Calcutta High Court (Appellete Side)
Ashok Ghosh vs The State Of West Bengal & Anr on 17 June, 2025
2025:CHC-AS:1046
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 2705 of 2019
Ashok Ghosh
Vs.
The State of West Bengal & anr.
For the petitioners : Mr. Sabir Ahmed
Mr. Sayak Ranjan Ganguly
Ms. Srijani Ghosh
Ms. Indrarni Majumder
For the State : Mr. Debasish Roy, Ld. PP
Ms. Anasuya Sinha, Ld. APP
Mr. Dattatreya Dutt
Heard on : 19.05.2025
Judgment on : 17.06.2025
Dr. Ajoy Kumar Mukherjee, J.
1. The only point raised for determination in the present application is
whether the instant criminal proceeding being English Bazar Police station
case no. 981 of 2018 dated September 14th, 2018 under sections
406/420/34 of the Indian Penal code is liable to be quashed in view of an
earlier criminal proceeding initiated by the present petitioner being English
Bazar police station case No. 99 of 2018 dated February 5th, 2018 under
sections 420/406 of the IPC (said two proceedings are hereinafter called as
subsequent FIR and former FIR respectively).
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2. Petitioners contention in a nutshell is that the petitioner was the
branch manager of L&T Finance Company Malda, and under his official
capacity he has lodged the abovementioned former FIR being English Bazar
P.S. case no. 99 of 2018 against one Basant kumar Podder under section
420/406 of IPC. In the said complaint, Tapasi Das (who is the complainant
of the subsequent FIR), Bijay Sahani and Ram Kumar Chowdhury have put
their signature and joined under the status of complainant. Petitioner
further contended that during the course of investigation said witness
Tapasi Das was examined under section 161 of the Cr.P.C. along with other
witnesses and after completion of investigation police have submitted charge
sheet in the said proceeding. About seven month after lodging the former
FIR, said witness Tapasi Das preferred an application under section 156 (3)
of the Code before the Court below implicating present petitioner along with
said Basant with almost similar nature of allegation and learned Magistrate
directed O/C English Bazar police to cause investigation treating the
petitioner of complaint filed by Tapasi Das as an FIR, which has given birth
to the instant proceeding under subsequent FIR being English Bazar police
station case no. 981 of 2018.
3. Being aggrieved by the aforesaid subsequent FIR, Mr. Sabir Ahmed
learned Counsel appearing on behalf of the petitioner submits that the
present petitioner when lodged the former FIR being case no. 99 of 2018,
has specifically stated that Basant Kumar Podder was working as a field
officer since 2015 and while working, he used to collect money from different
persons viz., Tapasi Das and others and he was entrusted to collect money
on behalf of the company and was supposed to submit the money with the
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company. Thereafter it transpired that despite collecting a sum of Rs.
14,27,521/- from Tapasi Das and others, said accused Basant did not
deposit the said amount of money with the company. He also submitted that
said accused Basant after mis appropriation of aforesaid money collected
from various persons has fled away. The company has also issued notice to
said Basant and thereafter terminated him from the service.
4. During the course of argument Mr. Ahmed specifically alleged that the
company was not made aware about the misappropriation of the money
collected by Basant and only when it was detected it could be learnt that
both Tapasi and Basant were in collusion with each other to mis appropriate
the money and since the petitioner has lodged the complaint against Basant
for taking appropriate legal action and as Tapasi is also involved in mis
appropriation of the money, she in order to save herself has come up with
the subsequent FIR with the allegation that the present petitioner and
Basant both are responsible for mis appropriation of the money collected
through her.
5. He strenuously argued that it is apparent that the subject matter of
mis appropriation of money is to the tune of Rs. 14,27,521/- and after
examining the available witnesses including said Tapasi Das and based on
documents available with the petitioners company it was found by the
investigation agency in connection with the former FIR that Basant Kumar
podder is responsible for committing criminal breach of trust and cheating
with the petitioner through L&T Finance company and for which charge
sheet have been submitted in connection with the former FIR against said
Basant Kumar Podder only. In this context he further submits that the
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amount involved in the second FIR lodged by Tapasi Das is also to the tune
of Rs. 14,27,521/- where Tapasi is the complainant and the sections put in
the said proceeding is Section 406/420/34 of the IPC with the self-same
police station, where the petitioner has been named as an accused and
alleged to have acted beyond his official capacity in collecting the money,
though investigation agency has already arrived at a conclusion while
submitting charge sheet in connection with the former FIR that Basant
Kumar Podder is the person who has collected the said amount of money
and mis appropriated the same. Accordingly Mr. Ahmed submits that Tapasi
while lodged the subsequent FIR has suppressed the earlier FIR and prayed
for investigation for committing mis appropriation of the money of the same
amount to the tune of Rs. 14,24,521/- though, she joined with the
petitioner herein in the former FIR as complaint against Basant and she was
well aware about the same while she lodged the subsequent FIR. In fact the
subsequent FIR being no. 981 of 2018 is an outcome of wreak vengeance by
the complainant Tapasi Das who is in collusion with Basant Kumar Podder.
6. Mr. Ahmed further argued that since the former FIR and subsequent
FIR are based on the self-same set of fact including the quantum of money,
the subsequent complaint is not maintainable in the eye of law. His further
contention is that the petitioner was working in the company as a territorial
manager and has no direct role in the field transaction and it is accused
Basant, who was the person responsible for collecting money and depositing
the same with the company and entrustment was with Basant and as such
criminal breach of trust has been alleged against Basant. In fact in the
subsequent FIR Tapasi has not made any specific allegation attributing,
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wrongful loss by Tapasi and wrongful gain by the present petitioner. The
facts and circumstances of the case clearly reveals that petitioner in
discharge of his official duty and with bonafide intention had blown the
whistle and invited the investigation on the funds misappropriated by
Basant and as such the subsequent FIR with the allegation of mis
appropriation with the self-same amount of money does not call for any
further investigation and if it is allowed to continue it would amount to
abuse of process of court and as such the same is liable to be quashed. The
said subsequent proceeding initiated by Tapasi implicating present
petitioner with said Basant is a malicious proceeding and even if the
contents of subsequent FIR is taken in its entirety as true, it does not
disclose any offence against the petitioner.
7. Opposite party/FIR maker of the subsequent FIR is not represented.
8. Mrs. Anasuya Sinha learned Counsel appearing on behalf of the state
submits that in the subsequent FIR, the real set of facts has been brought
forward by the opposite party no. 2 namely Tapasi Das since she as well as
29 other victims realized that they were being played by the petitioner and
the fog created by the petitioner herein has been finally removed. She
further submits that there are 64 victims who were cheated in the same
manner by the petitioner herein and said Basant and as investigation
progressed, the name of the other victims are coming forward. She further
submits that during investigation of the subsequent FIR, police recorded the
statement of some of the victims under section 164 Cr.P.C. wherefrom it is
clear that Basant as well as the petitioner went to the individual houses of
the victims to explain the scheme of things and thus by manipulating them,
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collected money. It also surfaced that petitioner himself was given money in
hand by many of the victims which clearly indicates present petitioner’s
involvement in the entire process of cheating.
9. Mrs. Sinha strenuously argued that the statement of co accused
Basant was recorded during investigation in connection with the subsequent
FIR and it transpired from such statement that he along with the petitioner
had opened the L & T Financial Office at Subhash Pally in order to lure the
illiterate, innocent, rustic villagers to provide loans to them and in turn
misappropriate the entire amount of money. Relying upon the Apex Court
judgment in State of Rajasthan Vs. Surendra Singh Rathore, reported in
2025 SCC Online SC 358, she submitted that the subsequent FIR is very
much maintainable if it pertains to larger issues of corruption affecting
larger interest of the society, which is the case of prosecution in the instant
proceeding. Accordingly quashing of the proceeding initiated by Tapasi at
this stage would cause great injustice to the victim and would affect the
investigation with regard to seizure of loan documents, recording of
statements etc. Moreover, there are statements of co accused who have
confessed to have committed the crime along with the petitioner which
cannot be ignored at this stage. There are sufficient materials against the
petitioner to proceed against him and if at this stage investigation has been
thwarted it would cause injustice to the large number of victims who are
prey to this crime and who belong to the poor downtrodden section to the
society and have lost their hard earned money in the scheme of the
petitioner as well as Basant and accordingly State has prayed for dismissal
of the instant revisional application.
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Decision
10. On bare perusal of the two FIR, it appears that the allegation in the
former FIR lodged by the present petitioner citing Tapasi along with other
persons as co-complainant, pertains to the entire allegation against one
Basant Kumar Podder who was allegedly entrusted to collect money on
behalf of the company from various persons and to deposit the same to the
company and it transpired that said Basant collected money to the tune of
Rs. 14,27,521/- from Tapasi Das but he did not deposit the same to the
company and had fled away without reporting anything to the branch and
had remained absent from attending the branch on and from 13.12.2016. It
has been further alleged in the said former FIR that present petitioner on
behalf of the company had called him several times to respond but he failed
to answer properly and for which there are sufficient reasons to believe that
said Basant has fled away with the said amount of money which he has
used for his personal gain and thereby cheated said Tapasi Das and the
company at the same time. In the subsequent complaint lodged in the form
of an application under section 156 (3) of Cr.P.C., and which was
subsequently treated as subsequent FIR, it is alleged by said Tapasi that on
05.08.2016 and on different dates the complainant Tapasi had collected Rs.
14,27,521/- and in the presence of both the accused persons i.e. the
petitioner (who is accused no. 1) and Basant (who is accused no.2) she had
handed over said amount of money of Rs. 14,27,521/- to accused Basant,
who accepted the same. It is further alleged that both the said accused
persons have mis appropriated the said amount of Rs. 14,27,521/- but the
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present petitioner in order to save himself, had lodged the former FIR
against Basant Kumar Podder only.
11. Accordingly it is clear that the allegation levelled in both the FIRs are
the same and the alleged mis appropriated amount is also the same but in
the subsequent FIR the only information added is that said Basant in
collusion with the present petitioner has mis appropriated the said amount.
However, the result of investigation in connection with the former FIR
culminated into a charge sheet against Basant Kumar Podder only and it
also appears from the case diary that during investigation of the former FIR,
Tapasi made statement before police under section 161 Cr.P.C. which also
corroborates her statement with the subsequent FIR lodged by her that she
handed over Rs. 14,27,521/- to Basant Podder in 2016 and in the said
statement made under section 161 Cr.P.C. she had not implicated the
present petitioner anywhere. However, it appears that during investigation of
subsequent FIR lodged by Tapasi she has made a statement during hearing
of instant proceeding before Magistrate on 03.01.2025 i.e. 7 years after her
aforesaid statement that she had handed over 14,27,521/- to present
petitioner Basant Kumar Podder in presence of petitioner and one Sandip
Pandey, who conducted a meeting at her house and brought her to
Kingsway with the assurance of the payment of money and also asked her to
put signature on blank paper.
12. Be that as it may let us come back to the question as to whether in
view of aforesaid facts and circumstances of the case the subsequent FIR
lodged by aforesaid Tapasi Das is sustainable in the eye of law or not. Such
issue has been elaborately discussed by the Apex Court T.T. Antony Vs.
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State of Kearla and others , reported in 2001 SCC (cri) 1048 wherein
the court held in paragraph 20 as follows:-
20. From the above discussion it follows that under the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only
the earliest or the first information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC. Thus there can be no
second FIR and consequently there can be no fresh investigation on receipt of
every subsequent information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more cognizable offences. On
receipt of information about a cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the FIR in the station house
diary, the officer in charge of a police station has to investigate not merely the
cognizable offence reported in the FIR but also other connected offences found
to have been committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section 173 CrPC.
13. In the instant case the allegations in both FIR is about defalcation of
money amounting to Rs. 14,27,521/-. In the subsequent FIR only an
additional information in respect of the same cognizable offence has been
supplied that the principle accused Basant defalcated said amount of money
in collusion with present petitioner and therefore, such subsequent
information in respect of same offence over self-same occurrence/incident,
fresh investigation on receipt of such subsequent information is barred. In
the former case the investigating agency has already concluded investigation
over self-same occurrence/self-same offence which culminated into charge
sheet against Basant Kr. Podder.
14. In Bijay Kr. Ghai and others Vs. State of West Bengal and others
reported in (2022) 7 SCC 124 the Apex Court made it clear that barring
situations in which a counter case is filed a fresh investigation or a second
FIR on the basis of same or connected cognizable offence would constitute
an abuse of the statutory power of investigation and may be a fit case for
quashing the subsequent proceeding. Paragraph 16 of the said judgment
laid down the ratio which is as follows:-
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The legality of the second FIR was extensively discussed by this Court in T.T.
Antony v. State of Kerala [T.T. Antony v. State of Kerala, (2001) 6 SCC 181 :
2001 SCC (Cri) 1048] . It was held that there can be no second FIR where the
information concerns the same cognizable offence alleged in the first FIR or
the same occurrence or incident which gives rise to one or more cognizable
offences. It was further held that once an FIR postulated by the provisions of
Section 154CrPC has been recorded, any information received after the
commencement of investigation cannot form the basis of a second FIR as
doing so would fail to comport with the scheme of the CrPC. The Court further
held that barring situations in which a counter-case is filed, a fresh
investigation or a second FIR on the basis of the same or connected cognizable
offence would constitute an “abuse of the statutory power of investigation”
and may be a fit case for the exercise of power either under Section 482CrPC
or Articles 226/227 of the Constitution of India.
15. There is no dispute over the proposition of law as cited by the State
that second FIR is permissible if it pertains to larger issue of corruption
affecting larger interest of the society but here said ratio has got no
application in view of the fact that issue of corruption affecting larger
interest of society was also involved in the former FIR lodged by the present
petitioner. What has been sought to be incorporated as added information in
the second FIR is that over the issue of corruption affecting larger interest of
the society, not only accused Basant had played the role but also petitioner
herein was involved with the alleged crime with Basant. Infact in paragraph
9 of Surendra Singh Rathore Case (supra) the supreme Court laid down
the principle where the second FIR is permissible, which is as follows:-
9. From the above conspectus of judgments, inter alia, the following principles
emerge regarding the permissibility of the registration of a second FIR:
9.1 When the second FIR is counter-complaint or presents a rival version of a
set of facts, in reference to which an earlier FIR already stands registered.
9.2 When the ambit of the two FIRs is different even though they may arise
from the same set of circumstances.
9.3 When investigation and/or other avenues reveal the earlier FIR or set of
facts to be part of a larger conspiracy.
9.4 When investigation and/or persons related to the incident bring to the
light hitherto unknown facts or circumstances.
9.5 Where the incident is separate; offences are similar or different.
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16. From the case in hand it is palpably clear that the subsequent FIR
lodged by Tapasi is neither a counter complaint nor a rival version of set of
fact in reference to which the former FIR has already been registered and
has already been culminated into a charge sheet. It is also crystal clear from
the subsequent FIR that ambit of the two FIRs, is also not different in as
much as scope of both FIR is to make investigation about syphoning of
money amounting to Rs. 14,27,521/-. Moreover the second FIR does not
disclose any new set of facts to be part of larger conspiracy as defalcated
amount and the alleged cheated persons are the same in both FIR and
second FIR does not bring any unknown fact or circumstances save and
except the information, which complainant Tapasi sought to incorporate in
the second FIR that Basant and the present petitioner are in collusion with
each other have defalcated the above mentioned amount.
17. In fact the statement of Tapasi made in the FIR after closure of
investigation in respect of former FIR is nothing but a statement falling
under 162 Cr.P.C. In fact the allegations about defalcation of the money is
the same. In Babubhai Vs. State of Gujarat, reported in (2010) 12 SCC
254 the Apex Court has dealt with the issue of judging ‘sameness’ of two
FIR and has held in paragraph 21 as follows:-
21. In such a case the court has to examine the facts and circumstances
giving rise to both the FIRs and the test of sameness is to be applied to find
out whether both the FIRs relate to the same incident in respect of the same
occurrence or are in regard to the incidents which are two or more parts of the
same transaction. If the answer is in the affirmative, the second FIR is liable
to be quashed. However, in case, the contrary is proved, where the version in
the second FIR is different and they are in respect of the two different
incidents/crimes, the second FIR is permissible. In case in respect of the same
incident the accused in the first FIR comes forward with a different version or
counterclaim, investigation on both the FIRs has to be conducted.11
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18. Here both the FIR relates to the same incident in respect of same
occurrence and admittedly the subsequent FIR is not on the basis of any
different incident or on different crime and as such second FIR is not
permissible. There is a difference “same incident in respect of the same
offence” and the “same kind of offence”. In cases where the second FIR is
filed in connection with commission of the same offence, the second FIR is
liable to be quashed through the taste of ‘sameness’. Whereas the taste of
sameness is not applicable where similar kind of offences are committed. It
is because the offence is in itself can be different though they may be of
similar nature.
19. In view of aforesaid discussion I am convinced to conclude that the
subsequent FIR lodged by Tapasi over the self-same crime involving self-
same allegation of defalcation of an amount of money to the tune of
Rs.14,27,521/- is liable to be quashed.
20. CRR 2705 of 2019 thus stands allowed.
21. In view of above the criminal proceeding being English Bazar Police
station case no. 981 of 2018 dated September 14th, 2018 under sections
406/420/34 of the Indian Penal code is hereby quashed. However this order
of quashment will not preclude the investigating agency of the former FIR
from seeking leave of the court in connection with English Bazar Police
station case no. 99 of 2018 dated 05.02.2018, for making prayer for further
investigation and for filling a further report under section 173(8) of Cr.P.C.
before the competent court in the said case.
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Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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