Court: Calcutta High Court
Bench: JUSTICE Joymalya Bagchi
Baiju Radhakrishnan Nair vs Unknown On 14 July 2017
Law Point:
Quashing of proceedings – Police report – Documents do not form part of police report cannot be looked into by High Court in exercise of inherent jurisdiction to quash criminal proceedings.
JUDGEMENT
Petitioner has approached this Court assailing the proceeding in Hare Street Police Station Case No.432 dated 24.7.2014 corresponding to G. R. Case No.1632 of 2014 pending before the learned Chief Metropolitan Magistrate, Calcutta under Sections 408/420/468/471/477A/120B of the Indian Penal Code.
The gist of the allegations in the impugned charge sheet is to the effect that the petitioner was appointed as Deputy General Manager (Export) of M/s. Birla Tyres on 2.5.1994 and with time rose in the corporate hierarchy to the capacity of Vice-President, International Business Division of the said company. It has been alleged that in such capacity, the petitioner acted as an agent of the company and dealt with its foreign customers and in the course of such activity was entrusted with payments made from such customers in connection with supplies dispatched to them by way of exports. The petitioner had to account for such receipts to the complainant company. It is further alleged that in the course of discharge of such duty during the financial years of 2011-2012, 2012-2013 and 2013-2014, the petitioner had misappropriated a sum of Rs.3,93,48,533/ by floating a separate company under the name and style of M/s. Brijo Tyres and Wheel Systems Pvt. Ltd. by dishonestly portraying to the foreign buyers that the later company was a sister concern of the complainant company. On such dishonest and fraudulent representation the petitioner had diverted payments made by the said foreign buyers to the tune of Rs.1,19,79,133/- by siphoning it into bank accounts of the said company.
It appears that the aforesaid company which was falsely represented as a group company of the complainant company, was a family holding of the petitioner and his relations including his sister. Such fraudulent facilitated were engineered by the petitioner creating a fictitious identity in the electronic domain. Apart from making the aforesaid dishonest oral representations, the petitioner reinforced such representation by creating a fictitious identity in the electronic domain wherein he claimed the aforesaid company floated by him to be a sister concern of the complainant company.
Finally, when the petitioner sought to form the complainant company resign in 2014 without settling the accounts the aforesaid fraud was detected. Consequently, the complainant company refused to accept his resignation and reported the matter to the police authorities. As the police authorities failed to act, direction was obtained from the learned Magistrate under Section 156 (3) of the Code of Criminal Procedure resulting in the registration of the impugned criminal case.
The impugned criminal proceeding was challenged before this Court at the stage of the registration of the First Information Report. By order dated 9.11.2015, a learned Single Judge of this Court directed that the investigation in the criminal case shall continue but no coercive measures shall be taken against the petitioner if he co-operated with the investigation. Investigation proceeded in the matter and finally police report was filed before the Magistrate and cognizance has been taken thereon. It is also pertinent to note that the sister of the petitioner, namely Beena Rani Radhakrishnan Nair had challenged the proceeding before this Court in C.R.R.421 of 2015 and by order dated 18.1.2016, a learned Single Judge of this Court quashed the proceeding so far as the petitioner is concerned. While doing so, this Court had inter alia, observed that the proceeding against the petitioner shall continue. A special leave petition was preferred before the Hon’ble Apex Court wherein by order dated 13.4.2016, the Hon’ble Apex Court expunged the said direction so far as the petitioner is concerned. The complaint company has, on the other hand, assailed the order of quashing of the proceeding so far as the sister of the petitioner is concerned before the Hon’ble Apex Court which is pending consideration before the said court.
Mr. Majumder, learned Counsel appearing for the petitioner submits that the allegations even, if believed to be true, do not show that the offences were committed within the territorial jurisdiction of the learned Magistrate so as to empower him to issue direction to investigation under Section 156 (3) of the Code of Criminal Procedure and consequential taking cognizance on the police report filed pursuant to such invalidity. He argued that uncontroverted allegations speak of alleged fraudulent representations made to the foreign customers at Beirut and Dubai outside the territory of India and monies, if any, were also received in the foreign country. The allegations indicate that the funds were thereafter credited to the account of M/s. Brijo Tyres and Wheel Systems Pvt. Ltd. in Kerala and, therefore, no part of cause of action arose within the territorial jurisdiction of the learned Magistrate. He further submitted that the impugned criminal proceeding is a vexatious one and had been instituted as the petitioner had chosen to resign from the complainant company in 2014. M/s. Brijo Tyres and Wheel Systems Pvt. Ltd. had independent contractual relationship with the foreign customers as would be evident from the consultancy agreement, annexed at page 89 of the revisional application and hence, the allegations of representing the said concern as a sister concern of the complainant company is patently absurd and inherently improbable. It is also submitted that the complainant company ought to have approached the superior police officer under Section 154 (3) of the Code of Criminal Procedure prior to invocation of powers under Section 156 (3) of the Code of Criminal Procedure which, in fact, had been affirmed on the self same date when they approached the police station.
Mr. Chowdhury, learned Counsel appearing for the State produced the records of investigation and submitted that investigation has unraveled a grave corporate fraud by the petitioner who by fraudulently representing his company viz., M/s. Brijo Tyres and Wheel Systems Pvt. Ltd. as a sister concern of the complainant company had dishonest misappropriated, large sums of monies entrusted to him which he was required to account for at the head office of the complainant company in Kolkata where the petitioner was posted. It is also submitted that the fraudulents representations were made not only orally but also reinforeced by creating fictitious electronic mail accounts and to create an impression that the petitioners company was a group company of the complainant company and thereby the amounts due and payable to the complainant company were diverted to the credit of the petitioner’s company and misappropriated.
Mr. Ghosh, learned Senior Counsel appearing for the opposite party/complainant company submitted that the complainant had approached the police authorities under Section 154 of the Code of Criminal Procedure and as the said police authorities directed them to obtain a court order, proceeding under Section 156(3) of the Code of Criminal Procedure was resorted to. There is no jurisdictional error or illegality in invocation of the magisterial power in that regard. He further submitted that the materials on record unequivocally show that the petitioner who was acting on behalf of the complainant company had made various dishonest representations and on the strength of which he had diverted the entrusted monies to the credit of his company and thereby misappropriate such funds. He submitted that the petitioner company was no way connected with the complainant company yet no strength of dishonest representations is a false impression was generated in the mind of the buyers that the said company was a sister concern of the complainant company. It is further submitted that payments received to the petitioner on account of exports to foreign buyers was required to be accounted for Kolkata. Hence, in view of Section 181(a) Cr.P.C., the learned Magistrate had ample jurisdiction to entertain and try the case. it is also submitted that the complainant had approached the Magistrate under Section 156(3) Cr.P.C. as he was directed to do so by the police authorities themselves.
I have considered the rival submissions of the parties in the light of the materials on record. Admittedly, the petitioner was the senior Vice President, International Business Division of the company. He was pasted at Kolkata and was required to account for the monies entrusted on him on account of the transactions between the complainant company and its foreign buyers at the head office at Kolkata.
Uncontroverted allegations in the impugned prosecution show that the petitioner had interacted with the foreign buyers as an agent of the complainant company on behalf of the complaint monies company had misappropriated the said sums of money by credit them in favour of a company floated by him in Kerala with his family members. It is true that the instant proceeding against the sister of the petitioner who was a direction of the said company was quashed by this Court. However, the complicity of the petitioner in the instant crime is substantially graver than that of his sister. The petitioner was a senior officer of the complainant company and was entrusted with the duty of dealing on its behalf with the foreign buyers and by misusing such position had misappropriated monies received by him on behalf of the complainant company. No such jural relationship existed etween the sister of the petitioner and the complainant company. That apart, the said order of quashing of the proceeding against the sister of the petitioner is the subject matter of challenge before the Hon’ble Apex Court. suffice to say, the petitioner stands on a completely different footing from his sister and cannot get any advantage of the score of parity due to the quashing of the proceeding so far the latter is concerned.
Let me examine the plea of absence of territorial jurisdiction in the light of Section 181(a) Cr.P.C.
Section 181 (4) of the Code of Criminal Procedure inter alia, provides that the offence of criminal breach of trust may be tried in any of the following places:
1) where the offence was committed;
2) any part of the property which is the subject matter of the offence was received or retained; or
3) where the accused was required to return or account for such property.
In the aforesaid factual matrix, there cannot be any dispute that the petitioner was required to account for the alleged misappropriated properties at the head office of the complainant company in Kolkata and, therefore, the invocation of powers of the Magistrate either under Section 156 (3) of the Code of Criminal Procedure or taking of cognizance on the police report under Section 19(1)(b) of the Code of Criminal Procedure cannot be said to be without jurisdiction.
It has also been argued that the allegation that the petitioner had fraudulently represented his company as a sister concern of th complainant company in 2011 is patently absurd as his company had entered into a consultancy agreement with the foreign buyers viz., Inter World Shipping Agency LLC Dubai way back in 2009, which is annexed at page 42 of the revision petition.
It is trite law that documents do not form a part of the police report cannot be looked into by the High Court in exercise of inherent jurisdiction to quash a criminal proceeding. The court would restrict its scrutiny only to materials which are a part of the police report or its accompaniments under Section 173 (5) of the Code of Criminal Procedure. However, in rare cases, the High Court may in the interest of justice may look into unimpeachable documents or sterling quality which may wholly negate the substratum stretch of the accusation against an accused and quash such a proceeding in the interest of justice.
Having examined the consultancy agreement annexed to the revision petition, I find that the scope of the said consultancy agreement was to provide consultancy in the matter of tyres of the foreign company in India. It had been nothing to do with the subject matter of the instant prosecution viz., supply of tyres by the complainant company to the foreign buyers and the misappropriation of sale proceeds entrusted to the petitioner in connection with such transit. Hence, I am of the opinion that the aforesaid document does not fall in the category of unimpeachable document or sterling quality which renders the impugned prosecution against the petitioner as an abuse of process of court.
Finally, it has been argued that the complainant ought to have approached the superior police officer under Section 154 (3) of the Code of Criminal Procedure prior to seeking a direction from the learned Magistrate under Section 156 (3) of the Code of Criminal Procedure. I am unable to accept such contention as it has been averred in the petition before the Magistrate that the police authorities had directed the complainant to obtain an order from the court. In view of such assertion, question of approaching the superior police officer under Section 154 (3) of the Code of Criminal Procedure is rendered irrelevant. Moreover, lodging complaint with a superior police officer under Section 154 (3) of the Code of Criminal Procedure is not a condition precedent before approaching the Magistrate under Section 156 (3) of the Code of Criminal Procedure. Any aggrieved person may approach the jurisdictional Magistrate directly under Section 156 (3) of the Code of Criminal Procedure, if the officer-in-charge refuses to draw up a F.I.R. o the information of commission of cognizable offence instead of lodging complaint with the concerned Superintendent of Police under Section 154 (3) of the Code of Criminal Procedure which though an alternate option is not an exclusionary one.
For the aforesaid reasons, I do not find any merit in the instant revision petition and the same is dismissed.
It is open to the petitioner to canvass his defences in accordance with law before the trial court at the appropriate stage of the proceeding and the trial court shall proceed with the matter independently and in accordance with law without being swayed by any observations made by me in this order.
The revision petition as well as the application are dismissed. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.
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