Rajeeb Kothari vs State Of West Bengal & Anr.

Md. Mumtaz Khan, J.

This is an application under Section 482 of the Code of Criminal Procedure filed by the petitioner/accused persons praying for quashing of the

proceeding of G.R. Case No. 634 of 2001 pending before the learned Metropolitan Magistrate, 4th Court, Calcutta arising out of Amherst Street

Police Station Case No. 78 of 2001 dated April 7, 2001 under Section 420/120B of the Indian Penal Code. The complainant/opposite party No. 2

lodged a written complaint at the Amherst Street P.S. alleging that this petitioner along with his brother and father hatching a conspiracy persuaded

him and his mother to invest money for purchasing shares with assurance of good return but thereafter neither returned back the money nor the

shares and even closed their office and thereby cheated him and his mother to the tune of Rs. 1,17,000/-. After registering the case investigation

ensued and thereafter on completion of investigation charge sheet was submitted against the petitioner, his brother and father for the commission of

the offence punishable under Section 120B/420/406 of the Indian Penal Code. On February 24, 2011 charge was framed against the petitioner, his

brother and father under Section 420/120B of the Indian Penal Code and trial commenced. Three witnesses have already been examined by the

prosecution including the complainant.

It was submitted by the learned advocate for the petitioner that the dispute between the parties is purely of civil in nature on account of failure to fulfill

the promise and the petition of complaint does not disclose any ingredients of offence of cheating. He further submitted that the matter has been

amicably settled between the parties and the entire money has been paid to the complainant which the complainant has himself admitted in course of

his examination before court that he has no grievance against the petitioner. He also drawn this court's attention to one agreement reportedly entered

into between the complainant and the accused persons. According to learned advocate for the petitioner, now the complainant inspite of receiving

the money and entering into an agreement of settlement failed to turn of before this court inspite of service of notice which clearly indicates that the

complainant has now no grievance against the accused persons and accordingly in view of such settlement between the parties the instant criminal

proceeding is liable to be quashed.

He relied upon the decision in the matter of Ruchi Agarwal Vs. Amit Kumar Agarwal and Ors. reported in (2005) 3 Supreme Court Cases 299 in

support of his submission. Learned advocate appearing for the state submitted that materials in the case diary clearly shows the ingredients the

offence of cheating committed by the accused persons including this petitioner. According to learned advocate for the State, charge on the basis of

the material in the case diary has already been framed against the accused persons including this petitioner for the commission of the offence under

Section 420/120B of the Indian Penal Code and the trial has commenced. He further submitted that no such petition of compromise arrived at

between the petitioner and the complainant is before this court and in view of the above the reported settlement between the complainant and the

accused persons cannot be taken into account. According to him all these are question of facts which cannot be decided in the instant

proceeding. He, therefore, prays for dismissal of the revisional application.

I have considered the submissions advanced by the learned advocates appearing for the respective parties and gone through the documents annexed

with the instant revision including the FIR, charge sheet etc. The petition of complaint filed by the complainant/opposite party no.2 contains the

allegation of cheating. It has been specifically alleged therein that this petitioner along with his brother and father hatching a conspiracy persuaded

the complainant and his mother to invest money for purchasing shares with assurance of good return but thereafter neither returned back the money

nor shares and even closed their office and thereby cheated the complainant and his mother to the tune of Rs. 1,17,000/-. So, the allegation of

criminality is present in the complaint. It was lodged at the P.S. in the year 2001 which ended in charge sheet in the month of February 2003.Â

Thereafter, charge for the commission of offence under Section 420/120B of the Indian penal Code was framed on February 24, 2011 and trial

commenced. In between three witnesses have already been examined by the prosecution. It was only in the year 2015 the instant application for

quashing of the proceeding was filed by the petitioner taking the plea of long pendency of the case and amicable settlement of the dispute between the

parties. It is true that before the court below complainant has deposed that he has got back his money and compromised with the accused

persons and has no grievance against them but the copy of agreement in question does not disclose this petitioner a party to the reported

settlement.Â

There is no denying fact that the offence under Section 420 of the Indian Penal Code can be compounded with the person cheated but it can be

compounded only with the permission of the court as per provisions of Section 320(2) of the Code of Criminal Procedure. In the case in hand the

persons cheated are not only the complainant but also his mother. Mother of the complainant is also a witnesses in the charge sheet and she is yet to

be examined. There is no whisper in the evidence of the complainant nor even in the agreement in question that mother of the complainant has at all

compromised with this petitioner and others. She is not even a party to the reported compromise nor the same bears her any signature. Under the

circumstances it can not be said that the offence has been compounded between this petitioner with the persons cheated. Moreover, these are the

questions of facts which can not be decided in the instant proceeding.

Having considered the entire facts and circumstances of the case and submissions of the parties and the materials emanating from the FIR and the

charge sheet this is not the fit case to quash the instant proceeding. The decision cited by the petitioner in the matter of Ruchi Agarwal (supra) do not

help the petitioner in the facts and circumstances of the case. Â In the result the instant criminal revision is dismissed. No order as to cost. The interim

order of stay, if any, stands vacated. However, considering the long pendency of the case learned trial judge is requested to expedite the trial of the

case and dispose the same at the earliest without granting any unnecessary adjournment to either of the parties. A Copy of this order be

communicated to the learned court below for information and necessary action. Urgent photostat certified copy of this judgement, if applied for, be

given to the parties expeditiously upon compliance with the necessary formalities in this regard.