on the part of the petitioner. The complainant has deliberately suppressed material facts that would clearly show that the said dispute even, if any, is of civil nature and the petition of complaint has been filed just to exert undue pressure on the petitioner for harassment. Prior to filing the said petition of complaint, the complainant had pursued civil remedies and failed to obtain any relief. The complainant had filed a consumer complaint relating to the same transaction before the Calcutta District Forum (Unit I) which was numbered as CPF Case No. 342/98 and dismissed by order dated 11.9.98. These facts appear to have been suppressed. 24. The learned Counsel for the opposite party argued that whether the petitioner was the Director of the Company during 1992-94 or not is immaterial as he had conspired in an individual capacity. It was contended by the learned Counsel for the opposite party that the ....
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....t during oral submission mentioning that the petitioner was a party to the conspiracy during the period from 1992-94. 26. The decisions as reported in (2011) 3 SCC 351; (2010) 8 SCC 524 and (2012) 1 SCC 520 (all supra) demonstrate that it is admissible for the Hon'ble Court to look into Form 32 duly submitted with the Registrar of the Companies in the nature of the public document. As such strong reliance may be placed from which it will be clear that the petitioner was appointed the Director of the Company on 28.3.2005 but the transaction took place in 1992-94. 27. The learned Counsel for the opposite party contended that since the alleged offence is continuing offence, so, the role played by the present petitioner subsequently cannot be washed away. Learned Counsel for the opposite party argued that sadly the petitioner misunderstood the entire complaint. At paras 2, 3, 4, 7, 10, 11 and 12 there are specific allegations against the present petitioner. The opposite party did not implicate the petitioner oh his vicarious capacity. Rather specific and pinpointed allegations were made against the present petitioner. He made representation and conspired from the very beginni....
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....the Hon'ble Court that the Magistrate while ordering for issuance of summons did not record the role played by the Managing Directors which is a sine qua non for initiating criminal action against them and issuance of summons amounted to abuse of process, of law. Having considered the pros and cons of the matter, I am of the view that the attempt of the Opposite party to rope the petitioner is impliedly under the capacity of vicarious liability as he stepped only in 2005. 31. It was argued by the learned Counsel for the petitioner that the complainant cannot travel beyond their petition of complaint and the materials relied therein to prove their allegations. The opposite party wanted to connect the petitioner with the alleged offence committed in 1992-94 also, in addition, in his individual capacity and produced certain documents with its vacating application to make new allegations. Those documents were not produced by the complainant at the time of taking cognizance. The Hon'ble Court while dealing with the application under Section 482 of the Code of Criminal Procedure is to see whether on the basis of the statements made in the petition of complaint and on solemn af....
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....Court) 755. 34. The complainant alleges that there was a promise to develop the project by constructing schools, malls etc. therein, which was not done and thus the company and others have committed offences under Sections 406/418/420, IPC. The petition of complaint even if believed to be true speaks about the alleged non-fulfillment of the promise by accused No. 1 i.e. the company and the accused No. 10, who is the developer, to develop the project in which a plot of land was sold to the complainant. The allegation in the petition of complaint is at best a breach of contract entered into between the complainant and the accused person Nos. 1, 10 and 11, which is a dispute purely civil in nature. Reliance is placed on the judgment of the Supreme Court (3 Judge Bench) in the case of Anil Mahajan v. Bhor Industries Ltd., as reported in (2005) 10 SCC 228. 35. In the present case, it is to be noted that the petitioner was not associated with the said company at the beginning of the transaction and was not present in the said company in any capacity even when the transaction came to an end. The petitioner joined the company much later on 28.3.2005 and hence cannot be held to be lia....
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....e party submitted that Section 468 of the Code of Criminal Procedure provides the bar to take cognizance after lapse of the period of limitation. Section 420, IPC is punishable with 7 years. Hence, the bar under Section 468 Code of Criminal Procedure has no manner of application in view of Section 463 of the Code of Criminal Procedure which enumerates that the period of limitation in relation to the offences which may be tried together shall be determined with reference to the offence which is punishable with more severe punishment or as the case may be. Further, it was contended that since the Code of Criminal Procedure does not prescribe any bar of limitation regarding offence punishable with more than 3 years, question of limitation cannot arise in the present case. Even, if any delay at all, the opposition/position has every right to explain the same during trial. In this regard, reliance was placed on a decision reported in (2004) 6 SCC 754 (supra). 39. In the case-of Suresh v. Mahadevappa (supra) for delay of 10 1/2 years, the Hon'ble Supreme Court dismissed the complaint on the ground of latches on the part of the complainant. The complaint does not show that the peti....
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....Metropolitan Magistrate was within the jurisdiction of Russell Street, Calcutta. Claimants are at Calcutta. Property, money entrustments, false representations and deception etc. are within jurisdiction of Calcutta. Further, it was contended that circulation of the brochures, letters from the accused persons for marketing and other publications in print media are at Calcutta. In this regard, he referred to Sections 178/179/181 (4)/182 of the Code of Criminal Procedure. In support of the contention he cited before me the decisions as reported in (2007) 5 SCC 786; AIR 1963 Supreme Court 1620 (all supra). Having considered the submissions of both the sides in the light of the decisions and materials on record and the Sections of the Code of Criminal Procedure and Indian Penal Code referred to above, I am of the opinion that statutorily both the Courts of Calcutta and Andhra Pradesh have jurisdiction over this case. 43. The learned Counsel for the opposite party argued that the petitioner did not come with clean hands and misused the Office of the learned Advocate General of the State by making him appear before the Court for the accused which is violative of instructions given in L....
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....pact on the outcome of this revision. Accordingly, the revision is maintainable. 46. It is correct that times without number the Hon'ble Apex Court has alerted the High Court that the question of quashing of proceedings are to be resorted to in exceptional cases. But it is equally true that the Hon'ble Apex Court has not propounded any law showing that no proceedings can be quashed ever. Chaffs are required to be separated from the grains. Accumulation of chaffs without separation makes it a tough job to collect the grains. Improper allegation appearing ex facie only adds to the pendency of the cases, leaving chance of success doubtful. What is joy to one may be death to other. The duty of proper justice is to see that the joy should not unnecessary invite misery to the other side without reasonable and lawful ground. Usually, the continuance of a criminal case cannot be throttled, if sound and reasonable basis are prima facie available from the very inception. The proportionality of the allegations should be commensurate to the rationality of possible success. Offence, if any, committed by one cannot be passed to the successors. Offence means and includes an act origina....