S.Kaliammal v. The State And ANR
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CRM(SB)/1/2024 M/s Seascape Shipping Logistics Pvt Ltd Vs.
The State and others Mr. Phiroze Edulji, Mr. Abhishek Dey, Ms. K. Sneha ...for the petitioner Mr.Bikash Ranjan Battacharya, Sr.Adv.
Mr.Sayan Chattopadhyay, Mr. Manas Ajai Sonkar ... for the respondent Ms. A.S.Zinu ... for the State With CRR/31/2023 S. Kaliammal Vs.
The State and another Mr.Bikash Ranjan Bhattacharya, Sr.Adv.
Mr.Sayan Chattopadhyay, Mr. Manas Ajai Sonkar ... for the respondent Ms.A.S.Zinu ... for the state Mr. Phiroze Edulji, Mr. Abhishek Dey, Ms. K. Sneha ...for the respondent no.2 June 19, 2024 [SR] Item Nos.3&4 Re: CRR/31/2023 The present application has been filed for quashing of an FIR registered against the petitioner.
Learned counsel for the petitioner argues that the petitioner is a 76 years old lady who is being prosecuted criminally although the dispute is purely civil in nature. It is argued that the lodging of a criminal complaint is merely a part of the arm-twisting tactics
adopted by the de facto complainant in order to coax the petitioner into paying up.
It is submitted that the ingredients of Section 420 of the Indian Penal Code are not satisfied since at the inception of the transaction and jural relationship between the parties, there could not have been any deception or inducement, since the petitioner has been continuously going on paying the dues in tranches to the de facto complainant.
It is argued that despite having full knowledge that the bank account in respect of which the petitioner had handed over the cheques to the de facto complainant was closed, the de facto complainant presented the same, thereby having the cheques dishonoured. As such, it is argued that there was no mens rea on the part of the petitioner to come within the purview of Section 420 of the Indian Penal Code at any point of time. Learned counsel places reliance on an email dated May 20, 2021 sent by the de facto complainant which shows, according to learned counsel for the petitioner, that the de facto complainant was well aware of the closure of the concerned bank account. Learned counsel for the petitioner cites a judgment of the Supreme Court reported at 2024 SCC OnLine SC 339 (A.M.Mohan vs.
The State) in support the proposition that there has been a matter of concern with regard to a growing tendency in business circles to convert purely civil disputes into criminal cases. The Supreme Court further observed that this is obviously on account of a prevalent impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors.
In the said judgment, the Supreme Court reiterated certain principles with regard to the law relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure. One of the components thereof was that a complaint may be quashed where it is a clear abuse of the process of the court as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. A given set of facts, the Supreme Court held, may make out purely a civil wrong; or purely a criminal offence; or a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.
The test is whether the allegations in the complaint disclose a criminal offence or not. Learned counsel argues that in terms of the agreement between the parties, the dues of the petitioner was at the most around Rs.47.00 lakhs, which position is borne out by the ledger of the de facto complainant itself.
Even as per the agreement, it is pointed out, the dues could be calculated at the most around Rs.1 crore.
The premise of arriving at the absurd figure about Rs.4.5 crore on the part of the de facto complainant was that 1% interest was payable by the petitioner per week.
Such premise of calculation itself, it is argued, is absurd and never agreed to by the petitioner at any point of time. Thus, in view of continuing, though staggered, payment by the petitioner, it is argued that no criminal intent of the petitioner to come within the purview of Section 420 of the Indian Penal Code is
made out. In the absence of mens rea, it is argued, the FIR ought to be quashed.
Learned counsel appearing for the de facto complainant strongly controverts the arguments made by the petitioner. Learned counsel places reliance on communications made by the petitioner/accused on such count and cites a letter dated March 16, 2023 written by the petitioner to the de facto complainant admitting the petitioner's dues to be Rs.4.56,00,000/-. A cheque to the tune of the said amount was also annexed to the said communication and forms a part of the quashing application. It is argued that the petitioner further wrote to the Superintendent of Police, A & N Islands, South Andaman District, Port Blair where he admitted that the petitioner would settle the payment as per mutually agreed amount by approximately September 13, 2023.
Even in the concerned email relied on by the petitioner, the de facto complainant clearly alleged that the petitioner is continuing with the fraud and left the de facto complainant with no option but to proceed with criminal proceedings on all the parties concerned since the petitioner cheated the de facto complainant knowingly by issuing DUD cheque of an already-closed account. Learned counsel further argues, by placing reliance on annexures to the pleadings of the parties, that the cheques were drawn on a particular account bearing No.29370200000373. However, the document annexed by the petitioner indicates that it was a different account which was closed, as evident from the communication by the petitioner dated April 16, 2021 (Annexure P-6 to the quashing application).
It is seen that the closure of the current account mentioned in the communication dated April 16, 2021 pertained to current account No.39701093479, which was not the account on which the concerned cheque was drawn.
In reply, however, learned counsel for the petitioner points out that in the very next page of the quashing application, statement of accounts of the account-in-question on which the cheque was drawn has also been annexed, which shows that the said account was closed.
Upon hearing learned counsel, it transpires that there is nothing in the materials annexed to the quashing application to connect the de facto complainant with knowledge regarding the closure of the account-in-question which is borne out only by statement of account annexed at page 76 of the revisional application. That apart, the matter arises from a point of time where the petitioner had already defaulted in repaying the de facto complainant's dues and entered into a settlement agreement with the respondent, having admitted the previous dues of the petitioner to the de facto complainant of more than Rs.2.00 cores. In fact, the de facto complainant, as evident from the settlement agreement, had condescended to reduce the payable amount and settle the amount at a lesser quantum. However, even thereafter, as borne out by the several letters which are part of the records, the petitioner failed to the make the payment to the petitioner, giving rise to the criminal complaint lodged by the de facto complainant.
Even going by the ratio laid down in the matter of A.M.Mohan (supra), there are both civil and criminal components in the present case, since the de facto complainant has established in its complaint
a prima face case of the petitioner having tried to evade payment of the dues of the de facto complainant, thus incorporating the ingredients of Section 420 of the Indian Penal Code in the FIR. This is not a case where it can be said beyond doubt that the de facto complainant has tried to convert a purely civil dispute into a criminal case, since ingredients of both fraud as well as civil liability are found on a prima facie footing in the present case. The Supreme Court, while discussing the principles of quashing an FIR, laid down that a compliant may be quashed where it is a clear abuse of the process of the court and when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
In the present case, however, as annexed to the quashing application itself, I find a letter admitting the petitioner's liability of about Rs.4.5 crores to the de facto complainant which is also coupled with a photocopy of the cheque of the same amount. Although the petitioner seeks to argue that the said letter is a manufactured document, it is premature at this stage to enter into such allegation and counter allegation, more so, since it is the petitioner who has annexed the same to the revisional application. In the present case, the test laid down by the Supreme Court regarding whether allegations in the complaint disclose a criminal offence or not is satisfied inasmuch as the ingredients of fraud find place in the FIR.
The arguments advanced by the parties cannot be resolved at this premature stage unless the matter reaches the stage of chargesheet and/or trial and the parties have an opportunity to adduce
evidence and cross-examine each other's witnesses. Thus, at this juncture, this Court does not find any scope or necessity of quashing the FIR against the petitioner.
Accordingly, CRR/31/2023 is dismissed.
It is made clear that this Court has not entered into merits of the allegations and counter allegations between the parties and it is kept open for all courts/forum where the matter is taken by the parties to adjudicate the dispute independently and in accordance with law.
Re: CRM (SB)/1/2024 Learned counsel for the State seeks some time to produce the case diary. Accordingly, let the matter stand adjourned till June 24, 2024.
( Sabyasachi Bhattacharyya, J. )