TaxTMI 
TaxTMI 
2023 (2) TMI 1471
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....respect of each of them is required for the purpose of this case. There are two sets of accused persons who are associated with two different artificial persons. Accused no.1 in the petition of complaint is M/s Dee Power Corporation a partnership firm with whom Soumik Ghosh (Accused No.2), Kaushik Ghosh (accused no.3) and Sanjay Shah (accused no.4) is associated. On the other hand accused no.5 is M/s Greaves Cotton Ltd. a company with whom Basant Kumar (accused no.6), Sumit D. Burman (accused no.7), Ramendra Nath Dey (accused no.8) and Avishek Paul (accused no.9) is associated. The petitioners before this Court in the revisional application are petitioner no.1 (accused no.5 - Company namely, Greaves Cotton Ltd.), petitioner no.2 (accused no.6 - General Manager, Auxiliary Power Business of petitioner no.1) and petitioner no.3 (accused no.9, Manager, Sales & Marketing, Auxiliary Power Business of petitioner no.1). The allegations as set out in the petition of complaint, in brief are as follows: (i) The complainant company, M/s RNT Plantations Limited is engaged in plantation and manufacture of tea and other related business and has earned substantial reputation and goo....
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.... were responsible and authorized officers of accused no.5 in Eastern India. The accused nos. 7, 8 and 9 represented that they only sell their products through their authorized agents and confirmed that accused no.5 is their distributor/authorized agent in Eastern India and the purchase order is to be placed by the complainant company with the accused no.1 and that all financial transactions and supply of the material shall be executed by accused no.1. The accused nos. 6, 7, 8 and 9 as alter ego of the accused no.5 also promised to manufacture the said machine adhering to all the satisfactions and to promptly deliver the same without any default. Based upon the representation and assurances made by the responsible persons of accused no. 1 and accused no.5 the management of the complainant company reposed full trust, faith and confidence upon them and agreed to purchase the said machine manufactured by the accused no.5 through the accused no.1. (v) The offer letter was issued by the accused no.1 being DPC/SS/1089/2018-19 dated 11/08/2018 confirming supply of 'Greaves Power' brand 400 KVA Silent D.G. Set with Microprocessor based Manual Control Panel together with an electron....
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....ur of the complainant company. It was represented at the time of handing over the cheque that the same would surely be honoured being represented within its validity period. The said cheque on being placed for encashment returned dishonoured by the drawee bank with the remarks "Drawers signature not as per mandate". The reason of dishonour of the said cheque clearly reflects the dishonest design of the accused persons to cheat the complainant company from the very inception and also clearly unveils that the accused no.1 had intentionally issued the said cheque without properly getting it signed as per mandate given to their bank, with the knowledge that the same would be returned dishonoured being placed by the complainant company. When the complainant company informed the accused nos. 1, 2, 3 and 4 about such dishonour of cheque, the accused persons neither returned the said amount lying entrusted to them nor gave any reply and went beyond reach and contact of the officers of the complainant company. (vii) The officers of the complainant company tried to contact the accused nos. 6, 7, 8 and 9 over the said issue but the said accused persons also went beyond reach and cont....
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....opolitan Magistrate, 13th Court, Calcutta. Drawing the attention of the Court to the order dated 03.12.2019 learned Advocate pointed out that the learned CMM, Calcutta recorded non payment of loan advanced by financial institutions/bank and the learned Metropolitan Magistrate, 13th Court Calcutta issued process under Section 138/141 of the N.I. Act and there was complete non application of mind by both the learned Magistrates who allowed the proceedings to continue against the present petitioners. Learned Advocate for the petitioners submitted that the allegations in the petition of complaint was for the purpose of issuing process under Section 420/418/406/120B of the Indian Penal Code and none of the offences as complained of do apply so far as the petitioners are concerned. The dealing in respect of purchase of 'Greaves Power' brand 400 KVA Silent D.G. Set with Microprocessor based Manual Control Panel was absolutely done with the accused no.1 and its representatives. The present petitioners are representatives of the manufacturing company with whom there was no financial transaction. The authorised agent/dealer of the petitioner no.1 is entrusted to sell the product and for that....
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.... non-delivery of the machine as alleged. In fact the requirement of the DG Set was of the complainant company and they were aware that such purchase is to be made from the accused no.1. The accused no.1 and the accused no.5/petitioner no.1 are separate and independent entity. The factum of entrustment which has been emphasized for the purpose of which Section 406 of the Indian Penal Code has been invoked in the petition of complaint was because of the advance and such advance payment as is revealed from the petition of complaint was paid and received by the accused no.1 and the petitioner no.1 and/or its authorized officers are no way responsible for the same. In order to attract the provision of conspiracy in such a case where substantive offences complained of are under Section 420/418 and 406 of the Indian Penal Code, common meeting of minds of atleast some responsible officers of the petitioner no.1 were to be reflected, which resulted in any wrongful loss of the complainant company. Learned Advocate reiterated his submission that learned Chief Metropolitan Magistrate did not apply his mind while taking cognizance and the learned Metropolitan Magistrate, 13th Court, Calcutta al....
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....of the Code and for that the case should be remanded to the learned Magistrate. To this effect attention was drawn to National Bank of Oman -Vs. - Barakara Abdul Aziz & Anr. reported in (2013) 2 SCC 488 wherein under similar circumstances, the Hon'ble Supreme court of India set aside the judgment of the Hon'ble Bombay High Court which quashed the proceeding observing that as the learned Chief Judicial Magistrate failed to carry out an inquiry or pass an order of investigation as contemplated under Section 202 of the Cr.P.C. the matter should have been remanded. Paragraph 12 of the said judgment is set out as follows: "12. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 CrPC. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 IPC. The CJM will pass fresh orders after complying with the procedure laid down in Section 202 CrPC, within two months from ....
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....gent reasons on the basis of which it has said that the Chairman is not shown to be associated with the impugned publication. Thus, we allow the second appeal as well and direct the learned Magistrate to hold the same inquiry as directed qua A-1 and apply his mind as to whether notice against A-1 and A-2 needs to be issued or not. No orders as to costs." Attention of the Court was drawn to Mehmood Ul Rehman -Vs. - Mohammad Tunda & Ors. reported in (2015) 12 SCC 420 wherein according to the learned counsel the Hon'ble Supreme Court was pleased to observe that the order of process under Section 204 of the Cr.P.C. was not in accordance with law and has been detected. It would not be fit and proper for the High Court in quashing the entire proceeding, the same should have been remanded back for fresh consideration. Paragraph 7 of the judgment is relevant which is set out as follows: "7. Though the learned Senior Counsel made an attempt to canvas on the merits of the matter as well, we do not find it necessary and it is not proper also at this stage to deal with the same. However, the contention that the Magistrate has not even formed an opinion as to whether the allegations....
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....posite party learned advocate for the petitioners submitted that the amendment in Section 202 of Cr.P.C. was never meant for bolstering up a case by the complainant on being sent back by a higher forum. To that effect reliance was placed on Aroon Poorie (supra) paragraphs 2, 3 and 4 of the said judgment relied upon by the petitioner are set out as follows: "2. The above apart, from the materials on record it appears that the appellant-accused in the present appeals have and maintain residence beyond the local jurisdiction of the learned trial court. Under the provisions of Section 202(1) CrPC, it was, therefore, mandatory for the learned Magistrate to hold an inquiry either by himself or direct an investigation by the police prior to the issuance of process. Admittedly, the same had not been done. If the aforesaid mandatory provisions of Section 202(1) CrPC had not been followed, the learned trial court would not have the jurisdiction to issue process/summons as has been done. 3. We have also taken note of the complaint petition and the averments made therein and the necessary ingredients to attract the offence(s) alleged which is under Section 295-A read with Sec....
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.... as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited v. K.M. Johny, as it refers to earlier case laws in copious detail. In Thermax Limited (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required ....
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....ty, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued." Primarily on a reading of the aforesaid set of judgments it can be held that if in a case where the complaint itself fails to make out any offence, added to that the examination under Section 200 of the Cr.P.C. also do not attract any culpability to an accused or accused persons so named, mere non compliance of Section 202 of Cr.P.C. would never deter the High Court from exercising its inherent powers in such cases where persons are asked to face a criminal trial without any substantive cause of action being made out. In the present case the agreement was entered between accused no.1, namely, Dee Power Corporation the terms and transactions were made with the Accused No.1, Dee Power Corporation, even the advances were made to the accused no.1. Accused no.5 is the manufacturing company whose authorised agent....