Syamal Kanti Chakrabarti, J. - (1.) THE instant revisional application under Section 482 Cr.P.C. has been preferred for quashing the entire proceeding of G.R. Case No. 1548 of 2005 arising out of Memari Police Station Case No. 242 of 2005 under Sections 406/420 IPC now pending before the learned Judicial Magistrate, 5th Court, Burdwan.
(2.) IT is submitted on behalf of the petitioner Ramapada Shaw that on 11.11.2005 one Susanta Kumar Majilla, the District Manager, BENFED, Burdwan Branch under the West Bengal State Cooperative Marketing Federation Limited lodged a complaint against Messrs. Ma Chandi Rice Mill, Jabui, P.S. Memari, District Burdwan and its members namely, Ramapada Shaw (the present petitioner), Shyamapada Show and Muktipada Show alleging, inter alia, that all the partners of the above rice mill have dishonestly misappropriated 23,860.71 quintals of paddy which were entrusted to the aforesaid rice mill between the period from 25.01.2005 to 08.03.2005 which were procured from different cooperative societies of the district under the direction of the District Manager of Milling. The said quantity of paddy was required to be hasked and to deliver the resultant rice thereof to the District Controller (Food & Supplies), Burdwan under the support price scheme of the State Government. According to the complainant the resultant rice of the said entrusted paddy would be 1503.18 Metric Tonne (M.T.) but the mill delivered only 300 M.T. up to August, 2005 and was bound to deliver the remaining quantity of 1203.18 M.T. by September, 2005. The price of the said outstanding quantity of rice would be Rs. 1,12,58,400/-. Several reminders were issued to the said rice mill on several occasions, but to no effect and thus, they misappropriated the price of undelivered huge quantity of rice as aforesaid and thereby also cheated the Government and as such liable for prosecution under Section 406/420 IPC. On the basis of such complaint the aforesaid Memari P.S. Case no. 242 of 2005 dated 12.11.2005 under Section 406/420 IPC was started. On receipt of such information the petitioner filed an application under Section 438 Cr.P.C. before the learned Additional District and Sessions Judge, Burdwan who rejected the prayer and thereafter similar prayer was made before this Honble Court. In course of consideration of such prayer the Honble Court was pleased to direct the petitioner to pay a sum of Rs. 10,00,000/- to the de facto complainant which was complied with. The other two accused persons filed a special leave to appeal being no. 1312 of 2006 before the Honble Apex Court praying for grant of bail and Their Lordships were pleased to direct those petitioners to pay a further sum of Rs. 20,00,000/- to the Assistant Registrar of Cooperative Society, Burdwan Range I, District Burdwan which was also complied with on 18.05.2006. It is further submitted on behalf of the petitioner that after completion of investigation charge-sheet has been filed in this case under Section 406/420 IPC and the case has been subsequently transferred to the Court of learned Judicial Magistrate, 5th Court, Burdwan. Being aggrieved by and dissatisfied with the result of such investigation the petitioners have assailed the entire proceedings contending, inter alia, that there was an agreement between the petitioner and the opposite party no. 2, District Manager, BENFED under the West Bengal State Cooperative Marketing Federation Limited, Burdwan Branch, District Burdwan for such supply of rice against receipt of certain quantity of paddy and accordingly from time to time the petitioner used to deliver the rice. Unfortunately on 20.02.2005 the petitioner met with a serious accident at Benagram, District Burdwan and was subjected to prolonged treatment on various places and ultimately he was released from the Divine Nursing Home in July, 2005. In spite of such serious accident the petitioner delivered 3,000 quintals of rice to the opposite party no. 2 between the period from March, 2005 and August, 2005. The business of the petitioner had suffered a loss during his prolonged treatment and they had to bear the interest of loan of Rs. 45,00,000/- received from bank authorities. So in response to the notice of the opposite party dated 28.07.2005 the petitioner could not supply the balance quantity of rice. On 12.08.2005 the petitioner made a request in writing praying for extension of time to deliver the balance quantity of rice as he was still in bed-ridden condition. In the meantime the petitioner supplied 108 M.T. of common paddy and 10.090 M.T. common paddy on 31.08.2005 to the opposite party no. 2 in spite of his financial hardship and ailing condition. As the opposite party no. 2 remained silent after receipt of his representation for extension of time the petitioner filed an application under Article 226 of the Constitution before this Honble Court being registered as W.P. No. 17625(W) of 2005 which was dismissed for default on 22.02.2006 for which another application for restoration was filed which has been registered as the CAN 1696 of 2006, which is still pending.
(3.) IT is further contended that on 1st December, 2005 the opposite party no. 2 further filed a dispute case before the Assistant Registrar of Cooperative Societies, Burdwan Range-I, District Burdwan for recovery of the alleged sum which has been registered as Dispute Case No. 4 of 2005-06 praying for a direction upon the partners of the said firm either to deliver 1200 M.T. of rice or equivalent price being Rs. 1,12,58,400/- with 9 per cent interest till the date of application and thereafter at the rate of 18 per cent per annum till realisation and to appoint a Receiver for the said rice mill and attach the property of the defendant firm etc. has been finally disposed of by Cooperative Tribunal in the meantime. Under the aforesaid circumstances it is contended on behalf of the petitioners that the instant proceeding is not sustainable in law on the grounds that the opposite party no. 2 has not stated anything regarding entrustment of paddy by different cooperative societies to the Manager, BENFED for delivery to the petitioner company. No document has been filed to show that in fact 2386.71 quintal of paddy was actually delivered to the rice mill during the period from 25.01.2005 to 08.03.2005. Therefore, in absence of valid entrustment no case under Section 406 IPC will lie against the petitioner within the meaning of Section 405 IPC. Secondly, from the admission in the complaint it will appear that there has been part delivery of rice against receipt of total quantity of paddy and the said fact itself proves that there is no deception at the initial stage of transaction and as such there is no prima facie material on record to proceed against the present petitioner under Section 420 IPC. The definition of fraudulently and dishonestly mentioned in Sections 24 and 25 of the Indian Penal Code will fortify such arguments. Therefore, the petition of complaint does not disclose at all any material fact constituting the alleged offence of Section 406 and 420 IPC. At best in the instant case IO could investigate for commission of offence under Section 403 IPC. But such a prosecution is also not sustainable in law without previous sanction of the Magistrate which has not been accorded in the instant case.;