TMI Blog1972 (12) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Chief Presidency Magistrate, Calcutta, on November 21, 1967, on the basis of which the four accused persons, namely, Paramanada Agarwalla, Madan Mohan Gour, Jhumermal Agarwala and Shanti Bose, were required to answer charges under section 120B/409 and 409 IPC. These persons will be referred to as accused Nos. 1, 2, 3 and 4 respectively. The case was later on transferred to the Presidency Magistrate, 7th Court, Calcuttta, for disposal. The 7th Presidency Magistrate, after recording the evidence of ten prosecution witnesses, framed a charge on September 7, 1968, under section 120B/409 against all the four accused and a charge under section 409 IPC against accused Nos. 1 to 3. The allegations in the complaint were briefly as follows The complainant was a partner of M/s. Kalinga Bakery Biscuit Confectionery and Mineral Water Company of Rourkela in Orissa and was granted actual users' import licence on November 18, 1966, by the Joint 'Chief Controller of imports and Exports, Calcutta, for import of skimmed milk powder and other commodities upto the value of ₹ 60,000/-. This commodity was for the purpose of being used in the licensee's factory. The complainant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed for a decree in the sum of ₹ 26,744.87. They also asked for various interim reliefs. The complainant, during the pendency of the proceedings before the Chief Presidency Magistrate, came to know that all the accused persons had taken away on August 19, 1967, the entire quantity of 525 bags of milk powder, which had been imported on his account without his knowledge, consent or instructions and that they had also mis-appropriated about 200 bags before the police could raid their premises. On an ascertainment of these facts, the complainant withdrew his original complaint with the permission of the court and instituted the present complaint against all the accused. On receipt of the complaints the Chief Presidency Magistrate ordered a judicial enquiry to be held by the 9th Presidency Magistrate. In the judicial enquiry held by the latter, the complainant had brought on record various documents to substantiate his allegations. As a result of the enquiry, the Chief Presidency Magistrate on December 26, 1967, summoned all the four accused persons under sections 120B/409 and 409 an transferred the case for disposal to the 7th Presidency Magistrate, The learned Magistrate, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssal of the, first complaint operates as a bar to these proceedings. However, this contention also was rejected by the High Court on the ground that an order of dismissal under section 203, Criminal Procedure Code, is no bar to the entertainment of a second complainant on the similar facts, though such a complaint can be entertained, only under exceptional circumstances. The High Court ultimately held that the present proceedings are not unwarranted of unable in view of the first order of discharge in the circumstances of the present case. The third contention that was taken before the High Court by the accused was that the factum of entrustment has not been established by clear and cogent evidence and as such, there cannot be any breach of trust, for less any dishonest conversion leading to a conspiracy. The learned Judge held that it is difficult, at that stage, on the evidence adduced, to hold that there has not been any entrustment, especially as the whole case depends upon on appreciation of the entire evidence for coming to a conclusion one way or the other. On this reasoning, this contention also was rejected. It must be noted that the third contention was an invitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting their maintainability. The High Court has referred in this case to a decision of the Calcutta High Court which, in our opinion, has no bearing. The decision is in Sunder Das Loghani v. Farun Rustom Iran(1). That was a case of discharge of the accused under section 253 (2) of the Criminal Procedure Code, as the Magistrate was of the opinion that the complainant had deliberately suppressed several facts and that the complaint was a thoroughly dishonest one. in the end the High Court has held that the Present Proceedings are bad and improper and, therefore, they have to be quashed. The fifth and the last contention taken on behalf of the accused relates, as the High Court itself states, to the merits of the case and is based Upon the evidence on record, both oral and documentary. After a consideration of certain items of evidence, the learned Judge has held that the evidence on record rules out any offence of breach of trust. or a conspiracy to commit the same, by the accused persons and, therefore, the present Proceedings are not maintainable and have to be quashed. A representation appears to have been made on behalf of the complainant that a large volume of evidence, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd contention, embarked upon a fairly elaborate appreciation of the evidence on record and ultimately came to the conclusion that the evidence on record does not establish any breach of trust, or a conspiracy to commit the same, by the accused persons. Regarding the fourth contention, which also has found acceptance at the hands of the High Court, it relates to what according to the accused was, suppression of certain material facts by the complainant in his two complaints. In our opinion, the High Court was not justified, in the particular circumstances of this case, in quashing the charge, as well as the entire proceedings that had taken place before the Magistrate. it is not as if the accused had moved the High Court at the earliest stage when the Presidency Magistrate issued sommons to them. Nor had they approached the High Court when charges were framed against them. The accused had 'been summoned, after a judicial enquiry by the Chief Presidency Magistrate on December 26, 1967, under sections 120B/409 and 409 IPC. Before the Magistrate, the evidence. oral and documentary, was adduced by the complainant in the presence of the accused. On a consideration of such materials, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in to be examined. So far as we could see, the' accused have not challenged the order of the Magistrate dated February 24, 1969, allowing the prosecution to examine Satanarayan Agarwalla and an officer of the Directorate of Industries, Government of Orissa; nor have they challenged the order dated March 7, 1969, of the Magistrate allowing the prayer of the prosecution for examining Durga Dutt Chowdhury as a court witness under section 540. In holding that the proposed examination of Durga Dutt Chowdhury, as a court witness, will pre-judice the accused, the High Court has not given due consideration to the decision of ;this Court in Jamatraj Kewalji Govani v.The State of Maharastra(1). It is not clear whether the High Court passed the order, in question, under section 561A or under section 439 of the Code. of Criminal Procedure. This Court has laid down the principles in R.,P. Kapur v. The State of Punjab(2), which have to beborne in mind by the High Court when its inherent jurisdiction under section 561A is invoked for quashing the proce edings pending before a subordinate court. It has been 'emphasised that the inherent jurisdiction could be exercised to quash proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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