Dilip Kumar Ganguly vs State Of West Bengal & Anr

Madhumati Mitra, J

The petitioners are the accused persons in connection with the proceedings being C.N.Case No.0010233 of 2015 under Sections 420/406/120B of the Indian Penal Code pending before the Court of Learned Metropolitan Magistrate, 19th Court at Calcutta.

The petitioners have also prayed for setting aside the order dated April 16, 2015 passed in connection with the above mentioned proceedings.

The brief facts giving rise to the present application are as follows:-

On 17.03.2015, the opposite party no.2 filed an application under Section 156(3) of the Code of Criminal Procedure against the petitioners including one Ashima Ganguly for commission of alleged offences punishable under Sections 406, 420 and 120B of the Indian Penal Code before the Learned Additional Chief Metropolitan Magistrate, Calcutta, with a prayer to send the petition of complaint to the Officer-in-charge, Jorasanko Police Station for investigation. After considering the averments of the petition of complaint and the materials placed on record, the Learned Magistrate rejected the prayer of the complainant to treat the same as an F.I.R. and registered the petition of complaint as a complaint case. Learned Magistrate took cognizance of the alleged offences. Thereafter, Learned Additional Chief Metropolitan Magistrate transferred the case to the file of the Learned Metropolitan Magistrate, 19th Court, Calcutta, for disposal. Learned Magistrate examined the complainant and her witness under Section 200 Cr.P.C. and observed that there was sufficient ground to proceed with the case against the petitioners for commission of the alleged offences punishable under Sections 420/406/120B of the Indian Penal Code. Accordingly, the Learned Magistrate issued process against the present petitioners along with other accused to face trial for commission of the alleged offences punishable under Sections 420/406/120B of the Indian Penal Code.

The petition of compliant has been annexed to the application for quashing of the proceedings under Section 482 of the Code of Criminal Procedure. From the averments of the said petition of complaint, it appears that accused no.1 who is not a petitioner before this Court had represented herself to be the owner of Premises No.111/1, Grand Trunk Road (South),Police Station & District - Howrah under Howrah Municipal Ward No.30 and the accused had represented that they were in urgent need of money. It has been alleged in the said petition of complaint that the accused persons induced the complainant to purchase that premises. Being induced by the false representation made by the accused persons, the complainant believed that the accused no.1 was the owner of the premises and agreed to purchase the same at a consideration of Rs.20 Lakhs. Both the complainant and the accused no.1 entered into an agreement dated October 7, 2013 regarding the purchase of the said premises at a consideration of Rs.20 Lakhs. Pursuant to that agreement the complainant had paid a sum of Rs.3 Lakhs to the accused by issuing a cheque bearing no.780372 dated October 7, 2013 for Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand) drawn on Indian Bank, Strand Road Branch, Kolkata and Rs.50,000/- (Rupees Fifty Thousand) in cash towards consideration money of Rs.20 Lakhs. It was agreed between the parties that the balance consideration money would be paid at the time of execution of the deed of conveyance. The cheque of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) was duly encashed by the accused. In terms of the agreement for sale, the deed of conveyance in respect of the premises was to be executed by the accused in favour of the complainant or her nominee/nominees within 6 months from the date of the agreement. On the request of the complainant, the accused had duly handed over the Xerox copies of the title deed in respect of the said property to the complainant. Thereafter, the accused did not execute the deed of conveyance within the time stipulated in the agreement in spite of several requests on the part of the complainant. Accused had requested the complainant to extend the time till April 30, 2014 for execution of the deed of conveyance and said request had been accepted by the complainant. In spite of that, the accused did not execute the deed of conveyance and had again requested for extension of time vide letter dated 26th 2014 till June 30, 2014.

On May 13, 2014, the accused had again requested the complainant to pay a sum of Rs.50,000/- and accordingly the complainant had paid Rs.50,000/- to the accused vide cheque no.449224 dated May 13, 2014 drawn on Indian Bank, Strand Road Branch, Kolkata. On May 27, 2014 accused had requested the complainant to pay Rs.1 Lakh and accordingly, the complainant had paid Rs.1 Lakh to the accused vide cheque no.449226 dated May 27, 2014 drawn on Indian Bank, Strand Road Branch, Kolkata. On June 14, 2014 the accused had requested the complainant to extend the time to execute the deed of conveyance till August 2014. Again on 29th August, 2014 another request had been made on the part of the accused for extension of the time to execute the deed of conveyance till December 31, 2014. In the month of November,2014 complainant had again requested the accused for extension of time to execute the deed of conveyance and the accused had agreed to execute the same on December 2, 2014. But, the accused did not execute the deed of conveyance on December 22, 2014. He requested the complainant for further extension of time till January 20, 2015. It has been alleged by the complainant that the accused was avoiding the execution of the deed of conveyance on various pretexts. Thereafter, following several requests the accused became ready to execute the deed of conveyance and the complainant prepared the bankers cheque drawn for payment of balance consideration amount and made the payment of the stamp duty through e-payment. But the accused did not execute the deed of conveyance and was trying to enter into an agreement in favour of a third party and to deliver possession of the premises in question to the third party. It has been alleged by the complainant that she has been cheated by the dishonest and fraudulent act of the accused and that the accused had entered into the agreement with the complainant to take money from her fraudulently and committed an offence of cheating and criminal breach of trust by way of conspiracy amongst the accused themselves.

Annexure 'P5' at page 70 is the alleged agreement for sale executed between Smt.Ashima Ganguly wife of Dilip Ganguly as vendor and Sunita Agarwal daughter of Late Hariprasad Agarwal purchaser/second party. Smt. Ashima Ganguly the vendor of the sale agreement has been projected as accused no.1 in the petition of complaint. The accused no.1 is not the petitioner before this Court in respect of the application for quashing of the proceedings. From the recitals of the agreement, it appears that Smt. Ashima Ganguly is the absolute owner of the property as described in the schedule of the agreement. The recitals of the agreement disclose that the complainant agreed to purchase the said property at a consideration of Rs.20,00,000/- (Rupees Twenty Lakhs). It also appears that the purchaser had paid Rs.3,00,000/- (Rupees Three Lakhs) by way of an earnest money to the vendor/owner of the property and the balance consideration money was scheduled be paid on or before the execution of the deed of conveyance. From Clause 3 of the said agreement, it appears that in the premises in question there were 21 tenants. Clause 8 of the said agreement speaks about the purchase to be completed within six months and the time should be deemed to be the essence of contract. The agreement bears the signature of the vendors Smt. Ashima Ganguly and the complainant Smt. Sunita Agarwal. It was also signed by Sudipto Ganguly, son of Dilip Kumar Ganguly and Narendra Bhai Rupda son of Nagindar Rupda as witnesses. From the cause title of the application under Section 482 of the Code of Criminal Procedure, it appears that present petitioner no.2, the son of the vendor was one of the witnesses to the deed.

During the course of argument, the Learned Counsel appearing for the petitioners submits that the continuance of the proceedings pending against the petitioner would be an abuse of process of law. In support of his contention he has submitted that there was an agreement of sale in between the owner of the property and the complainant and failure on the part of the owner of the property to honour the agreement does not come within the purview of an offence under Section 420 or 406 of the Indian Penal Code. He has drawn the attention of the Court to the averments of the petition of complaint and submitted that from the petition of complaint, it appears that the vendor of the property did not execute the sale deed in favour of the complainant in terms of the said agreement in spite of repeated requests on the part of the complainant though the complainant had already made part payment towards the consideration price. The third contention of the Learned Counsel for the petitioner is that the petition of complaint does not disclose the ingredients of the alleged offences under Sections 420 or 406 of the Indian Penal Code. He has forcefully submitted that the agreement was entered into between the accused no.1 and the complainant. Other accused had no role to play so far as the agreement for sale is concerned. According to his contention the names of the other accused have been incorporated in the petition of complaint without any basis and in absence of specific allegation the other accused cannot be prosecuted for the alleged offences.

In support of his contention, the Learned Counsel for the petitioner has placed his reliance on various decisions. The decisions cited by him are as under:

1) Murali Lal Gupta Vs. Gopi Singh reported in (2005)13 Supreme Court Cases 699,

2) Ankur Gupta Vs. State of Uttar Pradesh and Anr. reported in 2017(4) RCR (Crl) 1024,

3) Ram Biraji Devi and Another Vs. Umesh Kumar Singh and Another reported in (2006) 6 Supreme Court Cases 669,

4) Neelu Chopra and Anr. Vs. Bharti reported in (2009)10 Supreme Court Cases 184.

While making his submissions in favour of quashing of the proceedings special emphasis has been given by the Learned Counsel for the petitioners on the decision of Murali Lal Gupta Vs. Gopi Singh reported in (2005)13 Supreme Court Cases 699 . He has submitted that if all the allegations made in the petition of complaint are taken to be correct, yet the case for prosecution of the petitioners for commission of the alleged offences under Sections 420 and 406 of the Indian Penal Code is not made out, so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the complainant parted with the money. He has further contended that the failure on the part of the vendor to honour the agreement cannot be termed as cheating. It is the specific contention on the part of the Learned Advocate for the petitioners that all the family members have been made accused in the present case to pressurize the vendor.

Another plea raised by the Learned Counsel for the petitioner is that the alleged dispute as contained in the petition of complaint comes within the purview of civil dispute and the remedy of the petitioner lies in the Civil Court for specific performance of contract. But in the instant case, with some ulterior motive, the complainant has started the present proceedings to create pressure on the vendor and his family members. From documents at pages 87 to 101 attached to the application for quashing, it appears that the vendor Ashima Ganguly had started a Title Suit being no.284 of 2015 in the Court of Learned Civil Judge, Junior Division, 3rd Court, Howrah, against the complainant, praying for declaration and injunction. It was alleged in the said plaint that the complainant that is vendor was ready and willing to execute the sale deed in favour of the complainant/defendant even after the stipulated period of six months but the defendant was to take the possession of the said property by paying the balance amount on February 21, 2015. The plaintiff/vendor had obtained an order of status quo regarding the nature and character of the suit property till March 21, 2015. That order was extended from time to time. From page 92 annexed to the application for quashing, it transpires that the said order of status quo was extended on July 14, 2015 till September 7, 2015.

Learned Counsel appearing for the complainant/opposite party has refuted the submissions made by the Learned Counsel for the petitioners and submitted that the petition of complaint clearly discloses the ingredients of the alleged offences under Sections 420/406 of the Indian Penal Code and the involvement of the accused persons in the commission of alleged offence. He has contended that if one goes through the entire petition of the complaint, it would appear to him that from the very inception the complainant was induced to part with the money on the basis of the false representation made by the accused persons and agreed to purchase the property. He has further submitted that the prayer for execution of the sale deed was extended from time to time on the requests of the accused, though the accused had accepted earnest money of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand) by giving the assurance to execute the sale deed in favour of the complainant. According to his contention, in order to ascertain whether the alleged acts would come within the purview of cheating or criminal breach of trust, the overall conduct of the accused should be considered by the Court. He has further submitted that in the petition of complaint, the complainant narrated the entire facts wherefrom, it can be easily presumed that the accused/petitioners had dishonest or fraudulent intention from the very inception of the agreement and they had obtained the money from the complainant on the pretext of sale. He has prayed for rejection of the application for quashing of the proceedings.

Learned Counsel has also cited the following decisions to fortify his contentions:-

1) Superwave Communication & Infra Solution Pvt. Ltd. and Anr. Vs. State of West Bengal and Anr. reported in (2019) Cri.L.J.4119:AIRONline 2019 Cal 262,

2) Ankur Gupta Vs. State of U.P. & Anr. reported in 2017(4) RCR (Crl)1024.

In the case at hand, there was an agreement of sale of a property at Howrah. The said agreement was entered into between the complainant and accused no.1, who is the wife of present petitioner no.1 and mother of rest of the petitioners. From the copy of the sale agreement which has been annexed to the application for quashing of the proceedings (Pages 70 i.e. annexure P-5), it appears that Rs.3,00,000/- (Rupees Three Lakhs) was paid as earnest money at the time of execution of the agreement for sale. From the recitals of the said agreement for sale as well as from the averments made in the petition of complaint, it further appears that Smt. Ashima Ganguly is the owner of the property in question. A lawful owner of the property has got the authority or right to sale the property either by himself or herself or through power of attorney. In the present case, as per the averments of the complaint there was direct agreement of sale between the owner and the complainant. It has been alleged by the complainant that the accused did not execute the deed of conveyance in spite of several requests and she had made requests on several occasions for extension of time to execute the deed of conveyance.

The materials on record reveal that petitioner nos.1,3 and 4 are neither witnesses nor parties to the agreement to sell. Only present petitioner no.2 was one of the witnesses to the said agreement to sell.

From the averments of the petition of complaint, it appears that the alleged requests to extend the time to execute the deed of conveyance were made by the vendor. The present petition of complaint is absolutely silent as to the role played by the present petitioners in the commission of alleged offences of cheating and criminal breach of trust. On a careful reading of the petition of complaint as a whole, it is apparent that the entire allegations have been levelled against the vendor of the complainant. The petition of complaint failed to disclose the particulars of offence committed by each accused and role played by them in committing that offence.

In this connection, Learned Counsel for the petitioners has contended that the criminal proceedings against the petitioners are based on false and frivolous allegation and are liable to be quashed.

In support of his contention, he has placed his reliance on the decision of Ankur Gupta Vs. State of Uttar Pradesh and Anr. reported in 2017(4) RCR (Crl), page 1024 and submitted that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. It is the specific contention of the Learned Counsel for the petitioner that the complainant initiated the criminal proceedings with an ulterior motive as reflected at paragraph 20 of the petition of complaint.

Paragraph 20 of the petition of complaint is hereby reproduced:

"The petitioner states that it is very difficult for petitioner to recover the money by her personal effort as such it is fit case to be investigated by police authority."

From the allegations made in the petition of complaint and the examination of the complainant and her witness under Section 200 of the Code of Criminal Procedure, it appears that pursuant to the agreement for sale, Rs.3,00,000/ was paid to the vendor of the property as earnest money. It has been alleged by the complainant that the vendor did not execute the deed of conveyance in her favour and she was cheated and the said amount was misappropriated.

A petition of complaint requires to be read as a whole not in a piece meal manner.

So far as the petitioner nos.1,3 and 4 are concerned, it appears that they are neither the parties to the agreement for sale nor witnesses of that agreement. There is absolutely no averment in the petition of complaint against the petitioner nos.1,3 and 4 as I have observed earlier. In my view continuance of proceedings against the petitioner nos.1,3 and 4 would be an abuse of the process of the Court. So far as petitioner no.2 is concerned, it appears that he was one of the witnesses to the agreement to sell and payment of earnest money as per the alleged agreement to sell took place in presence of him as one of the witnesses. As such, it cannot be said at this stage that continuance of prosecution against him would be a miscarriage of justice.

During the course of hearing a plea has been raised by the Learned Advocate for the petitioners that the prosecution against the petitioners could not be allowed to be continued as the Learned Magistrate had issued the process against the accused in violation of the provision of Section 202 of the Code of Criminal Procedure.

In support of his submission, he has argued that all the accused, against whom process was issued, reside outside the territorial jurisdiction of the Court of Learned Magistrate and the said order of issuance of process is liable to be quashed for non-compliance with the mandatory provision of Section 202 of the Code of Criminal Procedure. In support of his contention he has referred to the decision of S.S.Binu Vs. State of West Bengal reported in 2018(5) CHN (Cal) 562.

From the order dated 17.03.2015, passed by the Learned Magistrate, it transpires that the Learned Magistrate himself held an enquiry under Section 202(1) of the Code of Criminal Procedure. As such, the contention of the Learned Counsel for the petitioners that the Learned Magistrate failed to comply with the mandatory provision of Section 202 of the Code of Criminal Procedure has no basis at all and not tenable considering the facts and circumstances of the present case. The decision of S.S.Binu Vs. State of West Bengal (Supra) has no manner of application in the present case.

In view of the aforesaid discussions, the criminal proceedings being C.N.Case No.0010233 of 2015 under Sections 420/406/120B of the Indian Penal Code pending before the Court of the Learned Metropolitan Magistrate, 19th Court at Calcutta, in respect of petitioner nos.1,3 and 4 are hereby quashed.

Before parting with the case, I would like to clarify that the observations as made in this judgment should not be taken as an expression of any opinion regarding the merit of the criminal proceedings pending before the Learned Magistrate so far as the remaining accused viz. petitioner no.2 and accused no.1 are concerned.

Thus, the criminal Revisional Application being C.R.R.2608 of 2015 is allowed in part.

In view of the order passed in C.R.R.2608 of 2015, the CRAN application being No.2745 of 2018 stands dismissed.

Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.