Saswati Mehoratra vs State of West Bengal

Ranjan Kumar Masumdar, J.—The instant Criminal revisional application u/s 482 of the Code of Criminal Procedure is directed against the order dated April 17, 1999, passed by learned Additional Chief Judicial Magistrate, Alipore, in complaint case No. T.R. 39/99 of his Court. By this application, the Petitioner has not only challenged the order dated April 17, 1999, but also the entire Criminal proceeding arising out of T.R. 39/99.

The case of the Petitioner was in brief that on or about May 18, 1999, the Petitioner received summons from the Court of learned Additional Chief Judicial Magistrate, Alipore together with a copy of the petition of complaint filed by O.P. No. 2 of this case alleging that the Petitioner committed an offence of cheating as. punishable u/s 420 Indian Penal Code. In the said petition of complaint the O.P. No. 2 of this case alleged as a complainant that the Petitioner of this case wanted to sell one ground floor unit at Crescent Tower (ground floor) located at 229, A.J.C. Bose Road, Calcutta pretending herself to be the owner of the said unit. Since the said O.P. No. 2 was eager to purchase the said unit, she paid a booking amount of Rs. 50,000.00 by cheque to the Petitioner as demanded. It has also been alleged that after getting the said cheque, the Petitioner disclosed for the first time to O.P. No. 2 that the said flat actually belonged to M/s. Gallaxy Business Private Limited. At that time, O.P. No. 2 expressed her reluctance to proceed in the matter but the Petitioner assured the O.P. No. 2 that she would take all steps to transfer the said flat from M/s. Gallaxy Business Private Limited to O.P. No. 2. Opposite Party No. 2 believed in such an assurance. Subsequently, due to nonavilabiiity of Bankloan, O.P. No. 2 found it difficult to purchase the said flat and hence M/s. Papai Travels and Tours Private Limited of which O.P. No. 2 was a Managing Director, purchased the said flat at a consideration of Rs. 24,50,000.00 lakhs from M/s. Gallaxy Business Private Limited. At the time of execution and registration of the deed of sale, the Petitioner promised to refund the sum of Rs. 50,000.00 lakhs as paid by O.P. No. 2 to the Petitioner towards booking amount but despite several requests by O.P. No. 2, the Petitioner did not refund the said money to O.P. No. 2. Subsequently when O.P. No. 2 made enquiries in the matter; M/s. Gallaxy Business Private Limited informed her that they did not receive the booking amount of Rs. 50,000.00 in the name of O.P. No. 2 from the Petitioner. Thus O.P. No. 2 has been deceived by the Petitioner to the tune of Rs. 50,000.00 which O.P. No. 2 paid to the Petitioner in good faith and thus the Petitioner committed an offence of cheating as punishable u/s 420 Indian Penal Code. According to the Petitioner the said complaint as lodged by O.P. No. 2 in Alipore Court against her was a mala fide one and was for co-lateral purpose and hence was liable to be quashed.

The specific case of the Petitioner was that O.P. No. 2 approached the Petitioner for purchasing the flat in question and it was agreed by and between the parties that the Petitioner would assign her right, title and interest in the said flat in favour of O.P. No. 2 and the said O.P. No. 2 would pay an assignment charge of Rs. 3,50,000.00 lakhs to the Petitioner and that a sum of Rs. 24,50,000.00 lakhs would be paid to M/s. Gallaxy Business Private Limited as consideration for the said flat. The further case of the Petitioner was that in terms of the said agreement, O.P. No. 2 duly paid to the Petitioner a sum of Rs. 3,50,000.00 lakhs. It was also the case of the Petitioner that on July 17, 1998, the said flat was duly conveyed by M/s. Gallaxy Business Private Limited by a registered deed in favour of Papai Travels and Tours Private Limited of which O.P. No. 2 and her husband were directors. The Petitioner Was a confirming party to the said transaction. Again according to the Petitioner, O.P. No. 2 served a notice dated November 21, 1998, on the Petitioner demanding refund of the sum of Rs. 50,000.00 and the Petitioner duly replied to the said letter on December 18, 1998. Thus according to the Petitioner there was no merit in the present proceeding in as much as it was initiated mala fide and for co-lateral purpose. According to the. Petitioner, she never deceived O.P. No. 2 to the tune of Rs. 50,000.00. Hence the present revisional application was liable to be quashed including the order passed by learned A.C.J.M. on April 17, 1999,

I have had the opportunity of hearing learned Counsels for all the parties at length.

The only question requiring consideration in this case was whether the Criminal proceeding initiated by O.P. No. 2, viz., T.R. No. 39/99, now pending before the learned Additional Chief Judicial Magistrate, Alipore should be quashed or not.

At the time of hearing, learned Counsels for all the parties to this case dealt elaborately with the crucial question of the powers of the High Court to quash F.I.R. or complaint under s, 482 of the Code of Criminal Procedure and referred to various decisions of the Apex Court as mentioned below; (i) Rajesh Bajaj v. State and Ors. 1999 Crl. L.J. 1833 (ii) Pepsi Foods Ltd. v. Special Judicial Magistrate and Ors. 1998 S.C.C. 749 (iii) Mustaq Ahmed v. Md. Habibur Rahaman Faizi and Ors. 1996 Crl. L.J. 1877 (iv) State of Uttar Pradesh v. O.P. Sharma 1996 Crl. L.J. 1878 (v) State of Haryana and others Vs. Ch. Bhajan Lal and others, (vi) Dhanalakshmi Vs. R. Prasanna Kumar and Others, (vii) Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, (viii) Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others,

the ratio and principles of law laid down by the Hon''ble Supreme Court in the aforesaid cases must, therefore, be borne in mind while dealing with the instant revisional case.

It is now well settled that the High Court is invested with plenary powers to quash Criminal Proceedings pending before any sub-ordinate Court, where it appears that the allegations incorporated in the F.I.R. or petition of complaint, even when they are taken on their face value and accepted in their entirety do not constitute a cognizable offence. It is again well settled that while exercising the discretionary powers to quash a Criminal Proceeding pending before a sub-ordinate Court, the High Court shall not embark on an enquiry as to whether the evidence or allegations are reliable or not. In other words, while exercising power u/s 482 Code of Criminal Procedure the High Court is not required to probe into any question as to whether the materials or allegations constituting the offence were trustworthy or not at the very initial stage of investigation. It is again not necessary that a complainant should reproduce in the body of the complaint all the ingredients of an offence verbatim. Again, it is well settled that when the petition of complaint and its annexed documents made out a prima facie case, the High Court cannot enter into a debatable area as to which of the two versions of the parties is true. It is again not necessary to make a meticulous study of a case before trial to find out whether the said case would end in conviction or acquittal. It is again well settled that the inherent power to quash a Criminal Proceeding should be exercised very sparingly and in the rarest of rare cases to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Such power cannot be exercised to stiffle a legitimate prosecution. But where the F.I.R. or the petition of complaint does not disclose any offende or is otherwise frivolous, vexatious or oppressive, it is open to the High Court to interfere u/s 482 of the Code of Criminal Procedure and to quash a Criminal proceeding pending before a subordinate Court.

While making submissions before this Court, learned Counsel for the Petitioner vehemently submitted that the instant case was never a case of cheating as defined in Section 415 Indian Penal Code in as much as it was never the intention of his client to deceive O.P. No. 2 to the tune of Rs. 50,000.00 paid by O.P. No. 2 to his client. In that connection it was submitted by him that as per agreement entered into by and between the parties, O.P. No. 2 was required to pay a sum of Rs. 3,50,000.00 lakhs towards assignment charges for transfer of the flat in question from M/s. Gallaxy Business Private Limited to O.P. No. 2 through the Petitioner. Accordingly, when the said sum of Rs. 3,50,000.00 lakhs was paid, the same was adjusted towards assignment charges vide letter August 19, 1998, issued by Essem Consultants, a concern of the Petitioner to M/s. Papai Travels and Tours Private Limited of which the O.P. No. 2 was a Managing Director. Learned Counsel for the Petitioner further submitted that there was no question of deceit or cheating in this case as alleged and hence the proceeding initiated by O.P. No. 2 viz., T.R. No. 39/99 was a mala fide one and it was also for co-lateral purpose. He, therefore, urged upon this Court for quashing the said proceeding.

Learned Counsels for both the opposite parties submitted on the other hand, that O.P. No. 2 was never required to pay any amount as assignment charges in favour of the Petitioner in connection with the purchase of the flat in question by O.P. No. 2 or her concern. It was the candid submission of learned Counsel for O.P. No. 2 that O.P. No. 2 paid a sum of Rs. 50,000.00 vide Account Payee Cheque dated March 6, 1998, as booking money for the flat as per demand of the Petitioner. His further submission was that at the time of making such payment, it was disclosed by the Petitioner for the first time that the said flat belonged to M/s. Gallaxy Business Private Limited and not to the-Petitioner. At that time the Petitioner assured O.P. No. 2 that although the said flat did not belong to the Petitioner, the Petitioner will take all steps so as to enable O.P. No. 2 to get the flat from the said concern. Opposite Party No. 2 paid such an amount in good faith as booking money but subsequently when she made enquiries from M/s. Gallaxy Business Private Limited, the said firm denied having received such an amount (Rs. 50,000.00) from O.P. No. 2 towards booking charges for the said flat. It wajs further submitted by the learned Counsel for O.P. No. 2 that it was a clear case of cheating as dis-closed prima facie by the petition of complaint other relevant documents as on record and hence the Court should not quash the entire Criminal proceeding in exercise of its inherent powers u/s 482 of the Code of Criminal Procedure.

The petition of complaint lodged, by O.P. No. 2 against the Petitioner u/s 420 Indian Penal Code is on record. This petition of complaint and other materials on record prima facie showed that the Petitioner represented herself to be the owner of the flat in question and induced O.P. No. 2 to part with a sum of Rs. 50,000.00 as booking money for transfer of the flat in favour of O.P. No. 2 by the Petitioner. It also indicated prima facie that since O.P. No. 2 was eager to purchase the said flat, she issued an Account Payee Cheque dated March 6, 1998, for a sum of Rs. 50,000.00 in favour of the Petitioner as booking money as demanded by the Petitioner. The petition of complaint also disclosed that at the time of paying such an amount by cheque, the Petitioner disclosed to O.P. No. 2 for the first time that she was not the owner of the flat but that one M/s. Gallaxy Business Private Limited was the owner of the said flat. At such initial stage, O.P. No. 2 was reluctant to proceed in the matter but the Petitioner assured O.P. No. 2 that she would take all steps so that the flat in question is transferred in favour of O.P. No. 2 by M/s. Galaxy Business Private Limited. Subsequently, O.P. No. 2 found it difficult to get bank-loan and hence M/s. Papai Travels and Tours Private Limited, of which O.P. No. 2 was a Managing Director purchased the said flat at a consideration of Rs. 24,50,000.00 lakhs on July 27, 1998, from M/s. Gallaxy Business Private Limited. At the time of execution and registration of the deed of sale, the Petitioner promised to refund the booking amount of Rs. 50,000.00 to O.P. No. 2. But despite several requests made by O.P. No. 2, the Petitioner never refunded the said sum of money to O.P. No. 2. The petition of complaint further divulged prima facie that when O.P. No. 2 inquired of M/s. Gallaxy Business Limited as to whether they received the booking amount of Rs. 50,000.00 as paid by O.P. No. 2 to Petitioner on March 6, 1998, for payment to them as booking money, the said concern denied having received the same. On enquiry the O.P. No. 2 came to know that in stead of paying the said booking amount to M/s. Gallaxy Business Private Limited, the Petitioner encashed the ! said cheque in favour of Essem Consultants, a concern of the Petitioner. Moreover, O.P. No. 2''s letter dated November 21, 1998, addressed to Petitioner spoke i eloquently in favour of the prima facie case of O.P. No. 2.

in this context the reply given by the Petitioner to O.P. No. 2 in response to O.P. No. 2''s tetter dated November 21, 1998, eserves mention. The contention of the Petitioner in this letter was that the sum of Rs. 50,000.00 as paid by O.P. No. 2 to the Petitioner on March 6, 1998, has already been adjusted towards part payment of the assignment charges payable by O.P. No. 2 to the Petitioner in connection with the transfer of the flat by M/s. Gallaxy Business Private Limited to O.P. No. 2. The question as to whether O.P. No. 2 was liable to pay any amount as assignment charges to the Petitioner in connection with this transaction was a debatable area and it was for the trial Court to consider and decide such an issue after holding the trial.

In the facts and circumstances of, the case, I fond no cogent reason to quash the Criminal proceeding in entirety as arising out of T.R. No. 39/99 now pending before the learned Additional Judicial Magistrate, Alipore, District 24-Parganas (South) as prayed for by the Petitioner. To the contrary, I find that the allegations levelled by O.P. No. 2 against the. Petitioner in her petition of complaint and also in her other documents including the letter dated November 21, 1998, made out a prima facie case of cheating as punishable u/s 420 Indian Penal Code. Accordingly, the prayer of the Petitioner for quashing the instant criminal proceeding at the threshold of investigation u/s 482 Code of Criminal Procedure is liable to be dismissed and the same is hereby dismissed. The order of stay passed by this Court hereby racated.

Learned Court below is directed to proceed with T.R. 39/99 according to law.

The Criminal revisional application in hand is thus disposed of.