Gauhati High Court
Page No.# 1/ vs The State Of Assam And Anr on 23 January, 2025
Page No.# 1/10
GAHC010057672024
2025:GAU-AS:707
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./370/2024
PANKAJ DUTTA
S/O LATE KALYAN KR. DUTTA
RESIDENT OF RAJAT KAMAL PATH,
BYE LANE -12, HOUSE NO. 10, KANCHAN HOUSING SOCIETY, ZOO ROAD,
P.S. GEETANAGAR, GUWAHATI-24, KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM
2:SRI PULAK BAIDYA
S/O LATE A.K.S. BAIDYA (S.M.) NEXA CHANDMARI
PALLAVI MOTORS PVT. LTD. KAZIRANGA TOWER
GROUND FLOOR
RGB ROAD
KAZIRANGA TOWER
GROUND FLOOR
RGB ROAD
NEAR GUWAHATI COMMERCE COLLEGE
P.S. CHANDMARI
GUWAHATI-21
DIST. KAMRUP (M)
ASSA
Advocate for the petitioner : Mr. T. Kalita, ld.
Adv.
Advocate for the respondents : Mr. M. P. Goswami, ld. Addl. P.P, Resp.-1 and
Mr. S. C. Keyal, ld.Adv., Resp.-2.
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 28.11.2024
Date of Judgment : 23.01.2025
JUDGMENT & ORDER (CAV)
Heard Mr. T. Kalita, learned counsel for the petitioner. Also heard Mr. M. P.
Goswami, learned Additional Public Prosecutor for the State respondent No.1
and Mr. S. C. Keyal, learned counsel for the respondent No.2.
2. This application is filed under Sections 482 read with Section 397 of the
Code of Criminal Procedure, 1973, praying for the setting aside and quashing of
the order dated 16.10.2023, passed by the learned Additional Chief Judicial
Magistrate, Kamrup (M) [in short ‘ld. Addl. CJM], Guwahati, Assam, in PRC Case
No. 2001/2019 by which charge under Section 408 of the IPC has been framed
against the present petitioner.
3. The brief facts of the case is that: on 23.02.2019, one Sri Pulak Baidya,
(SM) of Nexa Chandmari/respondent No.2, lodged an FIR before the Chandmari
Police Station alleging, inter alia, that one of their employees, who had already
been terminated, was found to have engaged in embezzlement of company
funds while dealing with customers. The employee had inappropriately handled
cash payments and, during the account audit, a shortage in the payments for
the cases he had handled was discovered. Thereafter, the management of NEXA
Chandmari (Pallavi Motors Pvt. Ltd.) published a public notice in the Assam
Tribune.
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4. Further, based on the FIR, a criminal case was registered by the Officer-in-
Charge of Chandmari Police Station, vide Chandmari Police Station Case No.
159/2019, under Section 408 of IPC against the present petitioner.
Subsequently, the petitioner was arrested by the Chandmari Police on
26.02.2019 and forwarded to the Court of the learned Judicial Magistrate 1st
Class, Kamrup (M), at Guwahati on 27.02.2019. It is worth mentioning here that
the Investigating Authority did not seek the custody of the accused for the
purpose of investigation, and accordingly, the accused was remanded to Jail
Hajot. The petitioner was granted bail by this Court on 26.03.2019, vide Order
in Bail Application No. 682/2019. While granting bail, this Court observed that
the amount allegedly misappropriated by the petitioner had not been mentioned
in the FIR, nor was it reflected in the forwarding report. The FIR was further
observed to be very unspecific.
5. After investigating the allegations in the FIR, the I.O submitted the Charge-
Sheet (No. 31 dated 31.03.2019) before the learned Chief Judicial Magistrate,
Kamrup (M) [in short ‘ld. CJM], at Guwahati. As per the Charge-Sheet, it
appears that the I.O had visited the place of occurrence and recorded witness
statements, and concluded that the case against the present petitioner under
Section 408 of IPC was well established. It is noteworthy that the Charge-Sheet
does not mention the seizure of any documents from NEXA Chandmari, Pallavi
Motors, or any audit report, bank statements, etc., despite the alleged
embezzlement of company funds.
6. Following the submission of the Charge-Sheet before the ld. CJM, PRC No.
2001/2019 was initiated, and trial ensued against the present petitioner. It is
stated that the learned Trial Court, upon receiving the case record on transfer,
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took cognizance of the offence under Section 408 of IPC against the present
petitioner, vide Order dated 02.09.2019. The learned Magistrate, by the same
Order, also directed that summons be issued to the petitioner. In compliance
with the summons, the petitioner appeared in PRC No. 2001/2019, and relevant
copies such as the FIR, statements of three prosecution witnesses recorded
under Section 161 of the Code of Criminal Procedure, 1973, and the Charge-
Sheet were provided to the petitioner as an accused in the PRC. After service of
the relevant copies by the prosecution side, the learned Magistrate heard the
prosecution side, represented by the learned Additional Public Prosecutor, as
well as the engaged Counsel for the petitioner, at length on the consideration of
the Charge on 03.08.2023. The learned Magistrate, vide Order dated
03.08.2023, fixed the case for passing the necessary Order on 16.10.2023.
Accordingly the ld. Addl. CJM, vide the impugned Order dated 16.10.2023,
framed charges under Section 408 of the IPC against the present petitioner.
7. Being highly aggrieved and dissatisfied with the Order dated 16.10.2023,
passed by the ld. Addl. CJM, Kamrup (M), who had charged the petitioner in
connection with P.R.C. No. 2001/2019 under Section 408 of the IPC, the
petitioner has filed this petition praying for the setting aside of the Order dated
16.10.2023 and the quashing of the P.R.C. No. 2001/2019.
8. Mr. Kalita, learned counsel for the petitioner, has submitted that the
petitioner was working as a Sales Executive under Nexa Pallvai Motors. As a
Sales Executive, he was responsible for apprising customers about the price,
features, and other details of various models of vehicles. The petitioner had little
to no involvement in the monetary transactions between the customer and the
showroom during the vehicle delivery process. Therefore, there was no question
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of the petitioner misappropriating the company’s money.
9. He further submits that from the statement recorded under Section 161 of
the Cr.P.C. is the only material available; no other evidence, such as an audit
report, bank statement of the company, etc., was submitted by the prosecution.
Despite this, the learned Trial Court proceeded to take cognizance of the offence
under Section 408 of the IPC and framed charges against the petitioner by order
dated 16.10.2023. The trial court also overlooked the fact that no customer has
lodged a complaint regarding any excessive payment made to the petitioner, nor
have any statements from such customers been recorded during the
investigation into the alleged misappropriation. Furthermore, there is no record
or material to show any shortage of payment in the cases handled by the
petitioner, as alleged in the FIR.
10. Hence, the learned trial court framed the charge in a mechanical manner
without properly considering the merits of the case. The charge was framed
against the petitioner in the absence of any relevant documents, and there is no
possibility of conviction for the petitioner. Therefore, it would amount to an
abuse of the process of the Court. Accordingly, it is submitted that this is a fit
case in which the order dated 16.10.2023, passed in connection with PRC Case
No. 2001/2019 by the learned Additional Chief Judicial Magistrate, Kamrup (M),
Guwahati, including the FIR and charge-sheet, may be set aside and quashed
by invoking the power under Section 482 of the Cr. P.C.
11. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, has
submitted that the charge was framed by the learned trial court after
considering the prima facie materials against the petitioner, which attract
Section 408 of the IPC. He further submits that the statements made by the
witnesses under Section 161 of the Cr. P.C. indicate the involvement of the
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accused/petitioner in the offence, and that, based on these materials; the
learned trial court rightly framed the charges against the petitioner under
Section 408 of the Cr. P.C.
12. In this context, Mr. Keyal, learned counsel for respondent No. 2, has
submitted that the charge was framed after considering the statements of the
P.Ws. A prima facie case has been established against the petitioner based on
the statements made by the witnesses under Section 161 of the Cr.P.C.
Accordingly, he raised an objection and submitted that this is not a fit case for
setting aside and quashing the criminal proceedings by invoking the power
under Section 482 of the Cr. P.C.
13. After hearing the submissions made by the learned counsels for both sides,
I have perused the case diary and the scanned copy of the case record. It is
seen that the FIR was lodged by respondent No. 2 against the present petitioner
alleging embezzlement of company funds while dealing with customers.
However, it is admitted that no complaint has been lodged by any customer. It
was only during the company’s auditing that it came to the knowledge of the
company that funds had been embezzled by the petitioner. It is a fact that no
audit report or bank statement was collected by the I.O during the investigation.
However, considering the statements of witnesses under Section 161 of the Cr.
P.C. and other materials collected by the I.O, a prima facie case has been
established against the petitioner, and accordingly, the charge-sheet was filed by
the IO. Moreover, from the order passed by the learned Trial Court, it is evident
that, at the time of framing the charge, the Trial Court had heard the objections
raised by the petitioner’s side. After considering all the aspects of the case and
finding a prima facie case, the charge was framed against the petitioner.
Therefore, it cannot be said that the charge was framed mechanically, without
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the application of judicial mind.
14. The Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs.
Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, has held 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 channelized and inflexible guidelines
or rigid formulae and to give an exhaustive list of myriad kinds 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
Page No.# 8/10Code 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 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.”
15. In the instant case, it is seen that there is no material to conclude that the
FIR was lodged due to any ulterior motive or previous grudge. Moreover, a plain
reading of the FIR shows that a prima facie case has been made out against the
petitioner.
16. More so, it is view of the Hon’ble Apex Court that while exercising the
power under Section 482 Cr.P.C., the Court is not required to conduct the mini
trial. In this regard, a decision of Hon’ble Apex Court in the case of Central
Bureau of Investigation Vs. Aryan Singh etc, reported in (2003) SCC
online 379, can be relied on wherein, the paragraph Nos. 9, 10, 11 & 12 of the
said judgment, reads as under:
“9. Having gone through the impugned common judgment and order passed by the
High Court quashing the criminal proceedings and discharging the accused, we are of
the opinion that the High Court has exceeded in its jurisdiction in quashing the entire
criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or
in exercise of the powers under Article 226 of the Constitution of India.
10. From the impugned common judgment and order passed by the High Court, it
appears that the High Court has dealt with the proceedings before it, as if, the High
Court was conducting a mini trial and/or the High Court was considering the
applications against the judgment and order passed by the learned Trial Court on
conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or
quashing of the criminal proceedings, while exercising the powers under Section
482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the
common impugned judgment and order has observed that the charges against the
accused are not proved. This is not the stage where the prosecution / investigating
agency is/are required to prove the charges. The charges are required to be proved
Page No.# 9/10during the trial on the basis of the evidence led by the prosecution / investigating
agency. Therefore, the High Court has materially erred in going in detail in the
allegations and the material collected during the course of the investigation against
the accused, at this stage. At the stage of discharge and/or while exercising the
powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is
required to consider “whether any sufficient material is available to proceed further
against the accused for which the accused is required to be tried or not”.
11. One another reason pointed by the High Court is that the initiation of the criminal
proceedings / proceedings is malicious. At this stage, it is required to be noted that the
investigation was handed over to the CBI pursuant to the directions issued by the High
Court. That thereafter, on conclusion of the investigation, the accused persons have
been chargesheeted. Therefore, the High Court has erred in observing at this stage
that the initiation of the criminal proceedings / proceedings is malicious. Whether the
criminal proceedings was/were malicious or not, is not required to be considered at
this stage. The same is required to be considered at the conclusion of the trial. In any
case, at this stage, what is required to be considered is a prima facie case and the
material collected during the course of the investigation, which warranted the accused
to be tried.
12. In view of the above and for the reasons stated above, when the High Court has
exceeded in its jurisdiction in quashing the entire criminal proceedings and applying
the law laid down by this Court in catena of decisions on exercise of the powers at the
stage of discharge and/or quashing the criminal proceedings, the impugned common
judgment and order passed by the High Court quashing the criminal proceedings
against the accused is unsustainable and the same deserves to be quashed and set
aside.
17. From the materials available in the Case Diary and even from a plain
reading of the statement made in the FIR, it is seen that a prima facie case has
been established against the petitioner, based on which the charge was framed.
Further, acquittal may be a possible outcome, but, at this stage, the court is not
supposed to go into the detail of the merits of the case, nor it is the stage to
discuss every detail of the evidence of the witnesses.
18. In view of the above, this Court is of the opinion that it is not a fit case for
invoking the power under Section 482 of the Cr. P.C. to set aside and quashing
of the order dated 16.10.2023 passed in P.R.C. No. 2001/2019, registered under
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Section 408 of the IPC by the learned Additional Chief Judicial Magistrate. Thus,
this criminal petition stands dismissed.
19. In terms of above, this criminal petition stands disposed of.
JUDGE
Comparing Assistant
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