TMI Blog2021 (5) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... is that though there is civil remedy available in connection with a commercial transaction, but there is no legal impediment to launch a separate prosecution under Section 138 of N.I. Act, subject to the fulfilment of the ingredients constituting such offence, which is indeed different from the instant one, where fraudulent and dishonest intention on the part of the accused/petitioner are the essence of offence, complained of. Therefore, the instant prosecution is very much permissible and with the sanction of law. The instant revisional application fails being without any merits. - CRR No. 1754 of 2020 With CRAN 1 of 2021 - - - Dated:- 9-4-2021 - HON BLE JUSTICE SUBHASIS DASGUPTA. For the Petitioner :Mr. Sabyasachi Banerjee, Adv. Mr. Sanjoy Sengupta, Adv. For the Opposite Party :Mr. Sourav Chatterjee, Adv. No. 2 Mr. Aditya Tiwari, Adv. For the State :Mr. Saswata Gopa Mukherjee, Ld. P.P. Mr. Madhusudan Sur, Adv. Mr. Arijit Ganguly, Adv. Subhasis Dasgupta, J:- This is for quashing of a proceeding in connection with G.R. Case No. 6166 of 2020, pending before the court of learned Additional Chief Judicial Magistrate, Barrackpore relatable to Khardah Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crux of contention raised against the petitioner/revisionist. Mr. Sabyasachi Banerjee, learned advocate representing the petitioner, submitted that it would be very difficult to infer any fraudulent or dishonest intention, since beginning the transaction, from the conduct of petitioner with others that the inter-corporat deposit had been taken with an ulterior purpose and without fraudulent or dishonest intention on the part of petitioner, the alleged offence would be incomplete. Mr. Banerjee never disputed with amount, said to have been advanced to the petitioner/accused, as an inter-corporate deposit. Referring some of the bank statements annexed with the instant revisional application, Mr. Banerjee frankly submitted that the petitioner had even deposited interest more than once to the creditor/de-facto complainant company against such inter-corporate deposit in his favour. According to Mr. Banerjee, it was due to the onset and impact of COVID- 19, the petitioner committed failure without any deliberate intention to honour the agreement by liquidating the amount within the stipulated period of time. Mr. Banerjee described the pending prosecution to be nothing, but an attempt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the part of petitioner at the time of commission of offence, the continuance of the proceeding would be absolutely illegal. Reiterating the same stand, as already advocated by Mr. Banerjee, profit was again sought to be derived from a decision reported in (2019) 9 SCC 148 rendered in the case of Satishchandra Ratanlal Shah Vs. State of Gujrat Anr . to contend that mere inability of the petitioner to pay off loan amount cannot give rise to a prosecution for cheating, unless fraudulent or dishonest intention was shown right at the beginning of transaction. More so, mere breach of promise ipso facto would not constitute an offence of criminal breach of trust without there being a clear case of entrustment. The ingredients requiring constitution of offence, according to Mr. Banerjee, was absolutely lacking in the instant case. Mr. Saswata Gopal Mukherjee, learned Public Prosecutor, representing State challenging the submission of Mr. Banerjee replied that the proposed quashment should not be allowed at this stage bearing in mind that the case was at the investigation stage. Mr. Mukherjee submitted that on 18th March, 2020, inter-corporate deposit was debited from the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de-facto complainant, was relatable to a commercial transaction, or breach of obligation or contract even. Mr. Chatterjee was of the view that the tests of such situation is whether the allegations in the complaint disclose a criminal offence or not. Upon applying such tests, according to Mr. Chatterjee, the instant prosecution should be permitted to be continued. Mr. Chatterjee while countering the submission of Mr. Banerjee, admitted frankly that there had been an independent prosecution already instituted against the accused petitioner under Section 138 of N.I. Act, but that would not itself refrain the complainant from prosecuting the petitioner in criminal jurisdiction under Sections 406, 420 I.P.C. Profit was sought to be obtained by Mr. Chatterjee from a decision reported in (2012) 9 SCC 460 delivered in the case of Amit Kapoor Vs. Ramesh Chander Anr . to contend that the allegations made in the complaint together with documents annexed therewith predominantly constitued a civil wrong with an element of criminality conspicuously, which could be easily identified without embarking upon an inquiry of the materials placed on record. As regards the authority of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) 102. (1) Where the allegations made in the first information report or 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 accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 of Negotiable Instruments Act is also pending against the petitioner. The settled proposition of law is that though there is civil remedy available in connection with a commercial transaction, but there is no legal impediment to launch a separate prosecution under Section 138 of N.I. Act, subject to the fulfilment of the ingredients constituting such offence, which is indeed different from the instant one, where fraudulent and dishonest intention on the part of the accused/petitioner are the essence of offence, complained of. Therefore, the instant prosecution is very much permissible and with the sanction of law. A distinction is always perceived to exist between a mere breach of conduct, and the alleged offence of cheating. It is the sole case of the petitioner that the loan amount could not be liquidated because of impact of COVID-19, though attempts were made on coulpe of occasions to deposit the interest component of the principal amount of debt. The subsequent conduct of petitioner is not always the sole test of offence of cheating. When the investigation is at its initial stage, it is very hard to ascertain the required fraudulent and dishonest intention on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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