D. N. Bhatiacharjee & Ors. v. State Of WEST Bengal & Anr.

Judgment

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

Appeal bly: special leave from the judgment and order dated

April 15, 1969 of the Calcutta High Court in Criminal Revision No, 1114.of 1963.

C. K. Daphtary and D, N. Mukherjee, for the appellants. P. K. Chatterjee and G. 8, Chatterjee, for respondent No, 1. P, K. Mukherjee, for respondent No, 2.

The Judgment of the Court was delivered by

Beg, J. On 11-7-1963 Sunilakshya Choudhry a Director of the Metropolitan Industrial Corporation Ltd. C-leut’a, havi-g been authorised by its Board of Directors, filed a complaint against the appellant Deb:ndra Nath Bhattacharjee (or Bhattacharya), 2 former Director, and ‘ Banamali Pathak, Cashier -of the Bengal 16—L106 1SupCl/72 ‘

974 SUPREME COURT REPORTS [1972] 3 SCR.

Luxmi Cotton Mills Ltd,, and Hiran Roy, Chief Accountant of the Bengal Luxmi Cotton Mills Ltd., alleging offence punishable under Sec.ions 403/409/467/471/477A/109 Indian Penal Cude.

The c-mplainant alleged that, when the Life Insurance business Was nationalised in 1956 the Metrup lian Insurance Co. Ltd. (hereina:ter referred to as ‘the Company’) received a sum of about Rs. 10,25,523/- as compensation, and the Company was transformed inso Metropolitan Industrial Corporation (hereinafter referred to as ‘the Corporation’). The business of the Corporation was Suid to be confined to making of loans, and dea ings in stocks and shares. The complainant was Director of the Company in 1957 and the accused app2ilant D. N, Bhattacharjee was allzged to be its Managinz Di-ec or with absolute control over the funds of the Company and the only person au‘horised to operate the banking account of the Company with the Metropolitan Bank Ltd. Roundabout October, 1958, alth.ugh, th: appellant Bhattacharj-e was said to have ceased to be the Managing Divector, yet, he is alleged to have continued to exercise the powers he had possessed as Managing Director. After the Company became the Corp-ration certain activities of the appellant D N. Bhattacharjee a-e al’eged to have come to light and ccmpelled his resignation on 28-2-1963 so that he handed ever some of the Bovks and records of the Corporation to the complainant. The comolainant, after having examined the records handed over by D. N. Bhattacharjee, claimed to have found mon‘hly pay sheets containing names of certain emloyzes who were not emnloyees cf the Corporation at all and who were susp2c'ed to be fictitiou: as they could not be traced. The complainant alleged that, cn further enquiry, he ‘ound that the Corporation had not employed anybody at all but hod taken occasional help from cer‘a'n empl-yees of sister concerns which had their cffices in the same building. Yn other words. the complainant cla'med to have disc-vered that the pay-sheets of the Corporation were fotallv false and fabricated. He also complained that fictitious signatures of supposedly different persons appeared to’ him to have been made by a single person so as to appear as signatures of different actually existing individuals. The comola‘nant al'eged that his susnicions were confirmed by sending these alleged signatures to a H-ndwriting Exvert for opinion; According to the comolainant, all this was done at the instance of or with the complicity of D, N. Bhattacharjee and with the aid of the two other co-accused, Tt was asserted that D. N. Bhattacharjze had full knowledce of what was taking place and had dishorestly misanoropriated and c-nverted to his own ure larce sums of money telonging to the Corporation. He and the two co-2ccused, who are said to have actually made the entries, weve alleged to have been encased in a consniracy. The complainant gave a list of five Witawecs, including that of a Handwriting Expert, and he relied

D. N. BHATTACHARJEE v. WEST BENGAL (Beg, J.) 975 upon a number of account books, documents, and records of the Company and the Corporation.

After an enquiry into the allegations contained in the complaint a Presidency Magistrate found p. ima facie evidence of a conspiracy to commit bzeach of trust by forzing receipts and use of forged Teceipts and falsification of accounts, On 2-8-1963, the Presidency Magistrate, ordered the case to be 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 for the purpose of taking out a process, certain broad facts and circumstahces and probabilities cannot, in my opinion, be overlooked”. The Chief Presidency Magistrate. then mentioned the reasons which, in his opinion, justified a dismissal of the complaint without issue of process. He pointed out : firstly, that the Company, which was admitted to W2 a going concern, ‘must have had some of its own employees who must have been taken over 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 account books of the Company to the complainant which fact indicated that he “probably” did not know that any of these were forged for fabricated; thirdly, that it was “improbable” that the Corporation could carry on its business without its own emoloyees; 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 himself admitted that one Or two persons shown in the pay sheet might have been employed by the Corporati+n and that this “demolished” the whole prosecution case of fictitious entries; and, six‘hly, that the opinion of the Handwriting Expert “does not appear to be emphatic” and wis alse not supported by “sufficient reasons”. On thése grounds, the Chief Presidency Magistrate, after holding that there were “really, no sufficient grounds to proceed further” dismissed the complaint under Sec, 203 Criminal Procedure Code.

The complainant then invoked the Revisional jurisdiction of the Calcutta High Court. That Court, after an examination of the comnlaint, the evidence produced for the purpose of issuing process to the accused persons, and the order of the Chief Presidency Magistrate, came to the conclusion that the order of dismissal of the complaint under Sec. 203 Criminal Procedure Code was imoroner. The High Court held that the order contained a pre-mature verdict on the merits of the case. Furthermore, the High Court pointed out that the Chief Presidency Magistrate had misread the oral evidence in finding that the complainant said that one or two person’

976 SUPREME COURT REPORTS. [1972] 3 SCR.

mentioned in the pay sheets might have been employed by the Company sometimes. A correct reading of the evidence of the complainant, which we have also examined, was that one or 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 had said that some of the entries in the account books appeared to be 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 that the case called for further enquiry. Jt, therefore, set aside the order of dismissal under Section 203 of the Criminal Procedure Code and' sent back the case for further 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 pu-pose of the power to dismiss a complaint under Section 203 Criminal Procedure Code.

It has to be remembered that an order of dismissal of a com- plaint 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 p-oceedings cannot terminate successfully 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-.

tion of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for p-oceeding further ‘or not. 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 necessa-ily 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 comolaint or the evidence led in support of it show that essential in-redients of the offences a’leged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would te a waste of time to proceed further, the complaint could be properly dismissed under Section 203 Criminal Procedure Code.

a ~]

D. N, BHATTACHARJEE v. WEST BENGAL (Bég, J.) 977

. In the case before us, the learned Magistrate was in error in assuming that merely because the names of one or two former em-

‘ployees 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 revéaled by .he complainant's evidence as to merit a forthright dimissal of the complaint under Section 203 Criminal Procedure Code. What the M ‘gistrate had to-determine at the stage of issue of process 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 case on the assumption that what was stated could be true

. unless the prosecution allegations were so fantastic that they could not reasonably be held to be true.

As we, in agreement with the High Court, think that the order of the Chief Presidency Magistrate in dismissing the complaint was pre-mature and was also based on obvious misconceptions, we dismiss this appeal.

V.P.S. Appeal dismissed, aia ee ine