Pranab Kumar Ray & Another vs Shri Amal Kumar Dutta

Sankar Acharyya, J.—Two petitioners being husband and wife have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against the opposite party with prayer for quashing of the proceeding being Case No. C/10853 of 2013 under Section 406/420/120B of the Indian Penal Code (in short I.P.C.) and all orders including order dated 20.05.2013 passed by learned 14th Metropolitan Magistrate, Calcutta, now pending before the learned 18th Metropolitan Magistrate, Calcutta. Petitioners have been living in United States of America at present. The opposite party is co-brother of the petitioner no. 1. Therefore, the petitioners and opposite party are relatives to each other. The petitioners purchased a flat at 48 A, Indian Mirror Street, Flat No. 2B, Police Station Taltala, Kolkata- 700013 in the year 2004 and that is their only residence in India. For maintaining that property and completing of the registration of purchase of that property by the petitioners, the opposite party was entrusted by petitioner no. 1 giving power of attorney in March 2005 as the petitioners reside permanently in United States of America. In the application petitioners have claimed that they made several payments to the opposite party between March 2005 to January 2011 but due to negligence of opposite party registration of that flat was not completed. Under such circumstances, on 24.01.2013 the petitioners revoked the power of attorney made in favour of opposite party and made fresh power of attorney in favour of one Sanat Kumar Roy to look after the said property.

After such revocation of the power of attorney the opposite party lodged a complaint against the petitioners in the Court of learned Chief Metropolitan Magistrate, Calcutta under Sections 406/420/120 B of the I.P.C. As per allegations of said complaint, the present petitioners who are accused in the complaint case intended to sell out their flat at 48 A, Indian Mirror Street. Opposite party got the information through website advertisement in ''Acre 99''. The opposite party agreed to purchase that property accepting the offer of the petitioners at a price of Rs.33,00,000/- and also to purchase the furniture and fixtures and electrical fittings of that flat at a further sum of Rs.2,00,000/-. On approach of the petitioners to meet up their some outstanding amounts to various persons the opposite party made payment of Rs.10,80,000/- to different persons and he also paid Municipal taxes and maintenance charges of Rs.17,331/- expecting that the said amount would be adjusted at the time of execution of sale deed in respect of that flat in favour of opposite party. Petitioners did not execute the deed of sale in favour of the opposite party and under their instruction the opposite party was prevented to enter into their flat. On repeated request of the opposite party, the petitioner no. 1 gave assurance and undertakings to make the payment but hatching a criminal conspiracy both the petitioners denied to make any payment to the opposite party. The opposite party entrusted the petitioners making payment of huge amount of money for their selling the said flat to the opposite party. Since inception with intention of cheating the opposite party made glossy representations to the opposite party and allured him to part with and/or delivery of the valued property (money) and thereby cheated the opposite party and committed criminal breach of trust entering into a criminal conspiracy between petitioner no. 1 and petitioner no. 2. On the said petition of complaint learned Chief Metropolitan Magistrate, Calcutta took cognizance and transferred the case to learned 14th Metropolitan Magistrate, Calcutta. On 20.05.2013 the opposite party as complainant was examined on S.A. On oath the opposite party as complainant narrated the case made out in the complaint. Thereafter, learned 14th Metropolitan Magistrate, Calcutta issued summons upon the petitioners as accused.

In this application petitioners have challenged the said issuance of summons and they have claimed that no case under Section 406/420 of the I.P.C. or under Section 120 B of the I.P.C. could be made out against the present petitioners from the very face value of the proceeding. According to them, the proceeding is liable to be quashed. They have claimed that according to the allegations made in the case of the complaint part transaction was made in the year 2011-2012 as alleged and the complaint was filed on 01.04.2013 which is not maintainable at such distance of time. The petitioners have alleged that in order to grab the flat of the petitioners the opposite party retained valuable documents of the property in his custody and on being asked by petitioners to return the same the opposite party filed the complaint against the petitioners. Being a near relation the petitioners permitted the opposite party to stay in the flat in question but taking advantage of that, petitioners have been ousted from their property by the opposite party by locking the premises. In order to restrain the petitioners and their agents the opposite party filed one after another application under Section 144 of the Cr.P.C. before the learned 10th Metropolitan Magistrate, Calcutta. The petitioners were never interested to sell out their flat to the opposite party and they never entered into any agreement for such sale. Petitioners have stated that the opposite party never paid a single penny to them in pursuant to alleged agreement for sale of the flat. Petitioners have specifically stated in paragraph 32 that as being co-brother the petitioners and the opposite party made financial transaction with each other for helping them out and some amount was given to the petitioners as loan but the non-payment of such loan amount does not make out any offence under Sections 420/406/120 B of the Indian Penal Code. Alleging the aforesaid facts the petitioners have prayed for quashing of the proceedings in Case No. 10853 of 2013.

At first, the point of taking cognizance on delayed complaint as raised by petitioners is taken up. In the complaint the opposite party alleged that he made payments to different persons entrusting upon the petitioners from 01.12.2011 on different dates. The complaint was filed in court on 01.06.2013. Alleged offence is punishable with imprisonment which may extend to seven years with fine. Limitation of taking cognizance of such offence is not prescribed in Section 468, Cr.P.C. but obviously the limitation is not less than three years. In my opinion, taking of cognizance by learned Chief Metropolitan Magistrate is not bad on the count of limitation.

Learned senior counsel for the petitioners referred to paragraphs 5, 6, 7 and 10 of the copy of complaint annexed to the application under Section 482, Cr.P.C. and advanced arguments that the case made out by opposite party in his complaint does not constitute the offence punishable under Sections 120 B/406/420, I.P.C. and at best the said allegations made in the complaint might have been a cause of action in a civil suit for specific performance of contract. According to him the basic ingredients of Sections 120 B/ 406/420, I.P.C. have not been fulfilled. Mr. Bhattacharyya advanced his arguments that admittedly the flat in question belongs to the petitioners and there was no claim of opposite party that even a single penny was received by petitioners from the opposite party in pursuant to any agreement for sale of the flat. It was urged that no criminal intention of the petitioners since inception of alleged transactions for cheating the opposite party is prima facie established and no case of criminal conspiracy or criminal breach of trust is made out in the complaint for taking cognizance. Therefore, the taking of cognizance is bad in law and the proceedings against the petitioners in the Court of learned Metropolitan Magistrate is liable to be quashed. In support of his arguments Mr. Bhattacharyya relied on two judgments of Hon''ble Supreme Court in the cases of G. Sagar Suri and Another v. State of U.P. and others reported in AIR 2000 (SC) 754 and another case State of Haryana and Others v. Ch. Bhajan Lal and Others reported in AIR 1992 (SC) 604. He also relied upon a judgment dated 21.11.2013 in CRR 982 of 2013 passed by Hon''ble Single Judge of this High Court.

On behalf of the opposite party learned counsel Mr. Sen submitted that it is settled legal position that in appropriate case civil as well as criminal proceedings is maintainable and it is not the law that if remedy is available in civil court on a cause of action no criminal proceeding is tenable even though a commission of penal offence is found in the face value of such cause of action. He advanced his arguments that parties to the transactions are related each other and out of such relation oral agreement between the parties for sale of immovable property took place. He further submitted that while the petitioners were in U.S.A. he sent e-mails with instruction to opposite party for payment to the creditors of petitioners and in compliance thereof the opposite party on good faith made payment of huge amount as part payment of consideration money for the flat of petitioners. Mr. Sen claimed that the petitioner had intention to cheat the opposite party since inception and to fulfil their intention of cheating they dishonestly received money from opposite party through others taking advantage of his trust upon the petitioners intentionally inducing the opposite party for making payments. According to him, the face value of the complaint sufficiently constitutes the commission of offences punishable under Sections 120 B/406/420 of the Indian Penal Code in terms of the provisions under Sections 405/415 of that Code. My attention was drawn to the application of petitioners. In paragraph � 32 the petitioners have stated, "your petitioners state that as being co-brother the petitioners and the opposite party made financial transaction with each other for helping them out and some amount was given to the petitioners as loan but the non-payment of such loan amount does not make out an offence under Section 420/406/120B". In paragraph- 15 of the application the petitioners stated, "your petitioners state that in the complaint there is no dispute that the possession of the property was given to another person/intending purchaser under another agreement which has been signed by the petitioner" although in paragraph- 28 it has been stated, "your petitioners state that they never interested to sell out their flat in any point of time whatsoever to the opposite party and as such the petitioners never entered into an agreement with the complainant or any other person to sell out their property".

Moot question in this case is whether the face value of the complaint of opposite party against the petitioners constitutes any offence for taking cognizance by learned Chief Metropolitan Magistrate, Calcutta. It is also to be considered whether the petitioners had fraudulent or dishonest intention right at the beginning of the transactions between the parties.

In the case of G. Sagar Suri and Another v. State of U.P. and Others (Supra) the Hon''ble Supreme Court held, "Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice".

In the case of State of Haryana and Others v. Ch. Bhajan Lal and Others (Supra) Hon''ble Supreme Court enumerated certain categories of cases, by way of illustrations, wherein the extraordinary power of High Court under Article 226 of the Constitution of India or the inherent power under Section 482, Cr.P.C. can be exercised either to prevent abuse of process of any court or otherwise to secure the ends of justice. Such categories are :�

"1. 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.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the F.I.R. do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institutions and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".

This application relates to a case on complaint filed before the learned Chief Metropolitan Magistrate, Calcutta.

Undisputedly, the parties are related each other and there is no written agreement between the parties. Even in the absence of any written agreement there was financial transaction between them out of unwritten amicable understanding. Though any amount has not been mentioned in paragraph-32 of the application the petitioners have admitted that opposite party gave some amount to the petitioners but they have claimed it as their loan. There is no claim of petitioners that even after filing of the complaint they repaid any amount of loan to the opposite party. From the face value of the complaint prima facie case of the opposite party as appears is that he came to learn from one Mr. Rajeev Nahar and an website advertisement that petitioners intended to sell their flat at 48 A, Indian Mirror Street, Kolkata � 700013 and thereafter, accepting the price offered by petitioners the opposite party agreed to purchase that property and the opposite party made payments of Rs.10,97,331/- in total under instructions of petitioners time to time out of the total agreed price of Rs.35,00,000/- for the flat including furniture and fixtures with electrical fittings. On repeated demands of the opposite party the petitioners made conciliatory statements and subsequently the petitioner no. 1 gave assurance but failed to make payment or registration of document and ultimately the petitioners denied payment of the entrusted amount and the registration of sale deed.

In my view, prima facie the conduct of the petitioners is reflected in their giving instruction to opposite party for making payment of about eleven lakh rupees without executing any written document in favour of opposite party either as earnest money for selling immovable property as claimed by opposite party or as loan as claimed by petitioners. Their conduct is also reflected prima facie on their non-payment of any amount to opposite party even after filing of the complaint against them. In their application the averments made in paragraphs 28 and 15, prima facie disclose their mind as per the contradictory statements mentioned above in this judgment. According to the face value of the complaint of the opposite party as well as the application under Section 482 of the Cr.P.C. filed by petitioners there is a dispute between the parties in connection with financial transactions of which redress might have been sought for in a civil court. But according to the facts alleged in the complaint and attending circumstances as discussed earlier it cannot be said that the opposite party filed the complaint as a short cut method of getting redress which ought to have been availed in a civil court giving a cloak of criminal offence. In my opinion, if the face value of complaint be accepted in its entirety it makes out a prima facie case that out of kinship between the parties on good faith opposite party entrusted the petitioners making payment of Rs.10,97,331/- on different occasion under instruction of petitioners as part of consideration money for his purchase of a flat of petitioners without insisting for written agreement and the petitioners accepted such payments without executing any document. From the application of the petitioners it can be said that since inception they did not intend to sell their flat to opposite party although they accepted payment of money by opposite party without executing any document for such payments. The totality of such facts and circumstances does not speak about mere breach of contract but it prima facie speaks about dishonest intention of the petitioners in order to cheat the opposite party committing an offence of criminal breach of trust also as alleged.

Having considered all the above aspects including the legal position, I find no error in taking cognizance of the offences by learned Chief Metropolitan Magistrate on the complaint of opposite party under Section 190, Cr.P.C. and thereafter in issuing process under Section 204, Cr.P.C. by learned 14th Metropolitan Magistrate against the petitioners after examining the complainant/opposite party on solemn affirmation under Section 200, Cr.P.C. Therefore, I find and hold that this is not a fit case for quashing of the criminal proceeding in case No. C. 10853 of 2013 now pending in the court of 18th Metropolitan Magistrate, Calcutta.

This application under Section 482, Cr.P.C. is dismissed on contest but without any order as to costs.

Interim order, if any, stands vacated.

Urgent Photostat certified copy of this judgment, if applied for, be given expeditiously to the parties or their advocates in compliance of usual formalities.