Shib Sadhan Sadhu, J.
1. The petitioners by means of the present petition under Article 227 of the Constitution of India seek to quash/set aside the entire proceedings of G.R. Case No.1567 of 1997 under Section 420 of the Indian Penal Code pending before the Court of Learned Metropolitan Magistrate, 22nd Court, Calcutta including the order dated 19th March, 2014.
2. An F.I.R. was lodged by P.Halder, Inspector of Police, C.B.I. : SPE : SCB : Calcutta against the present petitioners herein and unknown others on 30.06.1995 for the offence punishable under Section 120 B read with Sections 420/468/471 IPC. As per the F.I.R. an information from a reliable source was received to the effect that during the year 1992-93 Sri Y.C. Bhandari, Chairman/ Director, Natural Agro Products Ltd., 10 Clive Row, Calcutta-1, a Public Limited Company had entered into a criminal conspiracy with unknown others and in turn of the said conspiracy they had launched a Coconut Plantation Scheme named ‘Kalpavriksha Yojana’ and fraudulently and dishonestly induced the public to invest their money in the above mentioned scheme by giving them offer that after purchase of minimum two coconut trees @ Rs.300/-, an investor will be provided with a Cash Certificate from a Nationalized Bank of which maturity value after six years would be same as of investment amount and also will get a return of the amount as much as invested amount through a Nationalized Bank after the completion of first six years to next 20 years.
3. It was further revealed that the aforesaid accused persons had managed to receive a sum of Rs.5,78,100/- from the public under the aforesaid scheme of the company by misutilising the services of Central Bank of India misused the same amount for their personal gain by manipulating/forging relevant documents like Specimen Signature Register, Application Form etc. It was further alleged that no plantation work was done by the accused under the Company’s ‘Kalpavriksha Yojana’ as advertised. On the basis of such information the said Inspector lodged a suo moto complaint and C.B.I./SPE/SCB Case No.RC 4/S/95-Cal was registered and he took up the investigation and after conclusion of investigation charge-sheet was submitted against the present two petitioners. Thereafter the Learned Magistrate on 18.12.2007 on hearing both sides and on perusal of the materials framed charge under Section 420 of the IPC against both the accused persons and thereafter five (5) witnesses have been examined. On 14.03.2014 the Learned Assistant Public Prosecutor, C.B.I., Kolkata filed a petition under Section 321 of the Code of Criminal Procedure praying for withdrawal of the case. On hearing both the sides the Learned Magistrate rejected the petition and fixed date for further evidence. Feeling aggrieved against the same the present application under Article 227 of the Constitution of India was filed by the petitioners.
4. Mr. Subhasis Panchal, Learned Advocate appearing on behalf of the petitioners contended that the C.B.I. instituted the instant case at the instance of two former Directors who were removed for committing various misdeeds and one of them has good relations with the then D.S.P., C.B.I. and collusively the instant case was initiated to destroy the Company and the petitioners. He further submitted that the facts stated in the FIR as well as the charge-sheet do not constitute any offence of cheating or fraud as alleged. The funds raised by the petitioners/Company under 'Kalpoavriksha Yojana’ was never received by the company or its officers but the same was directly deposited with the Central Bank of India and the Bank duly issued Cash Certificate to the Investors and so no case of cheating or fraud can lie against the petitioners. In accordance with the said scheme the company duly acquired, booked and purchased huge lands at Puri, Bhubaneswar and adjoining areas and made huge plantations of coconut trees and the deeds/ documents in respect of such lands were duly received by the C.B.I. but still they submitted the charge sheet falsely. Mr. Panchal further contended that the C.B.I. is not a person aggrieved and so they cannot start any case specifically when no investor did lodge any complaint against the petitioners. He contended yet further that the petitioners are being harassed for the last 20 years during which period only four witnesses out of forty four (44) C.S. witnesses have been examined. None of the witnesses examined so far has supported the case of the prosecution and therefore the continuation of the present proceeding would be an abuse of process of law and it would only cause undue harassment to the petitioners.
5. Further contention of Mr. Panchal, Learned Advocate appearing on behalf of the petitioners, was that although the C.B.I. Authorities through their Learned A.P.P. submitted a petition before the Learned Magistrate on 14.03.2014 under Section 321 Cr.P.C. praying for withdrawal of the case on the grounds inter-alia that the case is more than 18 years old and there is no chance of immediate completion of the trial, that though the instant case was investigated by C.B.I., the result of examination shows that no financial loss occurred to any Government organization by the fraudulent transaction and that no fruitful purpose would be served if the prosecution goes ahead with the trial, but still the Learned Magistrate rejected such petition without application of mind. According to him the Learned Magistrate should have accorded consent for withdrawal of the case by exercising his discretion judicially, specially when the grounds of withdrawal were justified and the application was made bonafide. It was obligatory upon the Learned Magistrate to prevent abuse but he has not discharged his duty by appreciating the fact that the continuation of the proceeding is nothing but an abuse of process of law. The Learned Magistrate instead of exercising his judicial discretion passed the order mechanically. Therefore, such order cannot be sustained and it is liable to be set aside. He concludingly submitted that the institution of the criminal proceeding or its continuation against the present petitioners is a sheer abuse of process of law and thus the impugned proceeding is liable to be quashed. He relied on the decisions reported in 1983 Supreme Court Cases (Cri) 224 : (1983) 1 SCC 438 (Sheonandan Paswan V. State of Bihar & Others) and (2014) 10 Supreme Court Cases 380 (Bairam Muralidhar V. State of Andhra Pradesh) in support of his submission.
6. Mr. Asraf Ali, Learned Advocate appearing for the C.B.I. on the contrary argued that from the contents of the F.I.R. and the case diary statements and also from the depositions of the witnesses already examined a prima facie case of cheating as defined in Section 420 of the IPC is made out. Therefore, when the trial of the case is going on, no inference is warranted and the petitioners would be at liberty to raise defences available to them under the law in the Trial Court. Their defence cannot be considered at this stage. He further contended that the Learned Magistrate has rejected the petition for withdrawal of the case with reasons. As such it cannot be said that he did not apply his mind. He thus insisted upon dismissal of the present Revisional Application.
7. I have considered the rival submissions advanced by the Learned Advocates for the parties in the light of the decisions placed and perused the entire materials available on record. I have also gone through the impugned order and the depositions of the witnesses.
8. At the very outset let me refer to two recent decisions of the Hon’ble Supreme Court laying down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C.
9. In Amit Kapoor Vs. Ramesh Chander and Anr. (2013) 1 SCC (Cri.) 986 : (2012) 9 SCC 460, the Hon’ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction.
10. In Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330, The Hon’ble Supreme Court has been pleased to observe that:-
'The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.'
11. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decisions, in order to find out whether a case of quashing criminal proceedings constituted upon FIR and charge-sheet is made out so as to warrant interference by this Court invoking inherent power under Section 482 of the Code.
12. The entire allegations against the petitioners as stated in the written complaint, charge-sheet and also in the depositions of the witnesses P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 revealed that the petitioners floated the scheme ‘Kalpavriksha Yojana’ of Coconut Plantation Scheme and induced the member of public to invest in the said scheme but the said scheme was never materialized. They induced 284 investors who contributed a sum of Rs.5,78,100/-, a major amount of which was diverted and misused by them for their personal gain/use. It is further revealed from the evidence of the witnesses that they only got back their invested amount after a long time but they did not receive any further benefit of the scheme as was promised. It further appears from the evidence of P.W.5 that the petitioner/accused Company did not file return of balance-sheet in the year 1996 and for that a criminal case was lodged against the Company. Therefore it is evident that there are sufficient materials which established prima facie commission of an offence by the petitioners.
13. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial.
14. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioners for the offence complained of against them under the Indian Penal Code, therefore, this Court is of the opinion that, prima facie, offence under the Indian Penal Code is made out against the petitioners.
15. Looking into the impugned order dated 19th March, 2014 I find that the petition for withdrawal under Section 321 of the Cr.P.C. was filed by the Learned Assistant Public Prosecutor which was opposed strongly by the Learned Defence Counsel who clearly submitted that he is ready to face trial on behalf of the accused. Be that as it may, the Learned Magistrate observed that the Learned Assistant Public Prosecutor has not clarified whether he has any proper authority on behalf of the State to withdraw the instant case as there was no Annexure to show such authority. He further observed that it was revealed from investigation and also from the instant application that the accused fraudulently launched a Coconut Plantation Scheme and thereby induced 284 people to invest their money and that the accused persons had received money fraudulently from a large number of investors under the aforesaid scheme and so the Learned Magistrate opined that number of public have interest in the present case and that those investors having interest in the case have not been informed about withdrawal of the case and therefore he rejected the petition for withdrawal.
16. In the case of Bairam Muralidhar Vs. State of Andhra Pradesh (supra) the Hon’ble Supreme Court has held:
'A Court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, which is not to be exercised in a mechanical manner. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the Court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done.'
In the case of Sheonandan Paswan Vs. State of Bihar (supra) the Hon’ble Supreme Court held that the only guiding factor which should weigh with the Public Prosecutor while moving the application for withdrawal and the Court according its permission for withdrawal is to see whether the interest of public justice is advanced and the application for withdrawal is not moved with oblique motive unconnected with the vindication of cause of public justice.
In the case of State of Punjab Vs. Surjit Singh & Anr. reported in AIR 1967 Supreme Court 1214 and in the case of Ghanshyam Vs. State of M.P. and Others reported in (2006) 10 Supreme Court Cases 473, the Hon’ble Supreme Court has held that it is only the Public Prosecutor and none else who is in charge of a particular case and is actually conducting the prosecution can only file an application for withdrawal under Section 321 Cr.P.C. and that he cannot surrender that discretion to anyone. It was further held that if a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution. It has been further held by the Hon’ble Supreme Court in the case of M.N.Sankaranarayanan Nair V. P.V.Balakrishnan and Others reported in AIR 1972 Supreme Cou
Please Login To View The Full Judgment!
rt 496 that it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. 17. Considering the impugned order dated 19th March, 2014 passed by the Learned Magistrate rejecting the prayer for withdrawal in the light of the aforestated exposition of law it cannot be said that the said order is unreasonable or arbitrary order or that the same was passed without application of mind. On the other hand it is very much apparent that such order is very much sound passed after due deliberation and on proper appropriation of fact and law. The contention is therefore baseless and unacceptable. 18. Inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 19. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs. 20. Keeping in view the age of the case the Learned Trial Court is directed to dispose of the case finally within a period of four months from the date of communication of this order without giving any unnecessary adjournment to either of the parties. 21. Let a copy of this judgment be sent to the Learned Metropolitan Magistrate, 22nd Court, Calcutta for information and compliance. 22. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.