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Calcutta Metropolitan Development Authority Vs. S.K. Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ1661
AppellantCalcutta Metropolitan Development Authority
RespondentS.K. Bose and ors.
Cases ReferredState of West Bengal v. Swapan Kumar
Excerpt:
- monoj kumar mukherjee, j.1. these two appeals arise out of the judgment and, order dated may 24, 1982 passed by a learned judge of this court in civil rule no. 15161 (w) of 1981, whereby the learned judge allowed the writ application of sri s. k. basu and quashed the investigation of section 'k' case no. 126 dated march 5, 1981 instituted against sri basu and others under sections 420 and 420/120b of the i p.c. of the two appeals, one has been preferred by the calcutta metropolitan development authority ('cmda' for short) and the other by the state of west bengal and its officers.2. the case made out by sri s. k. basu (hereinafter referred to as the petitioner) in his writ application is as under:-on or about dec. 1. 1979 the petitioner along with one sudhir kumar basu constituted a.....
Judgment:

Monoj Kumar Mukherjee, J.

1. These two appeals arise out of the judgment and, order dated May 24, 1982 passed by a learned Judge of this Court in Civil Rule No. 15161 (W) of 1981, whereby the learned Judge allowed the writ application of Sri S. K. Basu and quashed the investigation of Section 'K' Case No. 126 dated March 5, 1981 instituted against Sri Basu and others under Sections 420 and 420/120B of the I P.C. Of the two appeals, one has been preferred by the Calcutta Metropolitan Development Authority ('CMDA' for short) and the other by the State of West Bengal and its officers.

2. The case made out by Sri S. K. Basu (hereinafter referred to as the petitioner) in his writ application is as under:-

On or about Dec. 1. 1979 the petitioner along with one Sudhir Kumar Basu constituted a partnership firm under the name and style of 'Central Group' (hereinafter referred to as the 'firm) to carry on the business of Management Consultants and Project Engineers and other allied business, with the petitioner as its Managing Partner. The deed of partnership was, however, executed on March 17, 1980 and it contains a clause that the partnership business shall be deemed to have commenced on and from December 1, 1979 and shall be continued to be carried on so long as the partners desired. Prior to the formation of the firm, the petitioner had with two others, formed a partnership firm under the name and style of 'Central Engineering Syndicate' and that firm, namely, C. E. S. had, among other projects undertook and successfully executed the following projects:-:

(i) Teesta Bridge Project,

(ii) Bokaro Water Treatment Plant.

(iii) Bokaro Sintering Plant

(iv) Garden Reach Water Treatment Plant.

The petitioner's further case is that he was the Managing Director of another sister concern of C. E. S. known as 'Central Concrete and Allied Products (Pvt.) Ltd.' (CCAP) up to September 30, 1981 and since then is a Director of the said Company. CCAP had undertaken and completed, the following projects:-

(i) Underground Reservoir at Auckland Square, Calcutta.

(ii) New Buckland Bridge Roads System,

and partially completed and on the date of filing the writ application was continuing with the works of -

(i) Sealdah Flyover Project.

(ii) Sections 15B, 15-C, 16-A (Part II) and 17-B of the Metropolitan Railway Projects.(iii) A flyover at Delhi.

3. On December 4, 1979 an advertisement was issued by the C.M.D.A. therespondent No. 5 in the writ application, under the caption 'Enlistment ofContractors' in, among other daily newspapers, the Statesman, Calcutta edition,to the following effect:--

The Calcutta Metropolitan Development Authority intends to take large scale rehabilitation works of the sewerage and drainage system in the City of Calcutta. For the purpose of drawing up the total programme the C. M. D. A. will like to have a prototype work-cum-study project for a selected area of Calcutta which will consist of cleaning the sewers, inspecting the conditions of the sewers and taking measures of rehabilitation of the same.

The C. M. D. A. intends to select a construction organisation who have large scale experience in education of underground projects in the complex urban set up of Calcutta.

Those who are interested in participating in the above work-cum-study project are hereby requested to kindly furnish details of their experience in similar projects or at least in those projects where they have been involved in dealing with underground' utilities.

The work may require inducting foreign expertise in the form of specialist sewerage renovation contractors and professionals, particularly experienced, in such works. The name and particulars of foreign associates-collaborators, if any, may also be indicated, stating the details of their experience and nature of working arrangements with them.

The C. M. D. A. wants to utilise the current working season for launching this project and as such all particulars have to be delivered on or before 17th Dec. 1979 to Shri S. K. Sen, Additional Director of Planning 3A, Auckland Place (5th floor) Calcutta-17.

4. On that very day the firm under the signature of the petitioner responded to the advertisement by making an offer to undertake the work. The offer read as follows :-

CENTRAL GROUP

Management Consultants ProjectEngineers, Shantiniketan,

8. Camac Street, Calcutta - 700 017.

INDIA.

Telephone : 43-15554

Telex : Centin 21 2331

Cable - CENTPILES

CALCUTTA

Dated Dec. 4, 1979.

Our Reference CG/SKB/SD/3167.

Your Reference.

To

Shri S. K. Sen,

Additional Director of Planning,

C. M. D. A.

3A, Auckland Place,

Calcutta - 700 017.

Re:-- Calcutta Prototype Work cum-study Project for sewer Renovation.

Dear Sir,

Apropos of the Newspaper advertisement for preselection in the above project we hereby express our interest and give below a few details regarding our capability in this behalf.

2. We hereby a very substantial experience in working for many prestigious projects in the complex- urban set up of Calcutta. Some of the projects which involved large scale underground engineering works are:

(i) 6 (six) million gallons capacity Underground Reservoir at Auckland Square, Calcutta. This project required giving complete protections to the heavily built up surroundings by an indigenous method of deed sheet piling coupled with fabricated prope and structs. The underground utilities in the surrounding areas were functioning either by diversion or by protection.

(ii) Metro Rlys. Project in Calcutta in which we have three major sections.

Here, the major underground utilities like sewers, drains, water mains, electrical & telephone cables are being taken of in full traffic conditions by diverting, rebuilding, replacing and realigning as required. For specific road junctions, prefabricated ROC road docking are installed to allow uninterrupted flow of traffic. Even the tidal dross of the river has to be taken care of since certain drainage lines have direct connection with the river flow. This involves putting in temporary lock-gates and damming flows as may be necessary. Powerful sludge pumps and well point pumping system are deployed to take care of the overflooding conditions arising out of severe monsoon and ground water infiltration. These works were never attempted before in India and we had to innovation sound technical solution to face the situations as they arose.

(iii) Garden Reach Water Treatment Plant.

This is one of the largest water treatment plants in the country, comprising of major structures like 4 nos. 55M. dia. Clarifiloculators, large filter house and chemical house complex etc. most of which are underground structures. Here the problem was very subsoil conditions and inflow of surface and ground water from the surrounding submerged areas. These problems were solved by adequate design and construction methodology particularly in case of deep interconnecting pipeline system of the water treatment plant.

(iv) Sealdah Fly-Over Project.

This project located, as it is in the busiest areas of Calcutta, has- many underground features. There is a large brick sewer constructed about more than 100 years ago for which not even a realistic survey map was available while launching the project. We had to supply typograpical survey techniques to identify not only the brick sewer but also major filtered and unfiltered water mains running side by side. The project required that the brick sewer be left completely undisturbed while the flyover structure carrying heaviest loads will be built around it. Filtered, and unfiltered water mains abutting on the alignment are being shifted to other locations and the complex underground sewer system is being realisationed and reconnected without disturbance to the existing sewage flows. We have already shifted major portion of the underground utilities and have also started piling works without affecting the main brick sewer.

(v) New Buckland Bridge Roads System.

This major project is a joint venture of the CMDA and the Eastern Railway and consists of High Level Fly-Over-cum-Road Bridge over the busiest railway yard in the country and one of the most congested commercial-cum-administrative Centres in the city. The underground utilities consists of all the usual facilities most of which had to be diverted, realigned and recommissioned without affecting the supplies.

The above projects have been executed by us on design construct basis. It may easily be seen from above that we have the parties built up through years of experience, not only in large project management but for carrying out the very complicated and delicate task of co-ordinating inputs of multifarious service organisation which are responsible severally for various facilities.

Apart from the above, we have a very substantive experience as prime contractors in various projects which involved working as a team with foreign professionals, technicians and specialists. As the single agency responsible for installation of the largest sintering plant in the world for the Bokaro steel we have worked with Russian Consultants Equipment Suppliers and, Technology and put in commission the plant of the schedule. Again, as the principal agency for installation of the largest Mechanised Iron Ore Mines in India at Bailadila of the Bailadila National Medical Development Corporation, we have successfully co-ordinate the entire supplies from fourteen major Japan Suppliers and have worked in unison with their specialists and technicians. We have, therefore, proved capability to work in major projects where foreign inputs are involved.

3. We have a strong supporting organisation of public health engineering, design and drafting. The consultancy division of this Group specialises in Urban Planning, architecture, typographical and subsoil surveys, design of community facilities in spot development projects. We carry out survey and studies, prepare appraisal reports and recommendations, undertake detailed engineering design and preparation of contract documents and supervision of engineering projects.

We have facilities through associate firm in the U.S.A. and the U.K. for management and co-ordination of Indian Projects having foreign components and for training of Indian Personnel in those countries. It may be an integral part of the proposed prototype work-cum-study to arrange for constant interaction and training facilities for officers of the Authority and of the selected Agency in the countries wherefrom the foreign inputs will be imparted.

We are pleased to confirm that we have established contacts with internationally reputed consultancy organisation, regional water authority and specialist sewerage surveyors and contractors and manufacturer of specialised equipments, who have each expressed their interest and agreement in working with us for the instant project.

It may be of interest for you to know that the organisation agreed to work with us, include the following:-

(i) Thames Water Consultancy Service, U.K. - they are responsible for management of over 50,000 kilometers of main sewers for which there is a regular programme of inspection, maintenance and remedial work.

(ii) The Concrete Group M/s. Nuttals and The Rees Group of U. K. -- These are the specialist firms of manufacturers of equipments, t.v. surveyors and sewerage reorganisation contractors.

(iii) A number of internationally reputed sewerage consultants such as M/s. Halcrow-Balfaour Ltd. Watson-Hawkaley, M/s. Binnie & Partners, M/s. Babtte Shaw & Morton, M/s. Fawoett Partners-- all of the U.K. and M/s. Weston International Ins. & M/s. Gibbe & Hill of U.S.A. have expressed their interest to assist us in the appraisal and recommendation process.

As and when the CMDA becomes ready and willing to entertain our specific proposal, we will be glad to conclude final agreements with the selected parties amongst above.

4. Concluding, we may be permitted to point out two important aspects of the proposed pilot study, which must have already engaged your attention, namely,

(a) the only suitable period available for work is the dry months of the year, since during the monsoon the sewer system is likely to be fully surcharged.

(b) substantial works are involved requiring a long time period. Also, sufficient investment has to be made to achieve the aims of the study and to make the work package commercially viable for the Indian agency and their foreign collaborators. We trust you will find, our offer of sufficient interest to invite us to submit our detailed proposal on an exclusive basis only.

Thanking you and assuring you of our best services.

We remain,

Yours faithfully,

For Central Group.

(S. K. Basu)

5. On 17th Dec. 1979 the firm forwarded to the Additional Director of Planning, CMDA certain capability documents of its foreign collaborators. On Jan. 7, 1980 the Additional Director of Planning, CMDA addressed a letter to the firm asking for supporting evidence of the works done by the firm and, to the working arrangement between the firm and their collaborators. In reply thereto the firm by its letter dated Jan. 21, 1980 intimated the Additional Director of Planning, inter alia, as under :-

With regard to our capability we have already furnished the details of our experience in major underground works in the complex urban set up of Calcutta in our above letters. You will find that most of these projects have been undertaken at the instance of the CMDA and: as such we are sure that you are well aware of our performance records in this respect. Details of particularly relevant experience of our foreign collaborators are included in the attached proposal.

**** **** ****

Concluding, we may mention that we have a long and cordial relationship with your organisation, which is based on mutual faith and trust and our performance records. We have expressed our interest in participating in the instant project and as a matter of fact have already incurred large expenditure to present before you one of the best study teams, not only for commercial benefits but with an intent to serve the people of Calcutta to the best of our abilities.

6. According to the petitioner, thereafter, various meetings and discussions took place between the petitioner and CMDA over various aspects of the project and after considerable deliberations and discussions, the CMDA by its letter dt. March 7, 1980 asked the firm to submit a commercial proposal for the Calcutta Sewers Pilot Study-cum-Work Project. In that letter it was stated, that the firm would be selected for the above work provided its commercial proposals were found acceptable. Accordingly, the firm on March 21, 1980 submitted its commercial proposal including the costs of carrying out the said assignment. The petitioner's further case is that thereafter he had a number of discussions and meetings with different Officers of the CMDA and pursuant to such discussions the CMDA issued a letter on May 7, 1980 enclosing therewith the proceedings of the meeting. By the said letter the firm was directed to proceed with 'Part A' of the study immediately under the terms and conditions mentioned therein. The petitioner claims that immediately on receipt of the said letter the firm started the work of 'Part A' and by Aug 6. 1980 completed the work. By a letter written on the self same day the petitioner on behalf of the firm informed the Chief Executive Officer, CMDA about such completion and undertook to submit the appraisal study report within a few days. In that letter it was also pointed out that early approval of the Government of India was required to be obtained by the CMDA for payment of foreign exchange to the foreign expert and it was also necessary to complete the agreement covering all aspects of the matter. According to the petitioner the appraisal study report was sent to CMDA on Aug 18, 1980.

7. Detailing his case further the petitioner stated in the writ application that by an order dt. Sept. 15, 1980 the CMDA formed a work team and a policy team consisting of selected officials of CMDA and Calcutta Corporation with a view to facilitating due performance of the prototype work-cum-study for sewer cleaning and renovation project undertaken with the help of the firm in collaboration with foreign consultants. Following further discussions and deliberations between the petitioner representing the firm and the CMDA the parties decided to enter into an agreement for execution of the project and accordingly by a letter dated Oct. 18, 1980 the CMDA forwarded two copies of the draft agreement incorporating all the points agreed between the parties and asked the firm to confirm acceptance of the terms and conditions incorporated in the draft agreement. This was followed by a letter of intent dated Nov. 4, 1980 issued by the CMDA incorporating therein the terms and conditions agreed upon by the parties and in reply thereto the petitioner on behalf of the firm wrote a letter on Nov. 6, 1980 accepting the terms and conditions.

8. According to the petitioner the firm thereafter took up the second phase of the project and started executing the same according to schedule and on Dec. 30, 1980 the petitioner as managing partner of the firm informed the Additional Director of Planning, CMDA the extent of progress made till that date in executing the second phase of the work. The petitioner's further case is that though for the works done by the firm till the end of Dec. 1980, it submitted, the bills, the payment was not made in spite of repeated reminders. On the contrary, on March 4, 1981 Shri G, Venkataraman. who was then the Secretary, Public Works (Metropolitan Development) addressed a confidential letter to Sri Nirupan Som, the Commissioner of Police, Calcutta, the respondent No. 1 in the writ application and one of the appellants in the appeal preferred by the State of West Bengal, which reads as under :-

''Dear Shri Som,

The Calcutta Metropolitan Development Authority had decided, to do a pilot study on the cleaning of the entire sewage system of Calcutta. Applications were invited in Dec. 1979 from suitable construction firm who might be interested in undertaking this study. In response to this an offer was received among others from a firm in the name and style of Central Group. Shri S. K. Basu is the Managing Partner of this firm. This firm claimed relevant experience based on the following projects:-

(i) The New Buckland Bridge,

(ii) The Sealdah Fly-Over,

(iii) The Auckland Square Underground Reservoir,

(iv) The Metro Underground Railway.

(v) The Garden Reach Water Treatment Plant.

The pilot study was assigned to Central Group on the basis of the experience said to have been acquired by them. The due fee agreed upon for the study is Rs. 420(?) lakhs. A letter of intent was issued to Central Group by the C. M. D. A. pending the execution of formal agreement and in pursuance of that letter some payment has already been made by the C. M. D. A, to Central Group.

The State Government have been given to understand that the firm of Central Group had nothing whatsoever to do with the projects mentioned above and they do not have any experience which will qualify them for undertaking the study that has been assigned to them. It will thus appear that this is prima facie a case of cheating. It will be appreciated if a thorough investigation is conducted by the detective department of the Calcutta Police and action, as may be warranted by the law, taken as early as possible. The relevant papers in this connection will be available in the office of the Secretary, C. M. D. A., Auckland Place, Calcutta-17.

Yours sincerely,

Sd- G. Venkataraman.

9. The Commissioner of Police forwarded the letter to the Deputy Commissioner of Police, Detective Department, Calcutta for taking necessary action and the latter, in his turn, forwarded it to the Officer-in-Charge, Cheating Section, Detective Department for taking immediate action. On receipt thereof the Officer-in-Charge treated the said letter of Sri Venksta-raman as the first information report and registered Section 'K' Case No. 126 D/-5-3-1981 under Sections 120B/420 and 420 of the I.P.C. against the petitioner as Managing Partner of Central Group and others. The petitioner thereafter moved this Court on March 25, 1981 for quashing the investigation.

10. The writ application was opposed by the C.M.D.A.. the State of West Bengal and, its Secretary, Public Works (Metropolitan Development) Department, and the Officer-in-Charge of Cheating Section, Detective Department of Calcutta Police who took up the investigation of the case. In her affidavit-in-opposition filed on behalf of the C.M.D.A. Smt. Leena Chakraborty who at the material time was its Secretary, has stated, inter alia, as follows:-

Messrs. Central Group had categorically claimed credit for five major projects which were all executed by Messrs. C. C. A.P. and C. E. S. and had also adopted the postal address and telex number of the latter, the C.M.D.A. were induced to believe that Messrs. Central Group were allied to the other two firms in much the same way that the latter were allied to each other and that Messrs. Central Group shared with these two firms a common pool of experience, expertise and resources and that the said common pool would be utilised, for the Pilot Study. It was on the basis of this belief deliberately created by them that Messrs. Central Group were selected for the Pilot Study. Had the C. M. D. A. known the truth namely, that the firm of Central Group was consultancy firm formed with two partners from a date not earlier than the 1st December, 1979, that Messrs. C. C. A.P. and C. E. S. have nothing to do with that firm and in particular the experience, expertise and resources of the latter would not be available for the Pilot Study, Central Group would not have been selected for the study. It is not a fact that the C. M. D. A. knew or believed that when in their letters dated 4th December, 1979 and the 21st January, 1980 Messers. Central Group mentioned their experience, it was the experience of their Managing Partner, Shri Subir Kumar Basu, in C. C. A.P. and C.E.S. that was meant. It is also not a fact that the C. M. D. A, recommended the selection of Messrs. Central Group on the strength of Shri Basu's experience and expertise derived from C.C.A.P. or C.E.S. In matters of this nature what is important is not the experience and expertise of any particular individual belonging to an organisation but the totality to the resources at the disposal of the organisation of which the individual is a part. If the C. M. D. A. had known that Messets, Central Group had no other experience, expertise or resources beyond those personally of Shri Subir Kumar Basu, the Committee would not have selected Messrs. Central Group.

In the affidavit-in-opposition filed on behalf of the State of West Bengal and on behalf of himself Sri Venkataraman has stated, inter alia, as under:-

With reference to contents of paragraph 9. the respondents say that the application was made by Central Group on the 4th December, 1979. The application was signed for Central Group by the petitioner. In this application the Central Group stated inter alia that the following five major projects had been executed by them:-

(i) Auckland Square Underground Reservoir;

(ii) Metro Railways - their major Sections;

(iii) Garden Reach Water Treatment Plant;

(iv) Sealdah Flyover; and

(v) New Buckland Bridge Road System.

The statements in the application were false. The above projects were all executed either by Messrs. Central Concrete and Allied Products Ltd., or by Messrs. Central Engineering Syndicate. The application of Central Group signed by the petitioner was intended to make the C.M.D.A, believe that their firm was either the same as the other two firms or was allied to them.

The pronoun consistently used in the letter dated 4th December, 1979, and the 21st January, 1980, and in all subsequent letters is 'we'. The impression was clearly given that the firm of Central Group had executed the five projects mentioned in their letter of the 4th December, 1979. If the petitioner had been honest and truthful he would have made it clear at the outset that the firm of Central Group, have been set up only on the 1st December, 1979, did not have any experience at all but one, of its partners, namely, the petitioner had some experience based on his participation in the affair of Messrs. Central Concrete and Allied Products Ltd. and the Central Engineering Syndicate. Experience of a single individual belonging to the aforementioned two organisations would not have been deemed to be adequate to qualify Central Group for the assignment for which they had applied..Deception of the worst sort was, therefore, practised by the petitioner. By reforming to the projects which were actually executed by C.C.A.P. the petitioner deliberately fostered the impression that his Central Group was the same as C.C.A.P. and C.E.S. and a further attempt for sustaining the impression was made when in their letter D/-21st January, 1980, the petitioner staled that the C.M.D.A. were aware of the past performance of Central Group and, in fact, had a long and cordial relationship with Central Group. Furthermore, the letters of the 4th December. 1979, and the 21st January, 1980, addressed by Central Group to the C. M. D. A. were clearly designed to make CM.D.A. believe that the resources - both in terms of manpower and money - which went into the five projects mentioned in the former letter were at the disposal of the Central Group and would be utilised for the Pilot Study. The C.M.D.A. were deceived into believing all this and it was on the basis of this belief that the Pilot Study was awarded to Central Group. Had the truth been known, namely, that the Central Group had nothing to do with the two firms which had executed the five major projects in question and that the reources of those two firms would not be available for the Pilot Study and that the petitioner stood all by himself in the Central Group, and that the latter firm had, no experience whatever of any work, the C.M.D.A. would not have assigned the Pilot Study to it.

11. The Investigating Officer in his affidavit-in-opposition has stated that as from the letter dated March 4, 1981 sent by Sri Venkataraman addressed to the Commissioner of Police, Calcutta, he had reasons to suspect the commission of a cognizable offence, he registered the case and took up investigation. He has further stated that the investigation was not a mala fide one and, that it was being conducted according to the provisions of law.

12. It appears from the impugned judgment that before the learned Judge the petitioner contended, relying upon the admitted documents and other admitted materials on record, that the conclusion was irresistible that C.M.D.A authorities equated the knowledge, skill, expertise and experience of the petitioner with that of the firm and it could not therefore be said that the petitioner made a false representation whereby the C.M.D.A was induced to entrust the job to the firm of which the petitioner was the managing partner so as to make out a case of cheating. It was also argued on behalf of the petitioner that When evidence in support of the work done by the organisation was asked for by the C.M.D.A. the petitioner on behalf of the firm wrote that most of the projects had been undertaken at the instance of the C.M.D.A. and therefore they were fully aware as to who performed these jobs and in that context it could not be said that the C.M.D.A. was misled nor could it be said that there was any inducement by any false representation. It was also submitted that allegations made in the first information report, for what they were worth, were against the firm, and not against any individual, and, a firm could not be proceeded against for an offence like cheating in which mensrea was an essential ingredient. On behalf of the respondent it was contended before the learned Judge that this Court at the stage of investigation, was not called upon to decide whether the ingredients of the offence under Section 420 of the Indian Penal Code had been established or not. That, it was submitted would be the subject-matter of enquiry before the appropriate Criminal Court at the appropriate stage. Relying strongly on the language of Section 157 of the Criminal P.C. it was further submitted on behalf of the respondents that all that was required under the law was that the appropriate Police Officer must have 'reasons to suspect' the commission of a cognizable offence. Once the Police Officer had reasons to suspect the commission of a cognizable offence that was the end of the enquiry so far as this Court was concerned at the stage of investigation and the investigation must be allowed, to proceed. In other words, it was submitted on behalf of the respondent before the learned Judge, that once the Police Officer had reasons to suspect that a cognizable offence had been committed he acquired the jurisdiction to start the investigation and this Court could not interfere at that stage.

13. On consideration of the submissions made on behalf of the parties the learned Judge first observed, that even assuming for the sake of argument that the police authorities could act on suspicion that a cognizable offence had been committed still then that condition precedent had not been fulfilled in the facts of the present case. The learned Judge further observed that the relationship between the parties showed that during the entire period of actual working, prior to the volteface on the part of the C.M.D.A and the State of West Bengal, there was no complaint of any kind whatsoever as to the nature of the work carried on by the petitioner. The learned Judge also observed that there was no proof of any kind whatsoever of any 'reason to suspect' on the part of the Police Officer for invoking the provisions of Section 157 of the Cri. P.C. to investigate into the case. The learned Judge concluded that the lodging of the information and the first information report were without jurisdiction and were liable to be quashed and accordingly quashed the same.

14. Mr. R. C, Deb appearing on behalf of the C.M.D.A. contended that the impugned judgment could not be sustained as the learned Judge erred in going into the merits of the cases of the the respective parties and concluding therefrom that no case was made out against the petitioner and quashing the investigation on that score. According to Mr. Deb, law is now well settled that a criminal investigation can be quashed only on two grounds, namely, (i) if the F.I.R. does not disclose any cognizable offence and (ii) if the investigation is mala fide. Since in the instant case no case of mala fide on the part of the investigation agency was made out and since the first information report clearly disclosed offences of cheating under Section 420 of the I.P.C. and of conspiracy the investigation could, not have been quashed, argued Mr. Deb. The learned Advocate General appearing for the State of West Bengal and its officers in the other appeal, supported the above contention of Mr. Deb.

15. Mr. Dipankar Ghose the learned Advocate appearing for the petitioner-respondent, in his usual fairness, submitted that he would confine his argument to the allegations made in the first information report and his endeavour would, be to show that the first information report did not disclose any cognizable offence entitling the investigating officer to investigate into the same. His further contention was that even if it was assumed, that the first information report disclosed an offence, such disclosure was only against a firm, and a firm could not be prosecuted for cheating and conspiracy, as one of the essential ingredients of those offences was mensrea.

16. In our considered view for the purpose of quashing a criminal investigation the merits of the cases of the respective parties on the allegations in a first information report cannot be gone into for, otherwise, the investigation which a Police Officer is legally entitled to carry on in respect of a cognizable offence would be an empty formality. The purpose of a criminal investigation is to find out the truth or otherwise of the allegations made in the first information report and consequently Courts have no jurisdiction or authority to enquire into the allegations made in the first information report for quashing the same. If on completion of the investigation a charge-sheet is submitted, a competent criminal Court may take cognizance of an offence if disclosed by the materials collected during investigation and it is only when cognizance is taken that the Court gets jurisdiction to decide on the merits of the cases of the respective parties. We cannot therefore at this stage go into the respective cases of the parties as made out in their affidavits and as detailed by us earlier and we will confine our attention to the allegations made in the first information report to find out whether the same discloses a cognizable offence entitling the Police to investigate into the same. It may be mentioned at this stage that the investigation in the instant case can be quashed on that ground alone as we do not find any case of mala fides made out against the investigating agency. Let us now therefore consider the allegations made in the first information report.

17. The allegations made in the letter of Sri Venkataraman addressed to Sri Som which we have earlier quoted and which has been treated as the first information report are as under:-

(i) In December, 1979 C.M.D.A. invited applications from suitable construction firms who might be interested in undertaking a pilot study of the entire sewage system of Calcutta,

(ii) Amongst others, the firm responded to the said offer. (iii) the petitioner is the Managing Partner of the firm,

(iv) the firm claimed relevant experience based on some projects,

(v) the pilot study was assigned to the firm on the basis of the experience said to have been acquired by them at an agreed fee of Rs. 240 (?) lakhs.

(vi) pending execution of formal agreement a letter of intent was issued and some payment was made by C.M.D.A. to the firm,

(vii) the State Government had been given to understand that the firm had nothing whatsoever to do with the projects mentioned by them and the firm did not have any experience which Would qualify them for undertaking the said project-

and

(viii) it was a case of cheating.

18. Mr. Deb. submitted that from the above allegations Sri Provat Chandra Chatterjee, the Offlcer-in-Charge of Cheating Section, Detective Department of Calcutta Police had reasons to suspect the commission of cognizable offence and he was therefore fully justified under Section 157 of the Cri. P.C. to investigate into- the cognizable offence of cheating and conspiracy and no exception could be taken to the legality or propriety of such an investigation. Mr. Ghosh, on the other hand, contended/that though under Section 157 of the Cri P. C a Police Officer had the legal right to investigate into a cognizable offence if he had reasons to suspect the commission of a cognizable offence without any first information report recorded under Section 154 of the Cri. P.C. still then if the investigation was to be, and was taken up on a written first information report lodged with the Police such an investigation could be taken up only if the report disclosed all the ingredients of a cognizable offence.

19. To appreciate the contentions raised by the learned Advocates appearing oh behalf of the parties on this question, it will be profitable at this stage to refer to the ingredients of an offence under Section 420 of the Indian Penal Code. Those are:- (i) deceit, that is, dishonest or fraudulent misrepresentation to a person and (ii) inducing that person thereby to deliver any property to any person.

20. Mr. Deb argued that the allegations made in the, first information, report clearly made out a prima facie case satisfying the above two ingredients of the offence under Section 420 of the I.P.C. inasmuch as the firm made a representation that it had relevant experience on certain projects, which was subsequently found to be false and the firm by such false representation induced the C.M.D.A. to entrust the job to the firm and. also to part with some money. Mr. Ghosh, on the other hand, placed strong reliance upon the following observations of the Supreme Court in the case of State of West Bengal v. Swapan Kumar, reported in : 1982CriLJ819 , popularly known as 'Sanchaita' case:-

'...A First Information Report which does not allege or disclose, that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation.' and argued that there is no allegation in the F.I.R. that, the accused acted 'dishonestly or fraudulently' which was one of the essential ingredients of the offence of cheating nor could it be spelt out from the other allegations made in the first information report. He further submitted that similarly there was no allegation that' the C.M.D.A. was induced to part with any property.

21. In our considered view the various observations made in the judgment in the 'Sanchaita' case, when read together do not lay down the extreme proposition that the first information report must contain all the essential requirements of the penal provision, as argued by Mr. Ghosh. If the proposition of law enunciated by Mr. Ghosh is accepted then possibly in most of the cases no investigation can be taken up by the Police. To cite an example - If a person goes to the Police Station and. lodges an information that while travelling in a public bus somebody picked the pen from his pocket the Police cannot start any investigation - if the contention of Mr. Ghosh is accepted - for mere removal of property from one's possession is not 'theft' under Section 378 of the I.P.C. and to constitute theft another essential ingredient is that such removal must be 'dishonestly', that is to say with the intention of causing wrongful gain or wrongful loss, and in absence of any specific averment of wrongful gain or loss in the report one of the essential ingredients of the offence would be lacking, disentitling the Police to investigate. Such a pedantic view, divorced from reality, cannot be taken. It is not expected of any layman to know all the essential ingredients of an offence, nor can it be said that the Police cannot investigate into a cognizable offence unless the essential ingredients of the offence are incorporated in the first information report. Both the words 'dishonestly' and 'fraudulently' have been denned in the Indian Penal Code and they refer to the intention of the wrongdoer; and 'intention' has to be gathered from other facts and circumstances and in deciding the question whether a person is guilty or not in respect of an offence, where intention is an essential ingredient, the Court has to be satisfied about its proof. But at a stage when a first information report is lodged with a Police Officer he has only to find out whether the F.I.R. discloses, prima facie, that a cognizable offence has been committed entitling him to take up investigation under Section 157 of the Cri. P.C. This principle has been clearly laid down in the following two passages of the judgment in the 'Sanchaita' case:-

It is surely not within the province of the police to investigate into a report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of enquiry in such cases.

The position which emerges from these decisions and the other decisions which are discussed by brother A. N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable 'offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed will apply. The Court has then no bar to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information so lodged or received.

22. Keeping in view the above principle it has now to be ascertained whether the FIR in the instant case prima facie discloses the commission of the cognizable offence of cheating and conspiracy for such cheating.

23. According to the F.I.R. the firm made a representation that it had relevant experience based on certain projects and on the basis of the said representation the Pilot Study was assigned to them. The ingredients of the offence of cheating, namely, false representation and inducement thereby have been sought to be made out in the first .information report only by the following statement:

The State Government have been given to understand that the firm of Central Group had. nothing whatsoever to do with projects ...and they do not have any experience which will qualify them for undertaking the Study that has been assigned to them.

24. In our considered view the above statement does not satisfy the requirements of the offence of cheating. The first information report was not lodged on behalf of the C.M.D.A. Though it is not obligatory that the person cheated has to lodge the complaint, this aspect of the matter assumes importance as the person to be induced is to be the person to whom the false representation is made. In other words the false representation in the instant case was to be made to the C.M.D.A. and it has to be induced by the false representation. Inducement means causing someone to believe something which is not true and persuading him to act on such belief. In that context the State Government's understanding as stated in the F.I.R. is of no consequence. It has nowhere even been suggested in the F.I.R. that the C.M.D.A. was persuaded to act on the belief that the representation made by the firm was false so as to make out a prima facie case of cheating.

25. Mr. Deb however relied much upon the statement made by the informant in the F.I.R. to the effect 'it will thus appear that this is a prima facie case of cheating', and argued that the Investigating Officer could reasonably suspect therefrom, the commission of the offence of cheating. We are, however, unable to accept the contention of Mr. Deb as it is patently clear that the above statement was only an inference drawn from the allegations made in the F.I.R. and we have already found that the allegations do not, even prima facie, satisfy the second ingredient of the offence of cheating. It must therefore be held that the concerned Police Officer was not entitled to investigate into the offence of cheating. For the selfsame reason investigation into the offence of conspiracy to cheat is impermissible.

26. In view of our above finding we need not decide the other point raised by Mr. Ghose as to whether a firm can commit an offence like cheating.

27. For the above discussions we uphold the order of the learned Judge, but' on grounds different from the grounds which weighed with the learned Judge and dismiss both the appeals. There will be no order for costs in any of the appeals. The prayer for stay of this judgment is disallowed.

M.M. Dutt, J.

I agree.


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