Raja Ram Saraf @APPELLANT@Hash State of West Bengal

Asha Arora, J.

By an application under section 482 of the Code of Criminal Procedure, petitioners have approached this Court for quashing of the charge-sheet no. 4

dated 31/1/2017 and the subsequent proceedings arising out of Shakespeare Sarani P.S. Case No. 428 of 2014 dated 20/12/2014 under section

420/406/120B IPC being GR case No. 2814 of 2014 pending before the learned Metropolitan Magistrate 4th Court Calcutta.

The backdrop of the matter leading to the present application may be summarized as follows:

The opposite party no. 2 herein filed a petition of complaint under section 156(3) of the Code of Criminal Procedure before the Chief Metropolitan

Magistrate Calcutta alleging commission of offences punishable under section 420/406/120B IPC against the present petitioners which was sent to the

Officer-in-Charge of Shakespeare Sarani P.S. for treating the same as F.I.R. Pursuant thereto, Shakespeare Sarani P.S. case No. 428 of 2014 dated

20/12/2014 was registered for investigation which culminated in the submission of the impugned charge-sheet under section 406/420/120B IPC.

According to the petition of complaint, the accused nos. 2 and 3 (petitioners herein) are the partners of M/s Vinayak Mica Export Company, a

partnership firm being the accused no. 1. The aforesaid accused nos. 2 and 3 entered into a criminal conspiracy with each other to cheat the

complainant (the opposite party no. 2 herein) by inducing him to part with money on the basis of false and fraudulent representation that they are the

owners of the land in Giridih, Jharkhand and offered the same for sale to the complainant. The accused nos. 2 and 3 further represented that if for any

reason the agreement for sale is cancelled, the advance money paid by the complainant would be returned.

On the basis of such representation and believing the same to be true, the complainant agreed to purchase the said land and an agreement was

executed between the parties on 16/12/2010 for sale of the plot of land in Giridih. In terms of such agreement an amount of Rs. 1,50,00,000/- was paid

by the complainant to accused nos. 2 and 3. Subsequently the said agreement was orally cancelled by the parties. Once the said agreement was

cancelled, the complainant requested the accused nos. 2 and 3 to return the sum of Rs. 1,50,00,000/-. In order to create trust in the mind of the

complainant, the accused refunded a sum of Rs. 1,00,00,000/- by way of two cheques of Rs. 50,00,000/- each which were honoured on presentation.

It was represented by the accused nos. 2 and 3 that the remaining amount of Rs. 50,00,000/- would be returned at a later date in view of paucity of

fund.

Subsequently the accused nos. 2 and 3 issued a cheque dated 27/2/2012 drawn on Indian Overseas Bank which was dishonoured on presentation. The

accused nos. 2 and 3 requested the complainant not to take any action on the basis of the dishonoured cheque and handed them another cheque with a

request not to present the same and assured that the full amount would be repaid by demand draft with interest. However, no such demand draft was

given and upon repeated requests a fresh cheque drawn on HDFC Bank was issued in favour of the complainant. The accused, in order to win the

trust of the complainant presented a confirmation of account/balance mentioning the issuance of cheque no. 536178 dated 30/3/2013 amounting to Rs.

50,00,000/- for refund of the amount received earlier. When the said cheque was presented, it was dishonoured. The complainant then issued a notice

under section 138/141 of the Negotiable Instruments Act to the accused and initiated a proceeding thereunder which is pending before the

Metropolitan Magistrate 15th Court Calcutta.

Learned counsel for the petitioners argued that a civil suit on the same facts has been filed by the complainant but there is no pleading therein of any

dishonest intention. The aforesaid suit was filed on 31/3/2014 and the criminal case was initiated on 20/12/2014 but the factum of pendency of the civil

suit has been deliberately suppressed in the FIR. It is argued that the contents of the impugned petition of complaint are not in conformity with the

averments in the complaint under section 138/141 of the N.I. Act. It has also been canvassed that the petition of complaint does not disclose the

ingredients of the offences alleged. It is argued that there is no clause of cancellation in the agreement for sale nor is there any clause for refund of

advance money in case of cancellation of agreement for sale. The fact that the petitioners immediately refunded Rs. 1,00,00,000/-(One crore) to the

opposite party No. 2 and handed over a cheque of the balance amount of Rs. 50,00000/-(fifty lac) reveals that there was no dishonest intention from

the inception. Learned counsel for the petitioners pointed out that the Investigation Officer submitted a report on 6/4/2016, being Annexure P-8 of this

application wherein it is categorically stated that the matter is related to monetary transaction in respect of loan which appears to be civil in nature but

curiously enough, after nine months, on 31/1/2017 the impugned charge-sheet was submitted against the petitioner without any justification. It is argued

that the criminal proceeding against the petitioner is a weapon of harassment since the remedy of the complainant lies in the civil suit. To fortify his

submissions learned counsel for the petitioners placed reliance upon the following decisions:

State of Karnataka versus L. Muniswamy and others reported in 1977(2) Supreme Court Cases 699 paragraphs 7, 9 and 10.

Pepsi Foods Ltd. and another versus Special Judicial Magistrate and others reported in (1998)5 Supreme Court Cases 749 paragraphs 22 and 29.

Hridaya Ranjan Prasad Verma and others versus State of Bihar and another reported in (2000)4 Supreme Court Cases 168 paragraphs 13 to 16.

G. Sagar Suri and another versus State of U.P. and others reported in (2000)2 Supreme Court Cases 636 paragraphs 14 and 15.

Anil Mahajan versus Bhor Industries and another reported in (2005)10 Supreme Court Cases 228 paragraphs 6 and 10.

Indian Oil Corpn versus NEPC India Ltd. and others reported in (2006)6 Supreme Court Cases 736 paragraph 14.

B. Suresh Yadav versus Sharifa Bee and another reported in (2007)13 Supreme Court Cases 107 paragraphs 12, 13 and 14.

Bobbili Ramakrishna Raja Yadad and others versus State of Andhra Pradesh reported in (2016)3 Supreme Court Cases 309 paragraph 11.

Learned counsel for the petitioners argued that none of the case laws referred on behalf of the opposite party no. 2 are applicable to the present case

since each case depends on its own facts and a close similarity between one case and another is not enough. To buttress his submission in this regard,

reliance has been placed upon Sumtibai and others versus Paras Finance Co. Regd. Partnership Firm Beawer (Raj) Through Mankanwar (Smt) W/o

Parasmal Chordia(dead) and others reported in (2007)10 Surpeme Court Cases 82 paragraphs 10, 12 and 13. Reference has also been made to

Bharat Petroleum Corporation Ltd. and Another versus N.R. Vairamani and Another reported in (2004)8 Supreme Court Cases 579 paragraphs 9 to

12.

Leading this Court through the petition of complaint, learned counsel for the opposite party no. 2 countered that the complaint read as a whole makes

out a prima facie case for the offences alleged. While exercising jurisdiction under section 482 Cr.P.C. it is not for this Court to perform the functions

of a trial Judge. It is argued that where allegations give rise to civil claim and also make out an offence, merely because a civil suit has been filed does

not mean that a criminal complaint is not maintainable. As the nature and scope of a civil proceeding is different from a criminal proceeding, the mere

fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy has been availed is not a ground to quash the

criminal proceeding. The test is whether the allegations in the complaint disclose a criminal offence or not. It is submitted that a criminal proceeding

under section 406/420 IPC on the same set of facts is not barred due to pendency of a case under section 138 of the Negotiable Instruments Act. In

support of his submissions learned counsel for the opposite party no. 2 relied upon the following citations:

Amit Kapoor versus Ramesh Chander reported in (2012)9 Supreme Court Cases 460 paragraphs 27.2, 27.3, 27.8 to 27.11.

Indian Oil Corporation versus NEPC India Ltd and others reported in (2006)6 Supreme Court Cases 736 Paragraph 12(V).

Iqbal Singh Marwah versus Meenakshi Marwah reported in (2005)4 Supreme Court Cases 370 paragraph 32.

Vitoori Pradip Kumar versus Kaisula Dharmaiah reported in (2002)9 Supreme Court Cases 581 paragraph 2.

Kamlesh Kumari versus State of Uttar Pradesh reported in (2015)13 Supreme Court Cases 689 paragrpahs 3, 5 to 8 and 11.

Sangeetaben Mahendrabhai Patel versus State of Gujarat reported in (2012)7 Supreme Court Cases 621 paragraphs 37 to 39.

State of Madhya Pradesh versus Awadh Kishore Gupta and others reported in (2004)1 Supreme Court Cases 691 paragraph 13.

State of Karnataka versus M.Devendrappa and Another reported in (2002)3 Supreme Court Cases 89 paragraph 9.

State of Orissa and another versus Saroj Kumar Sahoo reported in (2005)13 Supreme Court Cases 540 paragraphs 10 and 11.

Rainbow Marketing and Exports versus State of West Bengal and another in 2018 SCC Online (Cal) 6201 paragraph 8.

Learned counsel appearing for the State/opposite party No. 1 strenuously argued that though initially the petitioners refunded rupees one crore to instil

confidence in the opposite party No. 2, it was their dishonest intention not to pay the balance amount as is evident from the contents of the FIR which

disclose a prima facie case against the petitioners. Bearing in mind the parameters laid down by the Supreme Court for exercising the power under

section 482 Cr.P.C. I have perused the FIR, charge-sheet and the materials in the Case Diary. Upon perusing the aforesaid it cannot be said that the

uncontroverted allegations made in the FIR and the evidence collected in support thereof do not disclose the commission of any offence against the

petitioners/accused. In Vitoori’s case (supra) it has been held by the Supreme Court that pendency of a civil suit in respect of the matter

concerned would not be a bar to resort to criminal proceedings and the High Court was not justified to quash the criminal proceedings merely on the

ground of pendency of a civil suit for specific performance of contract.

At this juncture it is pertinent to mention that non-disclosure of pendency of the said cases in the FIR certainly does not amount to material

suppression as the learned counsel for the petitioners sought to impress. In the FIR of this case all the relevant facts and essential details have been

stated. A criminal proceeding cannot be quashed merely on the ground of non-mentioning of other pending proceedings between the parties. The test

is whether the allegations in the complaint disclose a prima facie case for the offence alleged. It is not necessary that the complainant should verbatim

reproduce in the body of the complaint all the ingredients of the offence he is alleging. In the present case, from the FIR and the materials available it

is evident that the necessary factual foundation has been laid for the offence alleged. On the point of pendency of a criminal complaint under Section

138 of the Negotiable Instruments

Act on the same facts, in Sangeetaben’s case (supra) it has been held that there may be some overlapping of facts in both the cases but the

ingredients of the offences are entirely different. Thus the subsequent case is not barred by any of the aforesaid statutory provisions. In G. Sagar

Suri’s case (supra) it was held that the criminal proceeding under section 406/420 IPC was liable to be quashed in view of the omnibus statement

of misrepresentation and absence of details as to how the complainant was duped. The said case relied upon by the learned counsel for the petitioner

is clearly distinguishable on facts from the case at hand. L. Muniswamy’s case (supra) is also not applicable for the simple reason that in the

aforesaid case it was found that the material on which the prosecution proposes to rely against the respondents is wholly inadequate to sustain the

charge that they are in any manner connected with the offence alleged. The case of Pepsi Foods and Hridaya Ranjan (supra) are also not apposite for

the purpose of the present case. Anil Mahajan’s case (supra) and Indian Oil Corpn (supra) have no manner of application to the case at hand. In

the aforesaid cases, having regard to the substance of the complaint it was held that the incident pertained to a civil case of breach of contract and not

a criminal case of the offence of cheating. B. Suresh Yadav’s case and Bobbili’s case (supra) are clearly distinguishable on facts. There is no

merit in the argument that contrary stand was taken by the opposite party no. 2 in the different proceedings.

For the reasons aforestated, the application being CRR 2187 of 2017 is devoid of merit and is accordingly dismissed. No order as to cost. It is made

clear that no opinion has been expressed by this Court on the merits of the case and the trial court will decide the matter in accordance with law

without being influenced by any observation made hereinabove. Urgent Photostat certified copy of this order if applied for, be given to the applicant

upon compliance of requisite formalities.