Asha Arora, J. - (1.) By the instant application petitioner has assailed the order dated 21/12/2016 passed by the learned Metropolitan Magistrate, 19th Court Calcutta in C.S. No. 0081448 of 2016 corresponding to F. No. 191703 of 2016 in connection with T.R. No. 6864 of 2016 under sections 420/406/120B of the Indian Penal Code whereby process was issued against the petitioner and the other co-accused. The impugned proceeding is sought to be quashed qua the petitioner.
(2.) The factual backdrop of the matter in brief is as follows: On 6/5/2016 the opposite party No. 2 herein filed a petition of complaint before the Chief Metropolitan Magistrate Calcutta against the present petitioner and three others alleging commission of offences punishable under sections 420/406/120B. After taking cognizance, the Chief Metropolitan Magistrate transferred the case to the Metropolitan Magistrate 19th Court for enquiry and disposal. On 1/7/2016 the learned Magistrate examined the complainant and his witness under section 200 of the Code of Criminal Procedure and after considering their statement on solemn affirmation as well as the documents on record, directed an enquiry into the matter under section 202 CrPC by the Officer-in-Charge of the concerned P.S.. Not being satisfied with the police report under section 202 CrPC, the learned Magistrate posted the matter for "further S/A" on 21/12/2016. On the aforesaid date the complainant and the other witness were "further examined on S/A" and upon considering their statement as well as the documents placed on record, the learned Magistrate was of the view that a prima facie case under sections 420/406/120B IPC was made out against the accused persons and accordingly issued process against them. According to the petition of complaint, the complainant K.K. Polycolor Asia Ltd. is a company registered under the Companies Act dealing in masterbatches, plastic materials etc. represented by one of its employees Mr. Sukanto Mukherjee. The accused persons are having business under the name and style M/S Jagdamba Polyfabs Pvt. Ltd. being the accused no. 1 while the accused no. 2, 3 and 4 are the directors responsible for the day to day transaction of the accused no. 1 having their place of business at Khudika, Salanpur, Asansol. It is alleged in the petition of complaint that the complainant sold and supplied to accused no. 2, 3 and 4 different grades of masterbatches from time to time as per order and the accused persons assured payment for the goods within one month and also projected a rosy picture of business opportunity in Asansol, Jharkhand and Orissa. Being induced by the accused persons, the complainant company delivered goods to them and raised invoices for the same from time to time. Presently a sum of Rs. 18,49,733/- is due against the goods supplied. The complainant demanded the aforesaid amount from the accused but in vain. On 18/8/2015 the complainant made telephone call to accused no. 2 (petitioner herein) demanding payment but he denied having any knowledge regarding receipt of the goods. The complainant was then constrained to send demand notice to the accused persons but to no effect.
(3.) Learned counsel for the petitioner submitted that the matter is essentially of a civil nature given a cloak of criminal offence. It is pointed out that from the police report dated 4/10/2016 it is evident that there was ledger balance sheet showing series of payments received by the complainant from time to time against the goods supplied so there was no dishonest intention at the very inception of the transaction. The allegations in the petition of complaint do not disclose any offence qua the petitioner. It is canvassed that the petitioner resigned from the company named M/S Jagdamba Polyfabs Pvt. Ltd. (accused No. 1) on 16/9/2014 whereas the petition of complaint was filed on 6/5/2016 long after the petitioner had disassociated himself from the company. He was therefore in no way connected with the alleged transaction. It is further argued that the representative of the complainant company has nowhere stated in the petition of complaint that he has personal knowledge about the alleged business transaction. It is pointed out that no date of transaction has been mentioned anywhere in the petition of complaint. The only date referred to in paragraph 9 of the complaint is 18/8/2015 when the complainant allegedly made telephonic call to this petitioner demanding payment but the petitioner had resigned from the company before that date. To buttress his submissions learned counsel for the petitioner relied upon the following case laws: 1. Hridaya Ranjan Prasad Verma and others versus State of Bihar and another reported in, 2000 4 SCC 168. 2. G. Sagar Suri and another versus State of U.P. and others reported in, 2000 2 SCC 636. 3. S.W. Palanitkar versus State of Bihar reported in, 2002 1 SCC 241. 4. Anil Mahajan versus Bhor Industries Ltd. and another reported in, 2005 10 SCC 228. 5. Alpic Finance Ltd. versus P. Sadasivan and another reported in, 2001 3 SCC 513. 6. Mrs. Anita Malhotra versus Apparel Export Promotion Council and another reported in, 2012 1 SCC 520. 7. A.C. Narayanan versus State of Maharashtra and another reported in, 2014 11 SCC 790.;