I need confirmation and advice from a legal practitioner if my understanding about the following mentioned case is proper and adequate. I am not a lawyer.
Case No 756 of 2009, Barasat P.S. Date 15/09/2009.
I.O. Anandamoy Chatterjee.
Complainants: Kishore Kanti Biswas, Hridaypur. Newton Biswas, Madhyamgram.
Accused: Sandip Thakur, Madhyamgram
Section 406 IPC. Punishment for criminal breach of trust.
Section 408. Criminal breach of trust by clerk or servant.
Section 420 IPC. Cheating and dishonestly inducing delivery of property. (Punishment)
List o Dates:
31-08-2009 : News of Cheating has been telecasted by the Star Anand Channel showing Sandip Thakur as accused and Susmit Kumar Nandi, Kishore Kanti Biswas & Newton Biswas among the complainants that also mentioned complainants has filed complaints with the C.I.D.
07-09-2009 : Accused Sandip Thakur sent notice to the Star Anand authority by registered with A/D through Speed Post requesting to owe the responsibility of telecasting a partial and untrue news item and publish regret also to share the information of the complainant lodged before the C.I.D.
09-09-2009 : Star Anand acknowledged the receipt of the said notice sent by the accused Sandip Thakur but did not reply it.
15-09-2009 : To make up the said news telecast as valid and reasonable, the complainants Kishore Kanti Biswas & Newton Biswas filed a new complaint before the Investigating Officer Anandamoy Chatterjee of Barasat P.S, believed to be insisted by the Star Anand authority so as to suppress their fault of telecasting a partial and untrue news item.
21-09-2009 : Star Anand failed to establish the reasonability in publishing the said News, neither replied the notice sent by the accused Sandip Thakur nor shared the Complaint no. alleged to have been filed before the C.I.D. by the complainants.
21-09-2009 : Not getting any reply from the Star Anand or receiving communication from the Complainants, the Accused Sandip Thakur filed complaint before the Madhyamgram I.C. holding all the complainants responsible for admitting a false and baseless complaint against him and the corresponding telecast of untrue news telecasted by Star Anand.
21-09-2009 : The Madhyamgram I.C. has received the complaint of said Sandip Thakur but instead of lodging the complaint as F.I.R, it has been lodged as a General Diary and the I.C. has given a number IV / 231 of 2009 with the assurance to convert this Diary as F.I.R. on a later date on completion of investigation about the complaint on a sooner date but even after passing of a reasonable time, neither the Madhyamgram I.C. investigated in the matter nor converted the said General Diary as F.I.R, repeated visits and production of relevant documents before this investigation Centre later by the accused Sandip Thakur yielded him no fruitful result. The investigation centre remained indifferent to convert the G.D. as F.I.R. and the accused remained prejudiced for the same.
23-10-2009 : The Accused Sandip Thakur received a phone Call from the Barasat P.S. to meet the said I.O. Anandamoy Chatterjee in connection with a complaint filed before said I.O. and corresponding assurance for bail so the accused meets the said P.S. in the morning but as soon as he meets said I.O. the accused has been indiscriminately arrested by the said I.O, said to be produced before the Chief Judicial Magistrate, Barasat. Considering the Sections of I.P.C applied by the I.O. it is evident that an unrealistic approach has been made by the said I.O. by falsely implicating the accused in said criminal cases.
The particulars of the grounds of arrest do not clearly exist in the F.I.R. nor are they well-founded. The provisions of the special Act regard to the arrest of the persons and the production of the arrestee does not clearly serve the purpose of Section. 167 (1) of the IPC. There must be grounds for believing that the accusation or information is well-founded, the I.O. making the investigation should have forthwith transmitted to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case but he did not do so.The arrest has been made only because it is lawful for the I.O. to do so due to the existence of his power to arrest even against the cost of improper justification for the exercise of his power.
Section 408 of IPC states Criminal breach of trust by clerk or servant however considering the nature of the case and the relationship of the accused with the complainants it can not be established that the accused is a clerk or servant of the complainants. Admittedly the complainants are the profit sharers of the business and a profit sharer can’t be the employer of another sharer of the business in absence of any written agreement. It is not clear how the Section 408 of IPC can be applied in this case.
Section 420 of IPC does not define cheating but it states punishment for Cheating and dishonestly inducing delivery of property. So it is mandatory to establish Section 415 of IPC that defines cheating, before applying Section 420 of IPC.
Section 415 of IPC defines Cheating as whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
(1) A intentionally deceives Z into a belief that A means to repay any money that Z may led to him and thereby dishonestly induces Z to lend him money. A not intending to repay it A cheats.
However the question of repayment arises when there is a borrower and lender relationship between the parties but considering the instant case such relationship can not be established between the parties admittedly, as it is also evident in content of the complaint, the relationship among all the parties in the instant case are profit sharing partners.
(2) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver and thereby dishonestly induces Z to advance money upon the faith of such deliver. A cheats; but if A, at the of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
If above illustration (2) is considered in the instant case, intention of deceiving by A can not be established since both of the debit and credit transactions made between the parties has been gradual and time to time effected during a considerable long time there were several withdrawals of money by the complainants from the business either as profit or withdrawal of capital. However, the question of maintaining accounts a matter among the parties with mutual understanding. The fact of withdrawal of money, either as profit or withdrawal of investment, has been stated in the complaint made before the Madhyamgram I.C, by the accused on 21-09-2009 vide complaint no IV / 231 of 2009. Unfortunately, it has not been considered by the I.O. of Barasat P.S. in the case No 756 of 2009.
The very action of the I.O. violated human rights of the accused also violated the rights of personal liberties and privileges of the accused. The arrest can not be made in a routine manner on a mere allegation of commission of an offence made against the accused. It would be a prudent for the I.O. in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.
POST PRODUCTION OF THE ACCUSED BEFORE THE LD. CHIEF JUDICIAL MAGISTRATE.
23-10-2009 : The Accused in the Case 756/09 Sandip Thakur has been produced before the acting C.J.M, Barasat and applied for the interim Bail through his Advocate L.d. Bhaskar Lahiri on the ground of non-maintainable sections applied by the I.O. concerned and he reasoned before the Ld. court on his behalf
The Public Prosecutor in the case did not oppose the application for Interim Bail since he failed to understand how the sections of the charges under I.P.C. could be applied against the accused also he did not find any intention of the accused that can imply him as a cheater, nor he understood why this case might be tried in a Criminal Court where the nature of the case is company related. The P.P. also traced on the statement of “false cheques” mentioned in the F.I.R. but he failed to understand what the term “False Cheques” meant, He questioned before the Ld. Court, whether those cheques were returned due to insufficiency of fund or bounced for similar reasons, the nature of “False Cheques” is questionable.
The statement of the complainants in the F.I.R. clearly reflected that their relationships in the business in question as investors and admittedly also as “profit sharers” so the question of liability of the business can not be fully burdened on the accused.
Their relationships are quite old and in many earlier occasions too both of the accused and the complainants have exchanged money among them in the self same business and the complainants also realized most of the portions from their investment in the business so naturally intention of the accused can not be established of a cheater.
Since the complainants has admitted to be the profit sharers in the business so reasonably a profit sharer is one either an owner or a partner or a share holder in a business so naturally any financial risk or gain of that business in question is a subject of distribution among the owners or partners or share holders in question. Besides neither the accused is clerk nor a servant of the complainants, their relationships appears to be the business partners so it is not clear how the accused can be held solely liable for the gain or risk of the business concerned or in other words in absence of any written mutual agreement, how the complainants can demand guarantee from the accused for a secured gainful return of the business where they have admitted as profit sharers.
The accused here appears to be the only performer of the business while he is also one of the partners of the business in question. Nowhere a borrower and lender or buyer and seller relationship and vice versa can be established between the complainants and the accused. A case of cheating is maintainable where there is a relationship/pretended relationships like borrower and lender or buyer and seller between the parties but in the instant case their relationships can be deemed to be as partners and all of them are known to each others quite for a long time so the nature and the intentions of the accused were well known to the complainants.
Similarly a case of breach of trust by clerk or servant is only maintainable where the accused is employed as a clerk or servant by the complainants but such relationship can not be established here between the concerned parties.
23-10-2009 The accused has been sent to the judicial custody. Prayer for interim bail has not been considered due to unclear nature of the instant case, I.O. has been directed to submit the case diary on 27-09-2009.
27-10-2009 There was a cease work by the association of the advocates so nothing can be preceded before the Ld. Court of CJM, Barasat and date of the instant case has been fixed on the very next day. The accused was not sent to be present before the ld. Court.
28-10-2009 Due to huge number of cases filed on this day before the ld. Court, date of the instant case has again been re-fixed on the very next day.
29-10-2009 Re-application for granting interim bail has been rejected due to the same said reason, I.O. has been redirected to submit the case diary on 03-11-2009. The accused is sill in the Judicial Custody.
THE ACCUSED IS MY YOUNGER BROTHER.