Samir Das vs The State of West Bengal

Ashim Kumar Roy, J.—The petitioner, who has been arraigned as an accused in connection with a case relating to the offences punishable under sections 406/ 420/ 120B IPC, has approached this court for quashing of the FIR.

It is contended by the learned counsel for the petitioner that the allegations made in the petition of complaint, on its face value and without disputing its correctness, no offence can said to be made out, for which the impugned FIR has been registered.

It is further contended that the dispute is absolutely civil in nature and the allegations are false and motivatedly made to give a civil dispute a cloak of criminal case. He pointed out that in the petition of complaint, it has been categorically alleged that on the day of the occurrence an amount of Rs. 1.5 crores were obtained from the petitioner by showing the original title deed, although at that time the said title deed was lying mortgaged with a nationalized bank and the allegations are absolutely false. He lastly contended that this a case of clear malafide and, accordingly, the impugned FIR ought to be quashed.

Heard the learned counsel for the petitioner. Considered his submission.

No criminal case can be quashed accepting the contentions of any accused person that the allegations are false. Which version of the case is true whether that is the version of the complainant or that of the accused is a matter, which can only be decided on evidence at the trial and that is the function of the trial court and High Court sitting in its revisional jurisdiction, is not supposed to deal with the same.

Time and again the Hon''ble Apex Court in its authoritative pronouncements has observed that the malafide is a pure question of fact and can only be gone into during the trial and when the police is in the midst of investigation, the malafide on the part of the complainant cannot be an issue.

In this regard, a Three Judges'' Bench of the Hon''ble Apex Court in the case of State of Karnataka Vs. M. Devendrappa and Another, as well as the decision of the Hon''ble Apex Court in the case of State of Bihar v. J.S.C. Saldana, reported in 1980 SCC (Crl) 272, which can very well be taken into consideration.

At the same time, it is well settled that annexure to the petition cannot be taken into consideration to decide a question of quashing. In this regard, the decision of the Hon''ble Apex Court in the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, may very well be referred.

Furthermore, a Five Judges Bench of the Hon''ble Apex Court in the case of Asstt. Collector of Customs v. LR Mulani, reported in AIR 1970 SCC 962 held at the stage of framing of charge, the defence of the accused cannot be accepted and the acceptance of the contentions of the accused means permitting him to adduce evidence before the trial commences.

In this case, the grounds on which the quashing has been sought for are essentially the defence of the accused and based on disputed question of fact and if the contention of the accused is accepted, there would be a mini trial before trial, which is equally not permissible under the law of the land.

Now, coming to the question whether the allegations made in the FIR have disclosed commission of offence or not, this court is of the opinion that it would be enough to refer the allegations made in paragraphs 5, 6 and 7 of the complaint. The same are quoted below:-

"5. That in the first week of July, 2012 the accused No. 4 S.D. Mohatta with his son accused No. 3 Sandeep Mohatta and accused No. 1 Samir Kumar Das with accused No. 2 Deepak came to the office of the complainant at 9, Lalbazar Street, Kolkata 700 001, P.S. Hare Street with a proposal to sale the property of the accused No. 1 at Jadavpur mentioned above with the original title deed of the premises No. 80, Briji Purbapara, Kolkata 700 084 and the complainant''s director Sri Gopal Kumar Sanei satisfied with the said deed visited the said premises within 6 days and after prolong negotiation and relying the version of the accused No. 1 and other accused persons 2 and 3 the complaint agreed to purchase the said property at a total consideration of Rs. 1,60,00,000/- (Rupees one crore sixty lakh) only.

That as per request of the accused No. 1 the complaint made advance payment of Rs .1,50,00,000/- (Rupees one crore fifty lakh) only by entering to an agreement for sale on 19th July, 2012 the complainant paid the said advance amount of Rs. 50,00,000/- + Rs. 50,00,000/- + Rs. 35,00,000/- + Rs. 15,00,000/- totaling to an amount of Rs. 1,50,00,000/- (Rupees one crore fifty lakh) only by RTGS on 18.07.2012 and 19.07.2012 through State Bank of Hyderabad, Park Street, Branch, Kolkata and the accused No. 1 agreed that he will execute and register deed of conveyance within 15 months in terms of the said agreement dated 19.07.2012 and hand over the original title deed of the said property to the Director of the complainant as security and the balance of Rs. 10,00,000/- (Rupees ten lakh) will received at the time of registration of the sale deed.

That on 19.08.2013 letter of the accused No. 4, S.D. Mahatta the complainant come to know that the accused No. 1 Samir Kumar Das before entering the agreement of the said property for sale the accused No. 1 took loan from State Bank of India, India Exchange Place Extension Branch, Kolkata by mortgaging the said property, the accused No. 1 some how managed the Bank Officer to withdraw the original title deed from the Bank."

Having regard to the above, it can hardly be said that no offence is made out. This application has no merit and, accordingly, stands dismissed and disposed of.

The office is directed to communicate this order to the opposite party No. 2 at his address mentioned in the cause title, de facto complainant of the case.

Photostat certified copy of this order, if applied for, be given to the parties at an early date.