IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:- HON’BLE JUSTICE CHAITALI CHATTERJEE DAS. CRR 1422 OF 2023 BAL KISAN SARIA AND OTHERS VS KAUSHIK BASU For the Petitioners : Mr. Soumopriyo Chowdhury, Adv. Mr. Kausik De, Adv. Mr. Raghav Munshi, Adv. Ms. Mohini Majumdar, Adv. Ms. Ayelita Ghosh, Adv. Ms. Anamika Pandey, Adv. Heard On : 18.09.2026 Judgement on : 18.09.2026 Uploaded on : 22.09.2026 CHAITALI CHATTERJEE DAS, J.:- 1. This is an application filed by the petitioners for quashing of proceedings in Complaint Case no. 2064 of 2022, pending before the Learned Judicial Magistrate, 9th Court, Alipore, 24 Parganas, South under section 406/420/408/468/120B/34 IPC. Page 2 of 14 Case of the petitioners 2. The petitioner no.1 Bal Kishan Saria is the chairman of the Governing Body of Darjeeling Tea Association, a renowned non-profit association constituted as a coordinating body between Tea products/Tea garden owners and the Tea authorities of India. DTA was incorporated in the year 1873 known as originally Darjeeling Planters Association. The said association is duly registered under the Society’s Registration Act, 1961. Petitioner no. 2 to 10 are holding various position in the DTA. According to the rules of DTA, the members of the association are elected and holds honorary positions to Chairman, Vice Chairman, President, and Additional Vice Chairman etc. without any remuneration. However, certain other positions in the Association are secretary/secretary general or the position of principal advisor, which posts have prescribed remuneration. 3. The Opposite Party herein was appointed as the Secretary of DTA with effect from 2nd February, 2001. Since the Chairman, Vice Chairman, Additional Vice Chairman was elected persons they changed from time to time but the Opposite Party retained the position of Secretary and later became Secretary General since his appointment in the year 2001 continuously. In such capacity Opposite Party was empowered to deal with the entire affairs and documentation of DTA and virtually had control and executive authority over the day-to-day running of the administration of DTA. Since he was enjoying the position for a long period, he consistently siphoned funds and fudged accounts and committed other misappropriations. That went to such alarming level that the Opposite Party himself generated appointment letters appointing himself as the Secretary adding additional pages with such appointment letters under the caption “Points not covered in the letter of offer”. He there after added additional heads such as fuel and electricity, servant and driver, transport and telephone, cell phone, flat maintenance, etcetera, taking the cumulative additional perquisites starting from ₹23, 575/- in the year 2006 to ₹55,000/- in the year 2011 over his basic remuneration. He never got the approval of the Governing Body of DTA or had signature of the chairman in any of such document. Still, he added those heads himself and withdrew his huge amount of funds every month from the bank account of the DTA. As a result, his basic salary in the year 2011 was ₹41, 785/-, which was approved by the chairman of DTA and an amount of Rs. 55,000/- was towards perquisites head, which was not approved. After there was a change of a Governing Body of DTA in the year 2020, the new Governing Body when scrutinised the overall accounts of DTA objection was raised by the opposite party, and this created suspicion in the mind of the Chairman and other elected honorary post holders. 4. On asking the opposite party suddenly issued a letter dated January 19, 2021 intimated to the DTA that he is not willing to work further and made a money claim on DTA. The subsequent Governing Body after scrutinising the account resorted to conduct a special audit and appointed M/S M.M Chopra and Company, a reputed chartered accountant firm for conducting special audit and it was detected that huge amount of cash benefits which were additionally imposed on the DTA by the opposite party for himself were taken out in cash salary and other sanction benefits were disbursed through bank account. Huge amount of cash vouchers were found during the special audit which were completely unexplained. These startling revelations left no other alternatives but for lodging a complaint against the opposite party before the appropriate authority. In the meantime, after receiving the letter dated January 19, 2021, the DTA accepted the resignation of the opposite party by a letter dated October 25, 2021 and as a mark of leniency towards him, DTA even offered to pay an amount of ₹10 lakhs to the opposite party. He instead of accepting such offer continued to illegally occupy the office of DTA and lastly by a letter dated 25 October 2021 by DTA he was called to vacate the office premises forthwith. 5. After that by a circular dated November 18, 2021 issued by the petitioner no. 1, being the Chairman, DTA, it was communicated to all members of the DTA that the resignation of the opposite party from the position of Secretary General had been accepted by DTA and the Office of the DTA situated at 6, Netaji Subhash Road, Kolkata- 700001 would be handled by the petitioner no. 2 herein holding the position of the Principal Advisor of the DTA. After receipt of such report of special audit, the petitioner no. 2 being the authorised representative of DTA l lodged a complaint against the opposite party before the Officer-in-Charge of Hare Street Police Station. Within a month thereafter, the opposite party filed a petition of complaint against the petitioner no. 1 and 2 before the Learned Chief Judicial Magistrate at Alipore, alleging commission of offences punishable under Section 499, 500, 120B of the Indian Penal Code. It was further alleged that the circular dated 18th November, 2021 has amounted to criminal defamation to him. The Opposite Party thereafter came with a barrage of complaints against the petitioners in one forum or the other with the sole intention of harassing the petitioners in every possible manner. Page 5 of 14 6. The learned Magistrate on the basis of such complaint took cognizance and the case was transferred to the file of learned Judicial Magistrate, 9th Court at Alipore and the learned Judicial Magistrate issued process against the petitioners only under Section 406 of the Indian Penal Code but in the self- same order recorded in the earlier paragraph that he had found prime offences under Section 406, 420, 408, 468, 120B and 34 of the Indian Penal Code against the petitioners. Hence, this revisional application has been filed for quashing of the entire proceeding. Submissions 7. The learned Advocate representing the petitioner submitted that both the orders taking cognizance and the order issuing process reflects total non- application of judicial mind on the part of the Learned Magistrate, which is clear from the contents of the complaint itself that Opposite Party has attempted to justify his mala fide, illegal and designed activities of misappropriating the funds of DTA, were ultimately traced out during the course of special audit and have therefore filed the petition of complaint as pre-emptive measure against the petitioners. It is further submitted that it is clear from the contents of the complaint itself that the opposite party has attempted to justify his mala fide, illegal and dishonest activities of misappropriating the funds of DTA and only in order to protect himself from such charges maliciously, this complaint has been filed which does not make out the essential ingredients of the offences as alleged. 8. It is his further contention that for attracting culpability under Section 406 of the Indian Penal Code, it is required that a valuable asset or property must be entrusted with the accused and the said property or asset must have been converted through the dishonest and wrongful gain of the accused. The so-called ex gratia payment and leave travel allowance payment as claimed by the Opposite Party in the impugned petition of complaint is a part of the document which was fraudulently generated by the Opposite Party and did not have any approval of the Governing Body of DTA not does it bear any signature or approval from any concerned authority. The ingradient of Section 468 of Indian Penal Code is also not made out in the instant case in as much as the basic ingredient of forgery is absent. For attracting forgery there must exist false document within the meaning of Section 464 of the Indian Penal Code. A document only qualifies as a false document when it is a false replication or duplication of an original document. In the instant case, there is no existence of any such document which may amount to false document to attract section 464 of Indian penal code. That apart there is no element of criminal breach of trust attracted against the petitioners. In the instant case, the question of applicability of Section 408 of Indian Penal Code also does not arise. 9. The learned Advocate has filled a supplementary affidavit incorporating the First Information Report registered at the behest of DTA so its authorised representative against the opposite partition, which is pending at the stage of completion of investigation .It is further submitted that the complaint was lodged by opposite party before Hare Street Police Station dated August 20, 2020. A report in final form being no. 127 of 2024 was submitted by the Investigating Officer in favour of the petitioners declaring the case as “Mistake of Fact”. However, the opposite party challenged the said report through our protest/Narazi petition, praying for further fresh investigation which has been allowed by the Trial Court and hence pending at that stage. The other FIR registered at the behest of the Opposite Party against petitioner no. 1 and 2 , being New Alipore PS/DD case no. 58 of 2022 dated May 3, 2022, under Section 420/406/120B IPC has also been completed by filing a report in final form in favour of the petitioner no. 1 and 2 declaring as “Mistake of Facts” and the same has been challenged by filing a protest petition for further investigation, but the same was rejected on contest by the Trial Court vide an order dated May 6, 2026. In the Complaint against petitioner no.1 to 8 being New Alipore PS case no. 63 of 2022, under Section 420/406/120B of the IPC, 1860 report in final form was submitted by the investigating officer declaring the case as “mistake of fact” . The protest petition filed by the Opposite Party is pending for final adjudication before the Trial Court. Lastly, the complaint lodged against the petitioners amongst others being New Alipore Police Station case no. 24 of 2026, dated February 10, 2026, under Section 61(2)/318(4)/344 BNS,2023 is pending at the stage of completion of investigation and filing of final report. The Opposite Party therefore have filed a barrage of criminal complaint cases against the petitioners in various forums which includes the present one in order to harass them which should be nipped at the bud. 10. The judgement relied upon in this respects are Sekhar Sharma versus State of West Bengal and Another1, Pawan Kumar Sethia and others versus State of West Bengal and Another2, Dasrathbhai Narsangbhai 1 (2025) 1 HCC (Cal) 402 2 2022 SCC OnLine Cal 2076 Chaudhary and Another versus the State of West Bengal and Another3 and prayed for quashing of the entire proceeding. 11. None appears on behalf of the Opposite Party, despite receipt of the copy of the revisional application as reflected from the affidavit of service filed before this Court. Analysis 12. The chequered history of the factual matrix, demonstrate severe enmity between the Opposite Party and the present petitioners and the germane of the complaint , lodged under Section 200 Cr.P.C against the petitioners alleges an amount of ₹7, 78, 644/- on account of leave travel allowance, payable annually by the said Association to the petitioner as on April 30, 2022, along with the assured amount of ₹7, 36, 815/- on account of ex- gratia payment payable annually plus applicable accrued interest of ₹5, 00, 000/- total in ₹20,75,459/- is due from the association of which the petitioners are the secretary and other office bearers. 13. On-going through the materials from the record it transpires that the throughout the DTA approved the monthly emoluments under two components being basic salary and house rent allowance and conveyance allowance, and accordingly it was signed by the Chairman. The letter of appointment never covered the emoluments as made annexure towards monthly emolument which contains the amount towards fuel and electricity, servant, transport, telephone, cell phone, flat maintenance. The said annexure did not find place in the original approved letter as annexure and was not a signed document. It is a settled proposition of law that while 3 2024 SCC online Cal 12118 exercising jurisdiction under Section 482 Cr.P.C, the High Court is not expected to conduct a mini trial or undertake a meticulous examination of the evidence .At the same time ,where it is manifestly apparent from the materials on record that the present petitioners in their respective capacities as the office bearers holding various positions in the DTA including the principal advisor, secretary, Vice Chairman and members of Governing Body, had lodged a complaint against the de facto complainant alleging siphoning of substantial amount of money from the account of DTA and such allegations are primarily supported by a special audit conducted in that regard ,which necessitated the lodging of the complaint, culminating in the submission of charge sheet and subsequent barrage of criminal complaints lodged by the de-facto complainant against the present petitioners separately and jointly assumes significance .From the chronology of events and the circumstances, the possibility that the criminal proceedings have been initiated with an ulterior motive and or for wreaking vengeance on account of personal animosity cannot be altogether brushed aside. 14. 14. In the case of Dasrathbhai Narsangbhai Chaudhary and Another (Supra) learned Coordinate Bench has relied upon the decision of the Apex Court of The State of Kerala versus A. Pareed Pillai4, where it was held, “To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently 4 (1972) 3 SCC 661 fulfill the promise.” In Hridaya Ranjan Prasad Verma versus State of Bihar5 (the Hon’ble Apex court held:- “There was no allegation in the complaint indicating, expressly or impliedly, any intentional deception on the part of the appellants right from the beginning of the transaction. The Hon’ble Apex court drew distinction between cheating from mere breach of contract. According to the Hon’ble Apex Court, definition of cheating contemplates two separate classes of acts namely deception by fraudulent or dishonest inducement and deception by intention. Deception by fraudulent or dishonest inducement must be shown to exist right from the beginning of the transaction.” 15. In the case of Pawan Kumar Sethia (Supra) Learned single Bench quoted the observation made by the Apex Court in Satish Chandra Ratanlal Shah versus State of Gujarat6 where it was observed in paragraph 14: “14. Moreover, this Court in a number of cases has usually cautioned against criminalising civil disputes, such as breach of contractual obligations (refer to Gian Singh vs State of Punjab the State of Punjab (2012) 10 SCC 303. The legislature intended to criminal only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted in involuntary and inefficient transfers, under Section 415 IPC.” 5 2000) 4 SCC 168 6 (2019) 9 SCC 148 16. In the instant case, the sum and substance of the complaint lodged under Section 200 of the Cr.P.C by the complainant against the present petitioners clearly demonstrate the grievances to that extent that he was employed at the Darjeeling Tea Association and his services as secretary of DTA was confirmed on 1st January, 2005 and from the year 2007 onward, he was engaged with the responsibility of implementation and supervision of the Tea Board of India’s Darjeeling tea traceability and certification system named as Darjeeling Trade Chain Audit and Surveillance System referred to as Darjeeling Tea Trade Chain Integrity System, being outsourced by the Tea Board of India to the Darjeeling Tea Association. He served in that capacity for long period and subsequently promoted and designated as the Secretary General but after the change of governing body in the year 2020 he was not being paid his lawful dues despite specific assurances given by DTA. The petition of complaint do not disclose about his letter of intimation dated 19.1.2021 to the DTA about his unwillingness to work any further however in the revisional application this fact has been disclosed .Admittedly he made a money claim towards his due amount from DTA which have accrued on account of leave travel allowances and other assured amount and also on account of ex-gratia payment, which falls due from the said Association. The content of the petition therefore, on the face of it, even if it is taken in its entirety failed to demonstrate any offence committed under section 406 of the Indian Penal Code. 17. On the contrary the revisional application disclosed about misappropriation of huge amount and to the existent specific complaint lodged after he failed to co-operate with the new Governing Body and submitted his letter of intimation of his unwillingness to continue further. The order passed by the learned Magistrate after examining the complaint under Section 200 of the Cr.P.C issued process under Section 204 of the Cr.P.C for commission of offence under Section 406 of the Indian Penal Code without specifically expressing even that the offences under the other provisions were not substantiated. It is only mentioned that prime offence made out against the accused persons under all the provisions. However in terms of the order of the Learned Magistrate the process was issued only for the offence under section 406 of the Indian penal code that reflects prima facie enough materials were not found to attract offences under Section 420/408/468/120B/34 of the Indian Penal Code for which the Learned Magistrate was enough satisfied to issue summons. 18. It is therefore to be assessed whether at all any ingredients are there to constitute a prima facie offence under this provision. With regard to 406 IPC in the case of Delhi Race Club (1940) Ltd versus State of UP7, the Hon’ble Supreme Court took note of the decision of S.W. Palantikar & Ors. vs State of Bihar & Anr.8 and observed that- “9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or 7 (2024) 10 SCC 690 8 (2002) 1 SCC 241 wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.” 19. In this regard, this this Court feels necessary to rely upon a decision reported in CBI, SPE, SIU(X), New Delhi versus Duncan Agro Industries Limited9 where it was held that- “……The expression 'Trust' in section 405 I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like the relationship of trustee and beneficiary, bailer and Bailee, master and servant, pledger and pledger. When some goods are hypothecated by a person to another person. the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit…...” 20. The breach of service condition if any or non-payment of salary or other monitory benefit can never fulfil the criteria to constitute an offence under section 406 IPC. Therefore, considering the entire fact and circumstances of 9 (1996) 5SCC 591 the case, this is of the view that even if any grievance is there against the present petitioners that can be agitated before civil forum by filing appropriate proceeding to recover his dues, but by no men rea or criminality can be attached for non-payment of assured amount as claimed by the complainant. Conclusions 21. Hence this court is the considered view that, if this proceeding is allowed to be continued, further, it would be an abuse to the process of law and therefore is a fit case where the inherent power should be exercised by this court to quash the entire proceeding pending against the present petitioners. In view of the above, the instant criminal revisional application stands allowed. The proceeding in Complaint Case no. 2064 of 2022, pending before the Learned Judicial Magistrate, 9th Court, Alipore, 24 Parganas, South against the petitioners being complaint case no. 2064 of 2022 is here by quashed against the petitioners. 22. All other connected application, if any, hereby stand disposed of. 23. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities. [CHAITALI CHATTERJEE (DAS), J.]