CRIMINAL REVISIONAL JURISDICTION v. The State of West Bengal & Anr.

Judgment

1. Petitioners have filed this Criminal Revisional application under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of the Impugned Order dated 26th March, 2018 passed by the Court of the Learned Judge, Bench-I of City Sessions Court at Calcutta in Criminal Revision No. 174 of 2017 thereby affirmed the Order dated 17th April, 2017 passed by the Court of the Learned Metropolitan Magistrate, 3rd Court at Calcutta in connection with Case No. CN-11778 of 2017 under Sections 406/420/120B of the Indian Penal Code, 1860.

2. By the said impugned order dated 17th April, 2017, the Learned Metropolitan Magistrate has taken cognizance under Sections 406/420/120B of the Indian Penal Code, 1860 on the basis of a petition of complaint filed along with affidavit and documents before the Learned Magistrate. The Learned Magistrate, in the said case, examined the complainant as well as another witness under Section 200 of the Code of Criminal Procedure, 1973 and after going through the initial deposition of both witnesses and as per the documents produced by the complainant, a prima facie case was found to be made out against the accused persons under Sections 406/420/120B of the Indian Penal Code, 1860 and ultimately issued 3 summons against the accused persons and fixed a date on

06.06.2017 for S/R and Appearance. The impugned order, under challenge, is set out herein below: - “Today is fixed for S/A. Complainant documents. is present along with all original Complainant and the witness is examined U/s 200 Cr.P.C. Having gone through the initial deposition of both the witness and as per the document produced the complainant, a prima facie case U/s 406/420/120B of Indian Penal Code is found to be made out against the accused person. Hence, issue summons against the accused persons U/s 406/420/120B of Indian Penal Code. Fix 06.6.17 for S/R and Appearance. Requisites at once.”

The brief facts of the instant case are that one Prem Kumar Agarwal, by virtue of a special power of attorney dated 28th July, 2016, executed in his favour by M/S India Trading Oil Company (herein after referred as ‘the Complainant’) filed a petition of complaint under Section 200 of the Cr.PC before the Learned Additional Chief Metropolitan Magistrate at Calcutta and same was registered as CN – 11778 of 2017. In the said petition of complaint, 4 the complainant alleges that in or about June 2015, the accused persons had proposed to buy Furnace Oil. Based on this proposal and believing the accused persons to be of high repute, the complainant agreed to sell different quantities of the furnace oil to all of accused on different occasions worth to a total of Rs. 14,74,772/-.

4. The said products were duly accepted by the accused without any demur or protest regarding their quality or quantity. Despite invoices being issued on the respective dates of supply of furnace oil, the accused persons failed, neglected and/or ignored to make the payment of invoices upon demand, the accused persons avoided payment under various pretext and, subsequently, the accused persons snapped all contacts with complainant. As such, the petitioners had intention to cheat the complainant from the outset for their wrongful gain, thereby caused wrongful loss to the complainant to the tune of Rs. 14,74,772/- and they have also misappropriated aforesaid sum with mala fide intention. Accordingly, they have committed an offence under Sections 406/420/120B of the Indian Penal Code, 1860.

5. Whereas the contention of the petitioners is that the Learned Judge has failed to appreciate that non-payment/under payment, ipso facto, does not make out a criminal offence. The petitioners are 5 innocent and are in no way connected with the instant case for criminal offence. In order to enforce the civil claim, the complainant has been dressed of as a criminal offence.

6. It is further the contention of the petitioners that they had paid Rs. 3, 05, 20,532/- to the opposite party no. 2. The complainant has only claimed interest for delayed payment in the petition of complaint @ 24% per annum, which is evidently a civil matter. But, without considering the entire facts, the Learned Court below vide order dated 17th April, 2017 mechanically and without applying his judicious mind issued process against the petitioners and fixed a date on 06.06.2017 for S/R and Appearance.

7. Being aggrieved with the said order, the petitioners have challenged the same before the Court of the Learned Chief Judge, City Sessions Court at Calcutta by way of filing a Criminal Revision No. 174 of 2017 under Sections 397/399 of CrPC. However, by Judgment and Order dated 26th March, 2018, the Learned Judge, Bench – I of City Sessions Court, Calcutta affirmed the impugned order dated 17th April, 2017 passed by the Learned Metropolitan Magistrate, 3rd Court at Calcutta in case No. CN – 11778 of 2017 without delving into the merit of the case, despite the fact the 6 criminal case cannot stand based on civil disputes. Hence, this Criminal Revisional application. SUBMISSION ON BEHALF OF THE PETITIONERS:

8. Learned counsel appearing on behalf of the petitioners submitted that the actually commercial transaction commenced on and from 2005. The petitioners had paid amount of purchase of furnace oil time to time and there is no outstanding amount at all. The complainant only charged interest on the principal amount for alleged delayed payment. Apart from that, the complainant has also charged excess rate of furnace oil. It came to their knowledge in the 1st week of July, 2015, during an International Audit Exercise, that the rates charged by the opposite party no. 2 in the bills on account of supply so affected were in excess of rates published in the Ready Reckoner issued by HPC. The petitioners would not have made any payment against such excess of rates charged by the complainant as they are not entitled to.

9. It was further submitted that the petitioners are not liable to pay the amount as claimed by the complainant to the tune of Rs. 14,74,772/- as the complainant had already over charged the petitioners. As such, claiming of interest @ 24% per annum or any other rates does not and cannot arise. All allegations contained in the 7 said petition of complaint have been denied and disputed by the petitioners and sought for setting aside the impugned order dated 26th March, 2018 passed by the Learned Judge, Bench – I, City Sessions Court at Calcutta.

10. The learned counsel appearing on behalf of the petitioners also placed reliance of following judgments to bolster his contention that none of the alleged offences has been attracted in the present case. The complaint is fake. The allegations do not show or reflect any ingredients of the offences as alleged qua the petitioners herein. It is purely a commercial transaction. Therefore, to prevent the abuse of process of law or secure the ends of justice, the order may be set aside. Those judgments are as under: - i. Alpic Finance Ltd. Vs. P. Sadasivan & Anr.1; ii. Hotline Teletubes and Components Ltd. & Ors. Vs. State of Bihar & Anr.2; iii. Satishchandra Ratanlal Shah Vs. State of Gujarat & Anr.3; iv. Uma Shankar Gopalika Vs. State of Bihar & Anr.4; v. Vijay Kumar Ghai & Ors. Vs. State of West Bengal & Ors.5;