- (1.) This revisional application has been preferred by the petitioner praying for quashing the proceeding of section K2 Case No. 169 dated 12.6.01 i.e. Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729 of 2001) under section 406/420 of IPC and the order dated 18.12.02 passed by the learned Chief Metropolitan Magistrate (hereinafter called the CMM), Calcutta thereby issuing warrant of arrest against the petitioner in connection with the aforesaid case.
(2.) Learned Advocate for the petitioner contended that the de facto complainant-cum-informant Monohor Agarwal previously filed a complaint against this petitioner in the Court of the learned CMM which was registered as complaint case C/2409 of 2001 under section 138 of the Negotiable Instruments Act (hereinafter called the N I Act) alleging that the accused petitioner issued two cheques one bearing No. 004722 dated February 19, 2001 for Rs. 4,00,000.00 and another cheque bearing No. 004723 dated February 26, 2001 for Rs. 4,86,464.45 both drawn on UCO Bank, Kankurgachi Branch in favour of the de facto complainant company towards value of the goods delivered to petitioner and in discharge of liability. The said two cheques were dishonoured when reported by the bank with the remark 'exceeds arrangement'. After serving legal notice and when the accused petitioner did not pay the said amount of cheques the complainant filed the complaint under section 138 of the N I Act and the said case is now pending before the learned Metropolitan Magistrate, 12th Court, Calcutta. The said complaint case was filed on 22.5.01. Thereafter again on 12.6.01 the same complainant lodged FIR before the Shakespeare Sarani P. S. under section 406/420 of IPC against this petitioner for criminal breach of trust and cheating in respect of the same amount and the same cheques for which he earlier filed the complaint case C/2409 of 2001. In the first complaint which the de facto complainant filed there was no mention of cheating.
(3.) The subsequent complaint/FIR filed by the de facto complainant over same matter and same facts in respect of same cheques is bad in law and the second complaint is mala fide. Accordingly, continuation of the criminal proceeding started on the basis of 2nd complaint/FIR started on the basis of Shakespeare Sarani P. S. case by the complainant is an abuse of the process of Court and second complaint being mala fide is not maintainable. The said criminal proceeding which arose out of second complaint being Shakespeare Sarani P. S. Case No. 169 dated 12.6.01 (G. R. Case No. 1729 of 2001) now pending in the Court of the learned CMM, Calcutta should be quashed and the order of the learned Magistrate dated 18.8.01 and 18.12.02 issuing warrant of arrest against the petitioner should also be set aside. The second complaint is nothing but filed with mala fide intention to harass this petitioner. In the complaint the de facto complainant nowhere disclosed about inducement or intention of this petitioner to cheat him right from beginning of transaction. When there was no allegation of inducement or intention to cheat from beginning elements of section 406 or section 420 of IPC do not lie at all. In support of his contention he cited the decisions reported in 1995 C Cr. LR (Cal) 210, M. S. Natarajan vs. Ramasis Shaw & Anr.; 2000 C Cr. LR (SO 136, G. Sagar Suri & Anr. vs. State of U. P. & Ors.; 1986(3) Crimes 143, Asit Das vs. Jagadish Chandra Saha & Anr.; JT 2003(1) SC 418, Ajay Mitra vs. State of M. P. & Ors.; 1974 Cr. LJ 352, Hari Prasad Chamaria vs. Bishnu Kumar Surekha & Ors.; 2000 C Cr. LR (SC) 293, Hridaya Ranjan Pd. Verma & Ors. vs. State of Bihar & Anr. and 2000(2) CHN 863, Murari Mohan Kejriwal & Ors. vs. State of West Bengal.;