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TMI Blog2022 (1) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... ce by the petitioner does not result in violation of his terms of service which is however inconsequential to the offence of cheating and breach of trust alleged - From the documents filed it is revealed that the resignation of the petitioner was accepted and Relieving letter dated 19.10.2015 and Experience Certificate dated 19.10.2015 have been issued by the Head, H.R. ADMIN of the company at Kolkata. Considering the allegations in the complaint as they were, to continue the criminal proceeding against the accused even for the offence under section 323 would be an abuse of the process of court and the law and that it was a fit case to exercise the powers under section 482 of the Cr.P.C., and to quash the impugned criminal proceeding. The facts and circumstances of the present case can be distinguished from the facts of the case cited by learned Advocate for the petitioner. In the referred case the complainant and one witness were examined as part of the inquiry under section 202 of the Cr.P.C. It is only after cognizance was taken and summons were issued that the question was raised about absence of a prima facie case, that ingredients of offence taken cognizance of were not satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, 1973 praying for quashing of the proceedings in Complainant case A.C. No. 711 of 2016 (T.R. No. 105/2016) under section 420 and 406 of the Indian Penal Code, 1860 pending before the court of Learned Judicial Magistrate, 6th Court at Alipore, South 24 Parganas. 2. A brief profile of the petitioner's case is that he is a permanent resident of Delhi and was selected for his employment under the opposite party/Company as a 'Wind Resource Analyst' at Delhi and an offer letter dated 04.03.2014 was sent to him through e-mail, whereby the petitioner was required to serve the company for a minimum period of one year and on condition that if any dispute arose between the company and the petitioner, it will be within the jurisdiction of the Courts at Ranchi. 3. Petitioner on the basis of the appointment letter joined the Opposite Party company on 07.04.2014 at Delhi. The petitioner worked at the company's Delhi office and was never posted at any other office of the company. It is the case of the petitioner that no laptop was provided to him by the company and only a desktop computer was provided at his office. After one year five months and one day of service the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the following substantial question of law for consideration: (a) Whether the impugned proceeding against the revisionist is a gross abuse of the process of law and court and is liable to be quashed/set aside to meet the ends of justice? (b) Whether the complaint lodged by the Opposite Party disclose the ingredients of the offence attributed against the accused/petitioner? (c) Whether the learned Magistrate complied the mandatory provisions of law under section 202 of Cr.P.C. either by inquiring into the case himself or by directing an investigation to be made by a Police Officer or by such other person as he thinks fit before issuing summons under section 204 of the Cr.P.C.? 8. It has been contended that the petitioner was offered appointment for the post of 'Wind Resource Analyst' in 'Manikaran Wind Power Limited' at Delhi and the conditions of his appointments as per clause 2 of the offer letter was that petitioner's place of posting would be at Delhi office of the company and that he must serve the company for a minimum period of one year. As per clause 2 to 4 of Annexure-I of the offer letter all disputes between the petitioner and Opposite Party/Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that the complaint is a frivolous one with an object to harass and humiliate the petitioner. Learned Advocate submitted that the complaint case pending against the petitioner for such reason is an abuse of the process of law and court and the same requires to be quashed. 9. Notice of the criminal revision was served upon Opposite Party's office on 22.03.2017 but no one appeared to contest this revisional application. Even after an interim order was passed by this court on 14.03.2017, staying further proceeding of Complaint case No. A.C. 711 of 2016, no one appeared to contest the revisional application. Hence, the revisional application has been taken up for hearing on its merit in exercise of discretion under section 401 of the Cr.P.C., invoking the power conferred under section 386 of the Cr.P.C. 10. Having heard Mr. Mukherjee, Learned Advocate for the petitioner and on considering the legal issues raised on behalf of the petitioner, it appears that one Subrata Roy, the Legal-in-charge of the company at Kolkata lodged a complaint against the petitioner under section 420 and 406 of the Indian Penal Code at Alipore Court on 22.02.2016 which has been registered as Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuable articles. 12. A time tested principle adopted in Taylor V. Taylor (1876) 1 Ch.D., 426 is that, if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. Therefore, the mandatory provisions regarding inquiry under section 202 of Cr.P.C. has to be complied by examination of complainant and other sighted witnesses, without which it cannot be ruled out for certainty that the allegations made in paragraph 8 of the complainant are unfounded to attracted the offence under section 420 of IPC or 406 of the IPC. In the decision of Govind Prasad Kejriwal Vs. State of Bihar and another (2020) 16 Supreme Court Cases 714, cited on behalf of the petitioner, it has been held that, while holding the inquiry under section 202 Cr.P.C., the Magistrate is required to consider whether a prima facie case is made out or not and whether the criminal proceeding initiated are an abuse of process of law or the court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Criminal Procedure Code (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of the expression shall , looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate . It is further held that, When an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an inquiry under section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court . While arriving at such conclusion this court relied upon two decision of the Hon'ble Supreme Court in the case of National Bank of Oman V. Barakara Abdul Aziz, (2013) 2 SCC 488 and Vijay Dhanuka V. Najima Mumtaz (2014) 14 SCC 638. Hon'ble Supreme Court reiterated in the case of Vijay Dhanuka V. Najima Mumtaz t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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