# D. N. BHATIACHARJEE & ORS v. STATE OF WEST BENGAL & ANR

- **Citation:** [1972] 3 S.C.R. 973
- **Court:** Supreme Court of India
- **Decided:** 1972-03-22
- **Case number:** Criminal Appeal No. 156 of 1969
- **Bench:** A. N. Grover, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-n-bhatiacharjee-ors-v-state-of-west-bengal-anr-5640
- **Pages:** 5

## Headnote

Code of Criminal Procedure (Act 5 of 1898), s. 203-Power of Magis·
trate to dismiss complaint.
An order of dismissal of complaint under s. 203 Cr. P.C .. has to be
made on judicially sound grounds.
It can only be made where the
reasons· given disclose .that the proceedings cannot terminate \luccessfully
in a convicton. A Magistrate is not debarred, at this stage, from goi'lg
into .the merits df the ev;denee produced by the complainant, but the
object of such consideration could only be to determi 1e whether 1here
are sufficient grnund!i for proceeding furtoor.
The mere existence of
some grounds which would be material in deciding whether the accused
should be convicted or acquitted does not generally indicate that the case
must necessary fail.
On the other hand, such grounds indicate the need
for proceeding further in order to discover the truth after a full and
'proper investigation. If, however, a bare perusal of a complaint or the
evidence led in supjll)rt of it show that the essential ingred'ents of the
offences alleged are ab6ent or that too dispute is only of a c·vil nature
or that there are such patent absurdit es in the evidence produced that it
would be a waste of time to proettd further, the complaint _could be
properly dismissed under the section. [9'76 E-Hl
Where, therefore, the Magistrate dismi~es a complaint on a misread ..
ing df the oral evidence and 'he evidence, in fact, does not reveal a'ly
absurdity so as to merit a forthright dism:&sal of too complaint under the
section, such an order is fit to be set aside by the High Cotirt.

## Text

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973
D. N. BHATIACHARJEE & ORS.
v.
STATE OF WEST BENGAL & ANR.
March 22, 1972
[A. N. GROVER AND M. H. BEG, JJ.]
Code of Criminal Procedure (Act 5 of 1898), s. 203-Power of Magis·
trate to dismiss complaint.
An order of dismissal of complaint under s. 203 Cr. P.C .. has to be
made on judicially sound grounds.
It can only be made where the
reasons· given disclose .that the proceedings cannot terminate \luccessfully
in a convicton. A Magistrate is not debarred, at this stage, from goi'lg
into .the merits df the ev;denee produced by the complainant, but the
object of such consideration could only be to determi 1e whether 1here
are sufficient grnund!i for proceeding furtoor.
The mere existence of
some grounds which would be material in deciding whether the accused
should be convicted or acquitted does not generally indicate that the case
must necessary fail.
On the other hand, such grounds indicate the need
for proceeding further in order to discover the truth after a full and
'proper investigation. If, however, a bare perusal of a complaint or the
evidence led in supjll)rt of it show that the essential ingred'ents of the
offences alleged are ab6ent or that too dispute is only of a c·vil nature
or that there are such patent absurdit es in the evidence produced that it
would be a waste of time to proettd further, the complaint _could be
properly dismissed under the section. [9'76 E-Hl
Where, therefore, the Magistrate dismi~es a complaint on a misread ..
ing df the oral evidence and 'he evidence, in fact, does not reveal a'ly
absurdity so as to merit a forthright dism:&sal of too complaint under the
section, such an order is fit to be set aside by the High Cotirt.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
156 of 1969.
Appeal b!y·. special leave from the judgment and order dated
April 15, 1969 of the Calcutta High Coutt in Criminal Revision
No. 1114 .of 1963.
C. K. Daphtary and D. N. Mukherjee, for the appellants.
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I>. K. Chatterjee and G. S. Chatterjee, tor respondent No. I.
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P. K. Mukherjee, for respondent No. 2.
The Judgment of the Court was delivered by
BeJl, J.
On 1f .. 7 -1963 Sunilakshva Choudhry a :Oirector of
the Metropolitan Indu1trial Corporation Ltd., C·Icut a, havi"g
been authorised by its Boa•d of Directors, filed ·a complaint agaiqst
the app~llant Deb~ndra Na•h Bhattacharjee (or Bhattacharya), a
former Director, and Banamali Pathak, Cashier ·of the Bengal
16-L106ISupcin2
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SUPREME COURT REPORTS
[1972) 3 S.C.R.
Luxrni Cotton Mills Ltd., and Hiran Roy, Chief Accountant of the
Bengal Luxmi Cotion Mills Ltd., alleging offence punishable under
Sec.ions 406/409/467/471/477A/109 JndiJn Penal CJde.
The c:mplainant alleged that, when the Life Insurance business
was natioiialbeJ in 1956 the Metrvp !Lan Insurance Co. Ltd.
(hereina,ter referred to as 'the Oimpany') received a sum of about
Rs. 10,25,523/· as compensation, a.nd the Company was transformed in.-.:i Metropohtan
Industrial
Corporaiion (hereinafter
referred to as 'the Corporation').
The bu;iness of the Corporation
wa; s"id to be c:mfined to making of loans, and dea ings in s~ocks
and shares. The complainant was Director of the Company in 1957
and the accused app:llant D. N. Bhattasharjee was albged to be
its Managim Di ·ec or with abs'.llu\e control over the funds of the
Company and the only person au'horised to operate the t11anking
account of the Company with the Metropolitan Bank Ltd. Jloundabbut October, 1958, alth. ui;h. th: appellant Bhattach1rj 'e was
said to have ceased to be the Managing Di-ector, yet, he is alleged
to have continued to ex~rcise the powers he had possessed a;
M 1n1ging Director.
Af•er the Company became the Corp ·ration
certain activities of the appellant D N. Bhattacha•jee a·e al'eged
to hwe come to light and ccmpelbd his resignation on 28-2-1963
so that he hande1 over s0me of the B01ks and reco•ds of the
Corporation to the complainant.
The c'>mnlainant, after having
examined the records hmded over by D. N. Bhattacharjee, claimed
to have found m 1n'bly pay shee•s containing mimes of certain
em~Joyees who were not emnloyees d the Corporatio.n at ~n and
who we·e smp·c·ed to be fictitiouc as they could not be trased. The
comphinant alle~ed that, ..,n furthe• enquiry, he 'qurid that the
Corporation had not employed anybbdy at all but h 0 d taken occasional holp from cer·a•n empJ·yees of sister concerns which hqd
th•ir cfli"es in the s1me building.
Tn o•her words. •he c0mrlainant
claimed to have disc've•e1 that the pay-<h~;~ of the Co-voration
were totallv f1lse and fabri"ated.
He also comuhined that Jictitious signatures of suppose0ly different persons appeare1 to him
to have been m1de by a single pe•s0n so as to appear as signatures
of diff~re>lt actually existing individuals.
The comota'nant al'e~ed
that his susnicions were confirmed by sending these alloge'1 sigoatur_es t~ a H •ndwriting Exuert f"r ouinion:
Acco·ding to the
comulainant, all •hh was d~ne at the instance of or with the complicity of D. N. Bhattach1riee and wi•h the aid of the two other
co-accused.
Tt was asser•e<i that D. N. Bb<i.•t•charjee h•d full
lmowled•e f'f what was taking place and had disbonestlv misanoro.
priated e.nd c 0 nver'e'1 to his own u·e lar~e sums of money relongilllr .to the c~moration. He aiid •lie .. two cO-•ccmed, who are said
ti;) /iil.ve actually Jll'a'de >the e11•iies, we·e alleged to have been
tJ'eaRed in a GOfl<.nlr'l.C:.V. . 'l'b"- comtill>inant gWe a tis• of five
Wi~s, :lncJudliig μiat .d. • ):land~ &flert, -..id· he ielied
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D. N. BHATTACHARJEE v. WEST BENGAL (Beg, J.)
97$
upon a number of account books, documents, and records of the
Company and the CorporatiJn.
After an enquiry into the allegations contained in the complaint
a Presidency Magistrate found p. ima facie evidenc.e of a conspiracy
to commit b~each of trust by for~ing receipts and use of forged
receipts and falsification of accounts.
On 2-8-1963, the Presi-·
dency Magistrate, ordered the case to l6e put up before the Chief
Presidency Magistrate for further orders.
On 10-8-1963, the Chief Presidency Magistrate, after giving
particulars of the prosecution case and the evidence produced to
support it, went on to observe : "In assessing the evidence adduc;d
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for the purpose of taking out a process, certain broad tacts and
circumstahces and probabilities cannot, in my opinion, be overlooked".
The Chief Preiidency Magistrate . then mentioned the
reasons which, in his opinion, justified a dismiss1l of the complaint
wi~hout issue of process.
He pointed out : firs•ly, that the· Company, which was admitted to be a going concern, 'must have had
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some of its own employees who must have been taken ove~ by the
Corporation in 1960; secondly, that D. N. Bhattacharjee, at the
time of his resignation on 28-2-1963 had handed over the records
and acc~unt books of the Company to the complainant which fact
indicated that he "probably" did not know th'at any of these were
for~ed for fabricated; thirdly, that it was "improbable" that the
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Corporation could carry on its business without its own emrybyees;
fourthly, that evidence had not been led to show what enquiries
were made to indicate that .the names on the pay sheet were fictitious; fifthly, that the complainant had h;mself admitted that one
or two persons shoMI in the pay sheet might have been employed
by the Corporation and that this ~demoliihed" the wh0]e prosecution ca'e of fictitious entries; and~ six'hly, that the opinbn of the
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Handwriting Expert "does not appear to be empJiatic" and w1s. "]"'
not supported by "sufficient reasons''. On...trrese grounds, the Chief
Presidency Magistrate, after holding thilt there were "rea11v, no
sufficient grounds to proceed furth"t'" dismissed the complaint
under Sec. 203 Criminal Procedure Code.
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The complainant then invoked the Revisional jurisdi~tion of the
Calcutta High Cou-t. That Court, af'er an examination o.f the
com'l!aint, the evidence produced for the purpose of i;suing proce's
to the accused persons, and the order of the Chief P•esidency
Magistrate, came to the conclusion •hat the order of dismiss1! of the
complaint under Sec. 203 Criminal Procedure Code was imoroner.
ll The High Court held that the o•der contained a pre-mature verdict
on the merits of thP, case.
Furthermore, the High Court pointed
out that the Chief Presidency Magistrate had .misread the oral evidence in findinp; that the complainant said that one or two persolll'
976
SUPREME COURT REPORTS
[1972] 3 S.C.R.
mentioned in the pay sheets might have been employed by the _A
Company sometimes. . A correct reading of the evidence of the
complainant, which we have also examined, was that one <Jr two
persons may have been employed by the Company from time to
time but none of the persons whose names appeared in the pay
sheets were any of those persons.
Even if the complainant Jiad
said that some of the entries in the account books appeared to be
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deliberately false, the complaint would . not have merited a forthright dismissal without further enquiry. The High Court, in our
opinion, rightly considered the order pronouncing a judgment on
the merits of the case on bare probabilities. and surmises to be
premature. The High Court, very rightly, did not express any
opinion on merits of the. prosecution case beyond saying \hat the
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case call'ed for further enquiry.
Jt, therefo·e. set aside the order · ·
of dismissal under Section 203 of the Criminal Procedure Code and'
sent back the case for farther enquiry in accordance with law.
The accused have come up to this Court by Special leave against
the above--mentioned order of the High Court for further enquiry
into the case. It is urged that the High Court should not have, in
exercise of its revisional jurisdiction, set aside the Chief Presidency
Magistrate's order. We are unable to accept this contention
because we think that the Presidency Magistrate had not cor ectly
understood the scope and pu·pose of the powe.r to dismiss a complaint under Section 203 Criminal Procedure Code.
It has to be remembered that an order of dismissal or a complaint under Section 203 Criminal Procedure Code has to be made·
on judicially sound grounds.
It can only be made where the
reasons given disclose that the p·oceedings cannot terminate successfullv in a conviction.
It is true that the Magistrate is not
debarred, at this stage, from going into the merits of the evidence
produced by the complainant.
But, the object of such considera-.
lion of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for p·oceeding further
or not.
The mere existence of some grounds which would be
mate•ial in deciding whether the accused should be convicted or
acquitted does not generally indicate that the case must necessa·ily
fail.
On the other hand, such grounds may indicate the need for.
proceeding further in order to discover the truth after a full and
proper investigation.
If, however, a bare perusal of a ccmolaint
or the evidence led in supp~rt of it sh~w that essen•ial in°redients
of the offences alleged are absent or ti)at the dispute is only of a
civil nature or that there are such patent absurditi 'S in evidence
produced that it would be a waste of time to proceed further, the
comphint could be properly dismissed under Section 203 Criminal
Procedure Code.
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D. N. BHATTACHA!lJEE v. WEST BENGAL (Beg, /.)
977
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In the case before us, the learned Magistrate Wl!S in error in
assuming that merely because the names of one or two former employees of the Company may be mentioned in the pay-sheets the
whole prosecution case was actually demolished. Moreover, as the
High Court had rightly pointed out, the complainant's actual
evidence had fully supported and not contradicted any part of the
complaint.
No such ab urdity was rev,i!aled by .he complainant's
evidence as to merit a forthright di-missal of the complaint under
Section 203 Criminal P~ocedure Code.
What the M ·gi;trate had
to-determine at the stage of issue of proccis was not the correctness
or the probability or improbability of individual items of evidence
on disputable grounds, but the existence or otherwise of a prima
facie ca5e on the assumption that "'hat was stated could be true
unless the prosecution allegations were so fantastic that they could
not reasonably ~ held to be true.
As ~e. in agreement with the High Court, ·think that the 6rder
Of the Chief Presidency Magistrate in dismissing the complaint was
pre-mature and was also based 01!_ obvious misconceptions, we
dismiss this appeal.
V.P.S.
Appeal dismissed: