Calcutta High Court (Appellete Side)
Biswajit Dutta vs The State Of West Bengal & Anr on 27 January, 2025
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1106 of 2022
Biswajit Dutta
VS.
The State of West Bengal & Anr.
For the Petitioner : Mr. Kamalesh Chandra Saha,
Mr. Samannya Saha,
Mr. Mishuk Saha.
For the State : Mr. Debasish Roy, Ld. PP
Mr. Bitasok Banerjee,
Ms. Puspita Saha.
For the Opposite Party No. 2 : Mr. Sabyasachi Banerjee, Sr. Adv.
Mr. Anirban Dutta,
Mr. Sachetan Ghosh.
Hearing concluded on : 20.01.2025
Judgment on : 27.01.2025
Page 2
SHAMPA DUTT (PAUL), J. :
1. The present revisional application has been preferred praying
for quashing of the First Information Report as well as the
entire proceeding in Baguiati P.S. Case No. 227 of 2021 dated
08.05.2021 under Sections 420 /408 /477A /403 /468
/120B /34 of the Indian Penal Code being G.R. No. 1593 of
2021.
2. The allegations in the written complaint leading to the
proceedings in the present case is that the complainant in the
present case initiated three cases one after another against
the accused persons being (i) Baguiati P.S. Case No. 194 of
2021, (ii) Baguiati P.S. Case No. 227 of 2021 (against the
present petitioner) and (iii) Baguiati P.S. Case No. 456 of
2021 on the self-same allegations and self same cause of
action.
3. The three cases ended in a common charge-sheet being
charge sheet no. 76 of 2023.
4. The specific allegations against the petitioner herein, in the
charge-sheet submitted is that he furnished a photocopy of
income tax return for the assessment year 2021 & 2022 and
also gave a statement in respect of his account.
5. The petitioner herein and his family members have duly co-
operated with the Investigating Agency.
Page 3
6. The first written complaint being Baguiati P.S. Case No.
194/2021 contains the following allegations:-
“………In the regular course of business one
Accounts manager Mrs. Mohua Sardar daughter
of Shri Bhim Sen Sardar residing at 14/3 S.N. Roy
Road, Kolkata 700038 is working in the company
from 01/04/2010. Mrs. Mohua Sardar was
delegated inter-alia with the job role of collection of
cash payments from two automobile workshops of
the Company, situated at Gouripur near Airport
and another one at Chetla, Kolkata. Her
designation was accounts manager. Her nature
of job was clerical in nature. A Copy of the
appointment letter and latest pay slip is collectively
annexed herewith and marked as Annexure A/1.
After a few years of her service in the accounts
department, Ms. Mohua Sardar sometimes in the
year 2012 recommended her cousin namely Akash
Barui, for the position of accounts executive, in the
accounts department of the company. Upon such
recommendation by Ms. Mohua Sardar, Accounts
Department confirmed the employment of Akash
Barui as accounts executive in the same accounts
department. The copy of the appointment letter and
pay slip of Akash Barui is also annexed herewith
and marked as Annexure A/2. Again sometimes
in 2016 Mohua Sardar and Akash Barui
recommended and requested for another
Cashier under them and thus recommended
the name of one Biswajit Dutta. That said
Page 4Biswajit Dutta joined the company as Head
cashier with effect from 01st Aug 2016. The
Copy of the appointment letter and pay slip of
Biswajit Dutta is annexed herewith and marked as
Annexure A/3. With the passing of time the
business started growing phenomenally and daily
supervision of the owners of the company
gradually petered out. One Vikas Mohta joined the
complainant company accounts department on
01/11/2017 who was directly taking reporting of
this Mohua and Akash among other employees and
Vikas Mohta. The role of Vikas Mohta was that
of an agent. He was not directly employed
under the complainant company. Mr. Vikas
Mohta was employed to do the supervisory
accounting works on behalf of the Directors of the
company. He was also entrusted to represent the
complainant company before banks and other
regulatory authority. Hence Mr. Vikas Mohta was
“AGENT” of the company, within the meaning of
section 182 of Indian Contract Act, 1872. Since
2018-19 this group of employees were running the
accounts department at their own and without any
active supervision of the owners of the company.
Since they were working for quite some time,
owners also trusted them with the complete
accounting works of the Company. Recently
Mohua Sardar was caught for some accounts
falsification and she confessed before the
management of the company. After admission
of her wrongdoings Mohua Sardar returned
Page 5around 80 Lacs in a couple of instances.
Deeply shocked in such a mishap the owners
undertaken a thorough audit by an independent
agency. This exercise unearthed a huge quantum of
misappropriation done by all the above named
persons. We can make a pretty good estimate on
the inputs given by the auditors, that a sum of Rs.
Four Crores in the ball park. The retainership
agreement and other employment related details of
Vikas Mohta also annexed herewith and marked
as Annexure A/4……….”
7. Subsequently the other cases on the self-same cause of
action has been initiated in respect of the petitioner herein
and other accused persons.
8. In Ruchi Agarwal vs Amit Kumar Agrawal & Ors., (2005)
3 SCC 299, decided on November 5, 2004, the Supreme
Court held:-
“8. Learned counsel appearing for the appellant,
however, contended that though the appellant had
signed the compromise deed with the
abovementioned terms in it, the same was obtained
by the respondent husband and his family under
threat and coercion and in fact she did not receive
lump sum maintenance and
her stridhan properties. We find it extremely
difficult to accept this argument in the background
of the fact that pursuant to the compromise deed
the respondent husband has given her a consent
divorce which she wanted, thus had performed his
part of the obligation under the compromise deed.
Even the appellant partially performed her part of
Page 6the obligations by withdrawing her criminal
complaint filed under Section 125. It is true that
she had made a complaint in writing to the Family
Court where Section 125 CrPC proceedings were
pending that the compromise deed was filed under
coercion but she withdrew the same and gave a
statement before the said court affirming the terms
of the compromise which statement was recorded
by the Family Court and the proceedings were
dropped and a divorce was obtained. Therefore,
we are of the opinion that the appellant
having received the relief she wanted without
contest on the basis of the terms of the
compromise, we cannot now accept the
argument of the learned counsel for the
appellant. In our opinion, the conduct of the
appellant indicates that the criminal complaint from
which this appeal arises was filed by the wife only
to harass the respondents.
9. In view of the abovesaid subsequent events and
the conduct of the appellant, it would be an abuse
of the process of the court if the criminal
proceedings from which this appeal arises is
allowed to continue. Therefore, we are of the
considered opinion to do complete justice, we
should while dismissing this appeal also quash the
proceedings arising from criminal case Cr. No. 224
of 2003 registered in Police Station Bilaspur
(District Rampur) filed under Sections 498-A, 323
and 506 IPC and under Sections 3 and 4 of the
Dowry Prohibition Act against the respondents
herein. It is ordered accordingly. The appeal is
disposed of.”
9. In Sanjeev Kapoor Vs Chandana Kapoor, AIR 2020 SC
1064, on 19 February, 2020, the Supreme Court held:-
“17. Learned counsel for the appellant has also
referred to judgment of this Court in Mahua
Biswas(Smt.) vs. Swagata Biswas and another,
(1998) 2 SCC 359. In the above case, in the
proceedings under Section 125 Cr.P.C. parties
Page 7compromised and started living together but later
fell apart. An objection was raised by the husband
that order of maintenance could not be revived with
which High Court agreed. This Court revived the
maintenance application by allowing the appeal. In
paragraph 3 following was held:
“3. The matter can be viewed from either angle. It
can be viewed that there was a genuine effort by
the wife to rehabilitate herself in her matrimonial
home but in vain. The previous orders of
maintenance in a manner of speaking could at best
be taken to have been suspended but not wiped
out altogether. The other view can be that the
maintenance order stood exhausted and thus she
be left to fight a new litigation on a fresh cause of
action. Out of the two courses, we would prefer to
adopt the first one, for if we were to resort to the
second option, it would lead to injustice. In a given
case the wife may then be reluctant to settle with
her husband lest she lose the order of maintenance
secured on his neglect or refusal. Her husband on
the other side, would jump to impromptu devices to
demolish the maintenance order in duping the wife
to a temporary reconciliation. Thus, in order to do
complete justice between the parties, we would in
the facts and circumstances activate the wife‟s
claim to maintenance and put her in the same
position as before. Evidently, she has obtained a
maintenance order at a figure which was taken
into account by the Court of the C.J.M. Taking that
into account, we order the husband to pay to his
wife and the daughter a sum of Rs 1000 each,
effective from 1-10-1997. The sum of Rs 12,000
which was earlier ordered by this Court to be paid
to the wife and her daughter as arrears of
maintenance shall be taken to have been duly paid
uptil 30-9-1997, irrespective of the rate of
maintenance. This streamlines the dispute between
the parties. It is made clear that it is open to the
Page 8parties to claim such other relief as may be due to
him/her by raising a matrimonial dispute before
the matrimonial court.”
10. In Ramesh Chandra Gupta vs. State of Uttar Pradesh
and Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s).
……… of 2022 (Arising out of SLP (Crl.) No(s). 39 of 2022),
the Supreme Court held:-
“15. This Court has an occasion to consider the
ambit and scope of the power of the High Court
under Section 482 CrPC for quashing of criminal
proceedings in Vineet Kumar and Others vs.
State of Uttar Pradesh and Another, (2017) 13
SCC 369 decided on 31st March, 2017. It may be
useful to refer to paras 22, 23 and 41 of the above
judgment where the following was stated:
“22. Before we enter into the facts of the present
case it is necessary to consider the ambit and
scope of jurisdiction under Section 482 CrPC vested
in the High Court. Section 482 CrPC saves the
inherent power of the High Court to make such
orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the
process of any court or otherwise to secure the
ends of justice.
23. This Court time and again has examined the
scope of jurisdiction of the High Court under Section
482 CrPC and laid down several principles which
govern the exercise of jurisdiction of the High Court
under Section 482 CrPC. A three-Judge Bench of
this Court in State of Karnataka v. L. Muniswamy
(1977) 2 SCC 699 held that the High Court is
entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court or
that the ends of justice require that the proceeding
ought to be quashed. In para 7 of the judgment, the
following has been stated :
Page 9
„7. … In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse of the
process of the court or that the ends of justice
require that the proceeding ought to be quashed.
The saving of the High Court’s inherent powers,
both in civil and criminal matters, is designed to
achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of the
material on which the structure of the prosecution
rests and the like would justify the High Court in
quashing the proceeding in the interest of justice.
The ends of justice are higher than the ends of
mere law though justice has got to be administered
according to laws made by the legislature. The
compelling necessity for making these observations
is that without a proper realisation of the object
and purpose of the provision which seeks to save
the inherent powers of the High Court to do justice,
between the State and its subjects, it would be
impossible to appreciate the width and contours of
that salient jurisdiction.‟
41. Inherent power given to the High Court under
Section 482 CrPC is with the purpose and object of
advancement of justice. In case solemn process of
Court is sought to be abused by a person with
some oblique motive, the Court has to thwart the
attempt at the very threshold. The Court cannot
permit a prosecution to go on if the case falls in one
of the categories as illustratively enumerated by
this Court in State of Haryana v. Bhajan Lal 1992
Supp (1) SCC 335. Judicial process is a solemn
proceeding which cannot be allowed to be
converted into an instrument of operation or
harassment. When there are materials to indicate
that a criminal proceeding is manifestly attended
with mala fides and proceeding is maliciously
instituted with an ulterior motive, the High Court
will not hesitate in exercise of its jurisdiction under
Section 482 CrPC to quash the proceeding under
Category 7 as enumerated in State of Haryana v.
Page 10
Bhajan Lal 1992 Supp (1) SCC 335 which is to the
following effect :
„102. (7) Where a criminal proceeding is manifestly
attended with mala fides and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.‟ Above Category 7 is clearly
attracted in the facts of the present case. Although,
the High Court has noted the judgment of State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 but
did not advert to the relevant facts of the present
case, materials on which final report was
submitted by the IO. We, thus, are fully satisfied
that the present is a fit case where the High Court
ought to have exercised its jurisdiction under
Section 482 CrPC and quashed the criminal
proceedings.”
16. The exposition of law on the subject relating to
the exercise of the extra-ordinary power under
Article 226 of the Constitution or the inherent power
under Section 482 CrPC are well settled and to the
possible extent, this Court has defined sufficiently
channelized guidelines, to give an exhaustive list of
myriad kinds of cases wherein such power should
be exercised. This Court has held in para 102 in
State of Haryana and Others v. Bhajan Lal
and Others, 1992 Supp. (1) 335 as under :
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad
Page 11kinds of cases wherein such power should be
exercised.
(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 make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
Page 12proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.”
17. The principles culled out by this Court have
consistently been followed in the recent judgment
of this Court in Neeharika Infrastructure Pvt.
Ltd. v. State of Maharashtra and Others, 2021
SCC Online SC 315.”
11. The present case falls under category 1, 3 and 7 of Para 102
of Bhajan Lal (Supra).
12. Admittedly, the proceedings in Baguihati P.S. Case No. 194
of 2021 has been quashed in respect of all the other
accused persons including the principal accused Mohua
Sardar, on the basis of an amicable settlement between the
parties. It appears that the principal accused and the
other accused persons against whom the allegations were
specific have all been discharged from the case, on the
proceedings against them being quashed.
13. Considering the fact that the initial complaint contained
no allegation against the present accused person and also
the fact that there is no specific allegation against the
petitioner herein and there also being no materials on
record including the case diary to substantiate the offences
alleged against the petitioner herein, this Court finds that the
proceedings against the present petitioner is liable to be
Page 13
quashed in the interest of justice to prevent abuse of the
process of law.
14. CRR 1106 of 2022 is thus allowed.
15. The proceeding in Baguiati P.S. Case No. 227 of 2021 dated
08.05.2021 under Section 420 /408 /477A /403 /468
/120B /34 of the Indian Penal Code being G.R. No. 1593 of
2021, is hereby quashed in respect of the petitioner
namely Biswajit Dutta.
16. All connected applications, if any, stands disposed of.
17. Interim order, if any, stands vacated.
18. Copy of this judgment be sent to the learned Trial Court for
necessary compliance.
19. Urgent certified website copy of this judgment, if applied for,
be supplied expeditiously after complying with all, necessary
legal formalities.
[Shampa Dutt (Paul), J.]
[ad_1]
Source link