TMI Blog2013 (8) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 11. But, subsequently, no development was carried out. 3. When the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court (Rules), 1985 and hence is bad in law. 8. It was further contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjab 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 203 State of Kerala vs. P. Sugatham. 12. (2004) 12 SCC 336 Damodar vs. State of Rajasthan 13. 1992 CrLJ 792 Balaram Singh vs. Sukhwant Kaur 14. (2001) 8 SCC 645 M. Krishnan vs. Vijoy Singh Ors. 15. (2006) 1 SCC 627 Mohd. Yousuf vs. Smt. Ataq Jahan 16. 1994 (1) Crime 195 Kamala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake, 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 years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever, is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both. 15. The initial statement gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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, Shakespeare Sarani is hereby directed to execute the W/A. Fix 21.12.11 for ER of W/A. Register at once. 16. The main contention of the learned Counsel for the petitioner was that i) the complaint does not disclose ingredients of Section 406/418/420, IPC read with Section 120B, IPC and ii) it is the duty of the learned Magistrate to examine whether on the basis of the averments made in the complaint as it stands a prima facie case has been made out or not for taking cognizance. 17. On the other hand, the learned Counsel for the opposite party argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 judicial mind, when all the ingredients as have been explained in the petition of complaint by the Opposite Party are not available on the statement on SA. 22. On the other hand, the learned Counsel for the Opposite Party submitted that the alleged offences are continuing offences and irrespective of the date of joining of the petitioner in the company his role is established. In support of the contention the learned Counsel cited before me the decisions as reported in the case of State of H.P. v. Tara Dutt; Ajay Agarwal v. Union of India; State of Kerala v. P. Susatham; D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 entire accounts and the Director's report has been signed by the petitioner as Director on all pages for the financial year ended on 31.3.05, filed together with annual accounts of accused No. 1 company which is a public document under Section 74 of the Indian Evidence Act and the Companies Act. So, the connection of the petitioner is established. But the petitioner stated that it does not indicate involvement in the day to day activities of the business . So, it was contended that the petitioner resorted to falsehood. In affidavit in connection with a 'Vacati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 beginning. He had dealt with the transaction with the opposite parry (immaterial whether he was a Director of accused No. 1 or not) while investments were made and throughout the period till filing of the revision petition when the investments are held back without returning money or delivering developed land as promised and the lands in question being resold. Purported sale deeds were executed by the accused persons but the opposite party was never handed over any piece of land or at all contacted for handing over of any so-called land. The accused persons went on jointly represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond 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 affirmation and the documents, if any, produced before the learned Magistrate for reasonable benefit, satisfied as to existence of the case. In the present case, there is no direct connection of the present petitioner with the alleged offence during the period of 1992-94. The complainant relied on the report of the Director of MIMEC India Ltd. for the year ending on 31.3.2005 but those documents were not filed before the learned Magistrate and for the first time has been filed before the Hon'ble Court. Moreover, the annual report was incomplete and the complainant filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract 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 liable for the offence of cheating which was allegedly committed in 1992-94. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in the case of V.P. Shrivastava v. Indian Explosives Ltd. as reported in (2010) 10 SCC 361. Mere failure to keep a promise will not tantamount to an offence under Section 420, IPC. Reliance is placed on the Supreme Court judgment in the case of S.W. Palanitkar v. State of Bihar (supra). 36. The learned Counsel for the opposite party contended that behind the back of investor, the land has been sold to a third party. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner was in any way involved in any transaction between accused No. 1 and M/s. Sri Sri Developers Ltd. or any other 3rd Party during last 17 years. 40. It was contended by the learned Counsel for the petitioner that the complaint should be quashed on the ground of lack of jurisdiction of the learned Magistrate, Calcutta/learned Metropolitan Magistrate, 8th Court, Calcutta in taking cognizance of the complaint. Section 482 of the Code of Criminal Procedure inter alia states that any offence which includes cheating may, if the deception is practiced by means of letters or tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 Legal Remembrancer Manual, 2nd Edn., 1971, Rule 23 wherein the limitation of the learned Advocate General as a condition of his service is he is debarred from advising and holding brief against the State, defending accused persons in criminal prosecution etc. So, the learned Counsel for the opposite party argued that the revision is not maintainable as the State of W.B. has not been made party but the learned Advocate General prayed for stay of warrant and proceedings. Reliance was put on the decision as reported in (2013) 2 SCC 435 (supra). 44. On the other hand, the learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 originating from a particular point of time and ending also to a definite point of time. Offence cannot be truncated. The mens rea of conspiracy cannot develop in the mid-course of alleged offence. A subsequently born baby cannot be penalized for the offence committed by his father. Criminal offence is inherently associated with only the wrong doer and none else. Offence and accused are two sides of a coin. One does not supplant the other. 47. The main transaction of land and alleged cheating took place in Hyderabad. So, the Court expects that at least an opinion or evidence from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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