GITESH RANJAN BHATTACHARJEE, J. - (1.) This is an application under Section 482 Cr. P. C. for quashing the proceeding and the investigation arising out of the FIR in Karaya P. S. case No. 76 dated 6-4-95 under Sections 420/468/471/ 406/120-B IPC. This petition was initially moved before a learned Single Judge namely, A. B. Mukherjee, J. on 19-8-96. The learned Judge inter alia directed that the investigation of the case would proceed in accordance with law but there would not be any arrest of the accused (petitioner) without the leave of the Court on condition that the petitioner would allow himself to be interrogated in course of the investigation at all reasonable times. On 10-10-96 the matter came up before another learned single Judge, namely, S. K. Tiwari, J. but the learned Judge released the matter and directed for being placed before the appropriate Bench. On 14- I 0-1996 another learned single Judge, N.K. Bhattacharyya, J. for reasons stated in the order of the said date, directed for placing the matter before the learned Chief Justice so that the matter could be assigned to a Division Bench. The matter was then directed by the Hon'ble The Chief Justice on 15-11-1996 to be placed before the appropriate Division Bench. The appropriate Division Bench comprising of S. K. Mookherjee and R. Bhattacharyya, JJ. on 21-2-1996 released the matter as one of the learned Judges was not inclined to hear the same on personal ground. Thereafter, on 5th December, 1996 the matter was assigned to the Division Bench presided over by one of us (G. R. Bhattacharjee, J.) and that is how the matter has come up before this Bench.
(2.) The complainant Anwarul Islam who is the O. P. No. 2 herein filed a petition of complaint before the learned Chief Judicial Magistrate, Alipore against his two brothers the accused No. 1 Sk. Murshidul Islam (the petitioner herein) and accused No. 2 Sk. Jiaul Islam and others. The said petition of complaint was forwarded to the police under Section 156(3) Cr. P. C. and the police, treating the same as FIR, started the said Karaya P. S. case No. 76 dated 6-4-95 under the aforesaid Sections of the Indian Penal Code. Since in the present revisional application under Section 482 Cr. P. C. the petitioner-accused obtained an ex parte order from the learned single Judge to the effect that the petitioner-accused shall not be arrested without the leave of the Court, the complainant opposite party No. 2 has also filed an application for recalling the said order and both revisional application under Section 482 Cr. P. C. and the said recalling application have been heard together and are being disposed of by this order. It is the contention of the petitioner in this revisional application that the complaint which was treated as FIR does not, even if taken at its face value; prima facie make out any offence and as such the investigation started thereon and the entire proceedings should be quashed. The ,complainant opposite party No. 2 as well as the State opposes the revisional application for quashing the proceeding.
(3.) The complainant, the accused No. 1 and the accused No. 2 are brothers. The complainant and the accused No. 1 who is the petitioner herein are the partners of M/s. S. M. Islam and Associates which is a registered partnership firm. According to the averments made in the petition of complaint the said firm carries on business in the nature of contract which includes refractory lining and other works. It is also the case in the petition of complaint that in course of business the aforesaid firm received an order in January 1994 from M/s. Wellman Incandescent India Ltd. for the installation of refractories in their Coke Oven Plant, and in course of business a sum of Rs. 4,49,999 was due to the said partnership firm but in order to grab the payment illegally both the accused persons forged the signature of the petitioner on the letter-head of the aforesaid firm and succeeded in getting the payment of Rs. 2,25,000 directly in the name of the accused No. 2 on the basis of forged and fabricated letter submitted to M/s. Wellman Incandescent India Ltd. It is further stated in the petition of complaint that the accused persons with knowledge that the complainant's signature in the concerned letter was not genuine used the same as genuine. The allegation in the complaint further is that the accused persons having dominion over the aforesaid amount of Rs. 2,25,000 dishonestly misappropriated the same by converting the same to their own use and thereby committed criminal breach of trust in respect of the same and caused loss to the petitioner's firm. In paragraph 10 of the petition of complaint it is categoricully stated that the accused persons thus committed forgery and by practicing fraud cheated the petitioner and thereby committed offence punishable under different Sections of the Indian Penal Code mentioned therein. The petitioner accused No. 1 wants in this revisional proceeding to quash the investigation proceedings started on the basis of the said petition of complaint which was treated as FIR, mainly on the ground that the allegations made in the petition of complaint, even if taken at. their face value, do not make out any cognizable offence. In our considered view, however, this argument is not tenable. As we have seen the petition of complaint contains categorical averments that the accused persons forged the signature of the complainant on a letter under the letter-head of the partnership firm of which the petitioner is a partner and used that forged and fabricated letter and thereby obtained an amount of Rs. 2,25,000 from Wellman Incandescent India Ltd., in favour of the accused No. 2. If these allegations are taken at face value, in that event certainly it cannot be said that no offence has been made out for investigation. The questions whether there is arbitration clause in the partnership deed and whether the accused No. 2 as sub-contractor of the partnership firm was entitled to the said amount are not of much consequence at this stage. There is clear allegation of forgery of complainant's signature by the accused persons and of obtaining money on the basis of alleged fabricated letter allegedly containing forged signature of the complainant. In view of such clear allegations in the complainant it cannot be said that no prima facie case of any offence has been made out in the complaint for starting any investigation. The question whether M/s. Wellman Incandescent India Ltd. has made any complaint is also inconsequential in the present. context.;