~·

D. N. BHATIACHARJEE & ORS.

STATE OF WEST BENGAL & ANR.

March 22, 1972

[A. N. GROVER AND M. H. BEG, JJ.]

Code of Criminal Procedure (Act 5 of 1898), s. 203-Power of Magis trate to dismiss complaint.

An order of dismissal of complaint under s. 203 Cr. P.C .. has to be made on judicially sound grounds.

It can only be made where the reasons given disclose .that the proceedings cannot terminate \luccessfully in a convicton. A Magistrate is not debarred, at this stage, from goi'lg into .the merits df the ev; denee produced by the complainant, but the object of such consideration could only be to determi 1e whether 1here are sufficient grnund!i for proceeding furtoor.

The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessary fail.

On the other hand, such grounds indicate the need for proceeding further in order to discover the truth after a full and 'proper investigation. If, however, a bare perusal of a complaint or the evidence led in supjll)rt of it show that the essential ingred'ents of the offences alleged are ab6ent or that too dispute is only of a cvil nature or that there are such patent absurdit es in the evidence produced that it would be a waste of time to proettd further, the complaint _could be properly dismissed under the section. [9'76 E-Hl

Where, therefore, the Magistrate dismies a complaint on a misread .. ing df the oral evidence and 'he evidence, in fact, does not reveal a'ly absurdity so as to merit a forthright dism:&sal of too complaint under the section, such an order is fit to be set aside by the High Cotirt.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156 of 1969.

Appeal b!y. special leave from the judgment and order dated April 15, 1969 of the Calcutta High Coutt in Criminal Revision No. 1114 .of 1963.

C. K. Daphtary and D. N. Mukherjee, for the appellants.

G I>. K. Chatterjee and G. S. Chatterjee, tor respondent No. I.

P. K. Mukherjee, for respondent No. 2.

The Judgment of the Court was delivered by

BeJl, J.

On 1f .. 7 -1963 Sunilakshva Choudhry a :Oirector of the Metropolitan Indu1trial Corporation Ltd., CIcut a, havi"g

been authorised by its Boa•d of Directors, filed a complaint agaiqst the appllant Debndra Na•h Bhattacharjee (or Bhattacharya), a former Director, and Banamali Pathak, Cashier of the Bengal 16-L106ISupcin2 .

Luxrni Cotton Mills Ltd., and Hiran Roy, Chief Accountant of the Bengal Luxmi Cotion Mills Ltd., alleging offence punishable under Sec.ions 406/409/467/471/477A/109 JndiJn Penal CJde.

The c:mplainant alleged that, when the Life Insurance business was natioiialbeJ in 1956 the Metrvp !Lan Insurance Co. Ltd.

(hereina, ter referred to as 'the Oimpany') received a sum of about Rs. 10,25,523/· as compensation, a.nd the Company was transformed in.-.:i Metropohtan Industrial Corporaiion (hereinafter referred to as 'the Corporation').

The bu; iness of the Corporation wa; s"id to be c:mfined to making of loans, and dea ings in socks and shares. The complainant was Director of the Company in 1957 and the accused app:llant D. N. Bhattasharjee was albged to be its Managim Di ec or with abs'.llu\e control over the funds of the Company and the only person au'horised to operate the t11anking account of the Company with the Metropolitan Bank Ltd. Jloundabbut October, 1958, alth. ui; h. th: appellant Bhattach1rj 'e was said to have ceased to be the Managing Di-ector, yet, he is alleged to have continued to exrcise the powers he had possessed a; M 1n1ging Director.

Af•er the Company became the Corp ration certain activities of the appellant D N. Bhattacha•jee ae al'eged to hwe come to light and ccmpelbd his resignation on 28-2-1963 so that he hande1 over s0me of the B01ks and reco•ds of the Corporation to the complainant.

The c'>mnlainant, after having examined the records hmded over by D. N. Bhattacharjee, claimed to have found m 1n'bly pay shee•s containing mimes of certain

em~Joyees who were not emnloyees d the Corporatio.n at n and who wee smpced to be fictitiouc as they could not be trased. The comphinant alleed that, .., n furthe• enquiry, he 'qurid that the Corporation had not employed anybbdy at all but h 0 d taken occasional holp from cera•n empJyees of sister concerns which hqd th•ir cfli"es in the s1me building.

Tn o•her words. •he c0mrlainant claimed to have disc've•e1 that the pay-<h~;~ of the Co-voration were totallv f1lse and fabri"ated.

He also comuhined that Jictitious signatures of suppose0ly different persons appeare1 to him to have been m1de by a single pe•s0n so as to appear as signatures of diffre>lt actually existing individuals.

The comota'nant al'eed that his susnicions were confirmed by sending these alloge'1 sigoatur_es t~ a H •ndwriting Exuert f"r ouinion: Accoding to the comulainant, all •hh was dne at the instance of or with the complicity of D. N. Bhattach1riee and wi•h the aid of the two other co-accused.

Tt was asser•e<i that D. N. Bb<i.•t•charjee h•d full lmowled•e f'f what was taking place and had disbonestlv misanoro. priated e.nd c 0 nver'e'1 to his own ue lare sums of money relongilllr .to the cmoration. He aiid •lie .. two cO-•ccmed, who are said ti;) /iil.ve actually Jll'a'de >the e11•iies, wee alleged to have been tJ'eaRed in a GOfl<.nlr'l.C:.V. . 'l'b"- comtill>inant gWe a tis• of five Wis, :lncJudliig µiat .d. • ):land~ &flert, -..id he ielied

D. N. BHATTACHARJEE v. WEST BENGAL (Beg, J.) 97$

upon a number of account books, documents, and records of the Company and the CorporatiJn.

After an enquiry into the allegations contained in the complaint a Presidency Magistrate found p. ima facie evidenc.e of a conspiracy to commit beach of trust by foring receipts and use of forged receipts and falsification of accounts.

On 2-8-1963, the Presi-· dency Magistrate, ordered the case to l6e put up before the Chief Presidency Magistrate for further orders.

On 10-8-1963, the Chief Presidency Magistrate, after giving particulars of the prosecution case and the evidence produced to support it, went on to observe : "In assessing the evidence adduc; d C for the purpose of taking out a process, certain broad tacts and circumstahces and probabilities cannot, in my opinion, be overlooked".

The Chief Preiidency Magistrate . then mentioned the reasons which, in his opinion, justified a dismiss1l of the complaint

wihout issue of process.

He pointed out : firs•ly, that the Company, which was admitted to be a going concern, 'must have had D some of its own employees who must have been taken ove~ by the Corporation in 1960; secondly, that D. N. Bhattacharjee, at the time of his resignation on 28-2-1963 had handed over the records and accunt books of the Company to the complainant which fact indicated that he "probably" did not know th'at any of these were

fored for fabricated; thirdly, that it was "improbable" that the E Corporation could carry on its business without its own emrybyees; fourthly, that evidence had not been led to show what enquiries were made to indicate that .the names on the pay sheet were fictitious; fifthly, that the complainant had h; mself admitted that one or two persons shoMI in the pay sheet might have been employed by the Corporation and that this demoliihed" the wh0]e prosecution ca'e of fictitious entries; and~ six'hly, that the opinbn of the F Handwriting Expert "does not appear to be empJiatic" and w1s. "]"' not supported by "sufficient reasons''. On...trrese grounds, the Chief Presidency Magistrate, after holding thilt there were "rea11v, no sufficient grounds to proceed furth"t'" dismissed the complaint under Sec. 203 Criminal Procedure Code.

G The complainant then invoked the Revisional jurisdition of the Calcutta High Cou-t. That Court, af'er an examination o.f the com'l!aint, the evidence produced for the purpose of i; suing proce's to the accused persons, and the order of the Chief P•esidency Magistrate, came to the conclusion •hat the order of dismiss1! of the complaint under Sec. 203 Criminal Procedure Code was imoroner. ll The High Court held that the o•der contained a pre-mature verdict on the merits of thP, case.

Furthermore, the High Court pointed out that the Chief Presidency Magistrate had .misread the oral evidence in findinp; that the complainant said that one or two persolll'

mentioned in the pay sheets might have been employed by the _A Company sometimes. . A correct reading of the evidence of the complainant, which we have also examined, was that one <Jr two persons may have been employed by the Company from time to time but none of the persons whose names appeared in the pay sheets were any of those persons.

Even if the complainant Jiad said that some of the entries in the account books appeared to be R deliberately false, the complaint would . not have merited a forthright dismissal without further enquiry. The High Court, in our opinion, rightly considered the order pronouncing a judgment on the merits of the case on bare probabilities. and surmises to be premature. The High Court, very rightly, did not express any opinion on merits of the. prosecution case beyond saying \hat the C case call'ed for further enquiry.

Jt, therefoe. set aside the order · of dismissal under Section 203 of the Criminal Procedure Code and' sent back the case for farther enquiry in accordance with law.

The accused have come up to this Court by Special leave against the above--mentioned order of the High Court for further enquiry into the case. It is urged that the High Court should not have, in exercise of its revisional jurisdiction, set aside the Chief Presidency Magistrate's order. We are unable to accept this contention because we think that the Presidency Magistrate had not cor ectly understood the scope and pupose of the powe.r to dismiss a complaint under Section 203 Criminal Procedure Code.

It has to be remembered that an order of dismissal or a complaint under Section 203 Criminal Procedure Code has to be made on judicially sound grounds.

It can only be made where the reasons given disclose that the poceedings cannot terminate successfullv in a conviction.

It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant.

But, the object of such considera-. lion of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for poceeding further or not.

The mere existence of some grounds which would be mate•ial in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessaily fail.

On the other hand, such grounds may indicate the need for. proceeding further in order to discover the truth after a full and proper investigation.

If, however, a bare perusal of a ccmolaint or the evidence led in supprt of it shw that essen•ial in°redients of the offences alleged are absent or ti)at the dispute is only of a civil nature or that there are such patent absurditi 'S in evidence produced that it would be a waste of time to proceed further, the comphint could be properly dismissed under Section 203 Criminal Procedure Code.

D '

D. N. BHATTACHA!lJEE v. WEST BENGAL (Beg, /.) 977

In the case before us, the learned Magistrate Wl!S in error in assuming that merely because the names of one or two former employees of the Company may be mentioned in the pay-sheets the whole prosecution case was actually demolished. Moreover, as the High Court had rightly pointed out, the complainant's actual evidence had fully supported and not contradicted any part of the complaint.

No such ab urdity was rev, i!aled by .he complainant's evidence as to merit a forthright di-missal of the complaint under Section 203 Criminal Pocedure Code.

What the M gi; trate had to-determine at the stage of issue of proccis was not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie ca5e on the assumption that "'hat was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably held to be true.

As e. in agreement with the High Court, think that the 6rder Of the Chief Presidency Magistrate in dismissing the complaint was pre-mature and was also based 01!_ obvious misconceptions, we dismiss this appeal.

V.P.S.

Appeal dismissed: