Arup Roy vs The State Of West Bengal & Anr on 30 March, 2026

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    Calcutta High Court (Appellete Side)

    Arup Roy vs The State Of West Bengal & Anr on 30 March, 2026

                                                                          2026:CHC-AS:504
                          IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL REVISIONAL JURISDICTION
                                  APPELLATE SIDE
    
    
    
    PRESENT:
    
    THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
    
                                  CRR 727 of 2025
    
                                     Arup Roy
                                         Vs.
                           The State of West Bengal & Anr.
    
    
    For the Petitioners            :
                                              Mr. Moyukh Mukherjee
                                              Mrs. Aishwarya Bazaz
                                              Ms. Sharmistha Basak
    
    
    For the OP No.2                :          Mr. Mrityunjoy Chatterjee
                                              Ms. Mousumi Banerjee
    
    
    
    For the State                  :          Mr. Soumik Ganguly
                                              Mr. Ratul Ghosh
    
    
    
    Heard On                       :          13.01.2026
    
    
    Judgment on                    :          30.03.2026
    
    
    Dr. Ajoy Kumar Mukherjee, J.
    

    1. The petitioner herein has assailed the proceeding being Panchsaray

    PS Case no. 59 of 2024 under sections 318(4) /316(4)/61(2) of Bhartiya

    SPONSORED

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    Nyaya Sanhita 2023 (in short BNS) presently pending before learned ACJM,

    Alipore.

    2. The allegation levelled in the complaint is that the petitioner, in the

    year 2021, came before the opposite party no.2 and introduced himself as

    reputed business person and had expressed his intention to join in the

    business of the opposite party no.2 as profit sharing partner and thereafter

    they entered into a partnership deed in the name and style “M/s Aavya

    Tech” on 15.04.2021. Opposite party no. 2 relied upon the petitioner and

    had handed over all the business related documents and maintenance of the

    business account and had also entrusted upon the petitioner for looking

    after the properties related to the business. However, till date the petitioner

    had failed to invest any capital amount upon the said partnership business.

    When the opposite party no.2 found himself unable to run to the

    partnership business, he requested the petitioner either to make investment

    in the said business or else tender resignation as partner from the

    partnership business and return all necessary documents, bounced cheques

    and all other documents of the business which was in his custody.

    Thereafter when the opposite party no.2 started to verify the accounts, he

    found a huge deficiency and discrepancies in the Income Tax return (in

    short ITR) portal, as well as the bank statement and also found

    misappropriation in the ITR file of the partnership firm. He also found some

    forged and fabricated documents and books of accounts, that has been

    uploaded in income tax portal as well as income tax return of the said

    partnership firm. When the opposite party no.2 had gone through the books

    of account of the said firm, he found that an amount of Rs. 16,33,000/- has

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    been misappropriated by the petitioner without his prior knowledge. It was

    also detected that the petitioner had taken a huge money from the account

    of partnership business on the pretext of paying the vender and supplier but

    he did not pay the money to them and instead misappropriated the same

    and converted to his own use. Thereafter the petitioner removed all the

    valuable documents from the office of the partnership business. In fact the

    petitioner entered into a criminal conspiracy along with his associates and

    thereby induced the opposite party no.2 to part with on good faith all

    necessary original documents, bounced cheques, promissory note, cash

    book, rubber stamp and many other bank account related document and

    thereafter the petitioner after getting the domain over the documents and

    property of the opposite party no.2, misappropriated the aforesaid amount of

    money to the tune of Rs. 16,33,000/-.

    3. The Opposite party no. 2 went to the local police station but the police

    despite receiving the complaint did not start investigation and thereafter on

    the basis of the direction made by learned Magistrate vide order dated

    31.07.2024 a preliminary enquiry was conducted and upon receipt of report

    learned Magistrate directed for investigation invoking his jurisdiction under

    Section 175(3) Cr.P.C. against the petitioner and his unknown associates.

    4. Being aggrieved by the said proceeding, learned counsel for the

    petitioners submits that the allegation in the complaint are false and they

    are based on suspicion and no specific allegation has been attributed

    against the petitioner and he is no way connected with the alleged offence.

    He further argued that the genesis of the present FIR is a business

    disagreement between two partners of a registered partnership firm, relating

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    to the manner in which partnership firm and accounts are to be managed.

    As such, if the entire set of allegations are taken at their face value, it

    concerns civil and contractual rights arising out of partnership dealings and

    do not constitute any criminal offence. The complaint essentially accuses

    the petitioner of ‘mishandling partnership funds’ and ‘not returning certain

    business documents’ which squarely falls within the ambit of the

    Partnership Act 1932, and can be instituted before the civil jurisdiction of a

    competent court.

    5. He further submits that inspite of the petitioner’s repeated

    cooperation the investigating officer reported to the Magistrate alleging non-

    cooperation, which is factually incorrect and not supported by records. The

    petitioner appeared before the investigating officer on multiple occasions

    with relevant documents and explanations. However, the investigation has

    proceeded in a mechanical and biased manner without any material to

    suggest commission of a cognizable offence. There is no specific instance of

    forgery, fabrication or dishonest intention at the inception and therefore

    essential ingredients of the offences alleged under BNS are conspicuously

    absent. The partnership deed itself demonstrates that both parties

    voluntarily agreed to the terms of the business and there is no allegation

    that the petitioner entered into the partnership with any dishonest

    intention. The complaint refers to ‘unknown associates’ as conspirator but

    does not name or describe any co-conspirator nor any specific act of

    conspiracy. Therefore section 61(2) BNS has got no application. As there is

    no entrustment, section 316 (2) BNS has got no application in view of law

    laid down by this court in Jayanta Saha Vs. State of West Bengal & Anr.

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    Another reported in (2004 SCC Online Cal 161), which held that in

    partnership matters, each partner has an equal and undivided interest in

    the partnership property and therefore no entrustment arises between

    partners, which is an essential ingredient for criminal breach of trust. It was

    further held that entire allegation arises from internal partnership affairs

    and lacks specific assertions of fraudulent inducement or dishonest

    misappropriation. The offence of cheating under section 318 (4) BNS has

    also not been made out. In this context he also relied upon judgment of

    Krishna Chandra Banik and Ors. Vs. Harkishan Modak reported in

    (1924) SCC Online Cal 245.

    6. Referring the judgment, passed in Delhi Race Club 1940 Ltd. and

    Ors. Vs. State of U.P and Another., (2024) 10 SCC 690, he contended

    that this judgment strongly criticised the mis-application of criminal

    provisions by the Magistrate and the High Court and noted that invoking

    criminal law in purely civil, commercial disputes constitutes an abuse of the

    process of the law. In this context he also relied upon the judgement of

    Allahabad High Court in Naseem Bano Vs. State of U.P and Ors. and

    contended that the criminal proceedings cannot be permitted to continue,

    where the allegations are general, vague or do not disclose the essential

    ingredients of alleged offence. He further contended that the present case

    reflects an attempt to criminalise a purely civil disagreement and thereby

    attracts the principles laid down in State of Haryana Vs. Bhajan Lal

    reported in AIR 1992 Supreme Court 604. Therefore further continuance

    of the instant proceeding will be mere abuse of the process of the court and

    therefore she prayed for quashing the impugned proceeding.

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    7. Mr. Chatterjee, learned counsel appearing for Opposite party no.2

    argued that though complaint has invested his entire share in the

    partnership business but the accused has not invested a single penny in the

    business of the company, since the signing of the partnership agreement on

    15.4.2021 and the petitioner/accused instructed the banks to keep their

    business accounts in debit freeze mode which denied the complainant to

    obtain statements also. The accused misappropriated Rs. 11,33,000/- from

    the HDFC business account which the complainant came to know after

    going through the business account, prepared by the chartered accountant

    of the accused. The complainant further astonished to know that the

    accused had transferred Rs.11,000,000/- plus Rs.33,000/- to his own bank

    account for the convenience of UPI payment to be made to the supplier and

    contractors, which he did not pay and they are still waiting for their

    payments for many months. The accused/petitioner invested the said

    amount of money which he transferred in his own account to purchase a flat

    at Mascot Pearl 2619, Nayabad. The accused even after submitting the IT

    return showed a different picture in the books of account, prepared by his

    appointed chartered accountant. Income tax return showed loses whereas

    books of account shows profits. The petitioner in the IT return of

    assessment year 2023-2024, has even changed the address of registered

    office to his own residential address. Furthermore the accused did not

    deposit Rs. 5,00,000/-, which he took from the office on 04.04.2024 for

    depositing the same to the HDFC Bank. The accused unlawfully removed all

    the documents and items as mentioned in the check list of items, stolen

    from the registered office and for such unlawful action of the accused,

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    complainant could not submit the IT return as well as GST for this financial

    year. He further pointed out that the documents relied by the petitioner in

    the present application are not the uncontroverted documents and issued by

    any statutory authority. Moreover throughout investigation, petitioner did

    not make cooperation with the investigating agency and as such no seizure

    could be made till date to unearth the truth.

    8. Mr. Soumik Gangully learned counsel appearing on behalf of the State

    of West Bengal argued that according to the partnership deed both the

    partners have equal share of the profit and loss and each of them are

    supposed to invest to Rs. 2,50,000/-. Though the opposite party no.2

    invested his share of investment but till date petitioner did not invest his

    share of Rs. 2,50,000/- and during investigation, it has been learnt that in

    the month of April, 2024, said firm sold a flat and received cash amount of

    Rs. 5,00,000/- which was handed over to the petitioner for depositing the

    same in the bank account of partnership firm but he kept the said amount

    in his possession and on being asked the petitioner failed to give any reply.

    Thereafter it has been detected that the petitioner had withdrawn a sum of

    Rs. 11,33,000/- without the knowledge of opposite party no.2. During

    investigation it has also been learnt that the petitioner used his home as

    office address during filing of income-tax return 2022-2023, where he stated

    that the firm incurred loss in their business but it appears that the

    petitioner sent an email through a chartered accountant, where he

    mentioned that the firm has earned profit in their business. He further

    pointed out that during investigation the petitioner preferred anticipatory

    bail before this High Court, but it was rejected and the petitioner was

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    directed to meet the investigating officer along with documents and thereby

    the conduct of the petitioners was also not appreciated. He further submits

    that during investigation, a warrant of arrest was issued against the

    petitioner and several attempts were made, but till now he is absconding

    and for which the State has made a prayer on 23.07.2025 for taking next

    course of action relating to an absconding accused. He therefore submits it

    is not a fit case where the proceeding can be quashed invoking this Court’s

    jurisdiction under section 528 of the BNSS.

    9. I have considered submissions made by both the parties.

    10. The petitioner herein/accused person in the instant criminal

    proceeding has been booked under section 318(4)/316(2) /61(2) of the BNS.

    Therefore at the very outset let me recollect the essential ingredients to

    constitute offence of cheating and criminal breach of trust. In order to

    constitute and offence of cheating the essential ingredients are :-

    (i) The accused made a false or misleading representation, either directly or
    by concealing facts.

    (ii) The victim was induced to deliver property, consent to the retention of
    property, or do/omit to do something, the victim otherwise would not.

    (iii) The Act or omission must cause or likely to cause damage or harm to the
    person in body, mind, reputation or property.

    (iv) The intention to defraud must be present from the very beginning of the
    transaction.

    11. Similarly in order to constitute offence of criminal breach of trust, the

    prosecution must prove that:

    (i) The accused must receive property or dominion over it, holding it on behalf of
    another.

    (ii) The accused must dishonestly converted the property for his own use or dispose
    of it wrongfully.

    (iii) There must be violation of obligation.

    (iv) There must be mens rea, i.e. the act must be intentional and not accidental.

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    12. It is well settled that while considering an application under section

    482, the allegation in the complaint will have to be accepted on the face of it

    and the truth or falsity of which would not be gone into by the Court at this

    stage. Whether the allegations in the complaint are true or not is to be

    decided on the basis of the evidence led at the stage of trial. It is also well

    settled that for the purpose of quashing of the proceeding, though the

    power under section 482 of the Cr.P.C. is to be used sparingly but it may be

    so exercised if,

    (a) the allegations in complaint even if taken at its face value makes no case or

    disclosed essential ingredients of offence.

    (b) where the allegations are patently absurd and inherently improbable so that no

    prudent person can ever reach a conclusion that there are sufficient grounds for

    proceeding.

    (c) where discretion exercised by the Magistrate in issuing process is capricious and

    arbitrary and having based on no evidence or those are wholly irrelevant and

    inadmissible

    (d) where it suffers from fundamental legal defects, such an want of sanction etc.

    (e) in orde4r to present mis carriage of justice

    (f) to prevent abuse of the process of law

    (g) continuance of the proceeding would not sub-serve the cause of justice.

    13. Now let me consider the well settled principle of law and the

    ingredients of offences as above, in the light of the facts of the present case.

    14. In the written complaint

    (a) complainant, has alleged in paragraph 2 that the petitioner Arup Roy

    introduced himself to the complainant as a reputed business person

    and though complainant was initially reluctant to accept him as

    partner, but due to persistent request and persuasion the

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    complainant admired the accused/petitioner as partner of the firm

    namely M/S. Aavya Tech and thereby both of the them executed a

    partnership deed on 15.04.2021.

    (b) It is further alleged in paragraph 3 of the complaint that the

    complainant have relied upon him and handed over all the business

    related document and maintenance of the business accounts and had

    also entrusted upon the accused person for looking after the

    properties, related to the business and had also handed over all the

    necessary original documents, bounced cheques, promissory notes,

    cash books rubbers stamps and many other bank account related

    documents on good faith.

    (c) In para 4 of the complaint it is alleged that till date the petitioner had

    not invested any capital amount in the said partnership business,

    inspite of execution of partnership agreement and had fraudulently

    assured him to make the said investment shortly.

    (d) In para 5, a specific allegation has been made against the petitioner

    that when the complainant started to check the accounts of the

    business, he found a huge deficiency and discrepancies in the Tax

    Return Portal as well as in the bank statement of M/S Aavya Tech and

    also found misappropriation in the Income Tax Return file of the said

    partnership firm, which was entirely looked after as well as

    maintained by the petitioner and his associates. Complainant has also

    discovered some forged and fabricated documents/books of account,

    that has been uploaded in the Income Tax Portal as well as Income

    Tax Return of the said Partnership Firm. After going through the

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    books of account of the said business, it was detected that an amount

    of Rs. 16,33,000/- has been misappropriated by the petitioner without

    the knowledge of the complainant.

    (e) In para 6 of the complaint it is alleged that the petitioner has

    destroyed a huge number of documents related to the said

    partnership business and had threatened with dire consequences.

    (f) In para 7 it is further alleged that the petitioner had taken huge

    money from the possession of the partnership business on the pretext

    of paying the vendors and supplier but he did not pay the money to

    them and instead misappropriated the same.

    15. After receiving the complaint filed under section 175 (3) of BNSS

    learned Trial court asked the Police to make a preliminary investigation in

    order to verify the truth and veracity of the allegation, relying upon

    Priyanka Srivastava Case (AIR 2015 SC 1758) and accordingly police

    submitted report. The relevant portion of the report runs as follows:-

    “While , the u/signed was starting to ask some question regarding the
    complaint letter but he did not want to speak the u/signed regarding the matter
    and he said that he will face the matter on ld, court, so, he did not co operate
    with the u/signed regarding the enquiry in c/w above noted matter. On
    28.08.2024, received a petition with some documents through the ld. Advocate
    of Shri Arup Roy where he mentioned that the complainant and he equal share
    holder (50%-50%) as per agreement and the complainant had registered a
    property in his own name using bank account money of M/S AAVYA TECH
    without consent of him.”

    16. It further appears from the case diary, that petitioner preferred

    anticipatory bail application before this High Court being CRM (A) 3374 of

    2024, wherein such bail application was dismissed on merit vide order dated

    26.09.2024, in view of the fact that the petitioner failed to comply with the

    direction of the High Court dated 19th September, 2024, by which the

    petitioner undertook that he shall provide all the necessary documents

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    including the bank statement for the purpose of proper investigation and

    also shall co operate with the investigating agency.

    17. In support of constituting elements of offence under section 318 (4) of

    BNS, which basically deals with deception from inception, learned counsel

    for the state argued that during investigation, it transpired that opposite

    party no.2 and the petitioner entered into a partnership business by

    executing partnership deed and according to the deed both the partners

    having equal share of the profit and loss, each of them agreed to invest Rs.

    2.5 lakhs at the beginning. Though the opposite party no.2 invested his

    share of investment and though the petitioner was requested several times

    to invest his share, by the opposite party no.2 but the petitioner on several

    occasion assured to pay but did not pay a single penny towards his share of

    Rs. 2.5 Lakhs, which clearly indicates the mens rea on the part of the

    petitioner and the intention to deceive defacto complainant was there from

    the very beginning.

    18. In support of the allegation of criminal breach of trust learned counsel

    for the State argued that during investigation it could be learnt that in the

    month of April, 2024 M/S Aavya Tech sold a flat and received cash Rs. 5

    lakhs which was handed over to petitioner Arup Roy for depositing it in the

    bank account of M/S Aavya Tech but the petitioner misappropriated the

    said amount for his personal gain and did not deposit the said amount to

    the account of partnership business. Learned counsel for the State further

    argued that during investigation it prima facie discloses that an amount of

    Rs. 11,33,000/- had been withdrawn by the petitioner from the partnership

    business without the knowledge of the complainant and he had not return

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    the articles like office stamp, bills, voucher, ITR file, the documents related

    to partnership business etc., which he had illegally taken away from the

    office, in violation of partnership agreement. Learned counsel for the State

    further argued that during investigation it was also learnt that the petitioner

    used his house as office address during filing of Income Tax Return for the

    year 2022-2023, instead of their business address of M/S Aavya Tech,

    where again the petitioner mentioned that the said partnership firm had

    incurred loss in their business. But the same petitioner sent e-mail through

    a chartered accountant namely Tapas Maity, where he mentioned that the

    firm earned profit in their business.

    19. I have carefully perused the contents of the complaint as well as

    materials placed before me, which were collected during investigation. In my

    opinion, it cannot be said that the materials do not disclose the commission

    of any cognizable offence. Merely because the offence was committed during

    the course of a partnership business transaction, it would not be sufficient

    to hold that the complaint does not warrant a trial. Whether the allegations

    levelled in the complaint are true or not will be decided on the basis of

    evidence to be led at the trial but it is certainly not a case in which the

    criminal trial should have cut short. The quashing of the complaint will

    result a grave miscarriage of justice. Moreover it is further submitted by the

    state that the petitioner has prayed for quashment but for the reasons best

    known to him, he is still absconding and has never cooperated with the

    investigating agency.

    20. In M/S Pepsi Foods limited Vs. Special Judicial Magistrate

    reported in (1998) 5 SCC 749 the Apex Court citing the judgment of State

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    of Haryana and Ors. Vs. Bhajanlal, 1992 supp (1) 335 held that power

    under section 482 can be exercised with the sole purpose to prevent the

    abuse of the process of any court or otherwise to secure the ends of justice.

    Para 20 of said judgment runs as follows:-

    21. It is settled that the High Court can exercise its power of judicial review in
    criminal matters. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :

    1992 SCC (Cri) 426 : JT (1990) 4 SC 650] this Court examined the extraordinary
    power under Article 226 of the Constitution and also the inherent powers under
    Section 482 of the Code which it said could be exercised by the High Court either
    to prevent abuse of the process of any court or otherwise to secure the ends of
    justice. While laying down certain guidelines where the court will exercise
    jurisdiction under these provisions, it was also stated that these guidelines could
    not be inflexible or laying rigid formulae to be followed by the courts. Exercise of
    such power would depend upon the facts and circumstances of each case but
    with the sole purpose to prevent abuse of the process of any court or otherwise to
    secure the ends of justice. One of such guidelines is where the allegations made
    in the first information report or the complaint, even if they are taken at their face
    value and accepted in their entirety do not prima facie constitute any offence or
    make out a case against the accused. Under Article 227 the power of
    superintendence by the High Court is not only of administrative nature but is
    also of judicial nature. This article confers vast powers on the High Court to
    prevent the abuse of the process of law by the inferior courts and to see that the
    stream of administration of justice remains clean and pure. The power conferred
    on the High Court under Articles 226 and 227 of the Constitution and under
    Section 482 of the Code have no limits but more the power more due care and
    caution is to be exercised while invoking these powers. When the exercise of
    powers could be under Article 227 or Section 482 of the Code it may not always
    be necessary to invoke the provisions of Article 226. Some of the decisions of this
    Court laying down principles for the exercise of powers by the High Court under
    Articles 226 and 227 may be referred to.

    22. In State of M.P. Vs. Awadh Kishore Gupta and Ors. reported in

    (2004) 1 SCC 691 it has been clearly held that at this stage, court is not

    supposed to appreciate evidence to conclude whether the materials

    produced are sufficient or not for convicting the accused and the relevant

    portion of the judgment may be profitably quoted herein.

    13. It is to be noted that the investigation was not complete and at that stage it
    was impermissible for the High Court to look into materials, the acceptability of
    which is essentially a matter for trial. While exercising jurisdiction under Section
    482 of the Code, it is not permissible for the Court to act as if it was a trial
    Judge. Even when charge is framed at that stage, the Court has to only prima
    facie be satisfied about existence of sufficient ground for proceeding against the
    accused. For that limited purpose, the Court can evaluate material and
    documents on records but it cannot appreciate evidence. The Court is not
    required to appreciate evidence to conclude whether the materials produced are
    sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar

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    Lal [(1992) 3 SCC 317 : 1992 SCC (Cri) 636] it was observed that when the
    materials relied upon by a party are required to be proved, no inference can be
    drawn on the basis of those materials to conclude the complaint to be
    unacceptable. The Court should not act on annexures to the petitions under
    Section 482 of the Code, which cannot be termed as evidence without being
    tested and proved. When the factual position of the case at hand is considered in
    the light of principles of law highlighted, the inevitable conclusion is that the High
    Court was not justified in quashing the investigation and proceedings in the
    connected case (Crime No. 116 of 1994) registered by the Special Police
    Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The
    State shall be at liberty to proceed in the matter further.

    23. In the result, I find that this is not a fit case where the proceeding can

    be quashed at its threshold, invoking this court’s jurisdiction under section

    482 Cr.P.C read with section 528 of BNSS.

    24. CRR 727 of 2025 thus stands dismissed.

    25. However, I make it clear that I have not expressed any opinion on the

    merits of the allegations. The investigating agency shall proceed with the

    matter expeditiously, uninfluenced by any observation made by this court.

    Urgent photostat certified copy of this order, if applied for, be supplied to the

    parties, on priority basis on compliance of all usual formalities.

    (DR. AJOY KUMAR MUKHERJEE, J.)

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