Lgw Limited & Ors vs The State Of West Bengal & Anr
2022 Latest Caselaw 8190 Cal

12.12.2022
S/L No.40
KS



                                               C.R.R.1006 of 2021
                                            LGW Limited & Ors.
                                                 -Vs.-
                                       The State of West Bengal & Anr.


                                   Mr. Sabyasachi Banerjee
                                   Mr. Ayan Bhattacharyya
                                   Mr. Pawan Kumar Gupta
                                   Mr. Sharequl Haque
                                                       ..... For the Petitioners
                                   Mr. Madhusudan Sur
                                   Mr. Dipankar Paramanick
                                                       .....For the State
                                   Mr. Navanil De
                                   Mr. P. Basu
                                   Mr. R. Mukherjee
                                   Mr. S. Ghosh
                                                       .....For the O.P. No.2



                    The present revisional application has been preferred challenging

             the proceedings arising out of Bidhannagar (South) Police Station Case

             No.1 of 2021 dated January 2, 2021 under Sections 420/ 406 of the Indian

             Penal Code.

                    The petitioners are LGW Limited, Anurag Gupta and Sanjay

             Kumar Gupta being the Director and the Managing Director

             respectively of the said company. They have approached before this

             Court challenging the continuance of the proceedings. According to the

             petitioners they are the owners of the land who entered into an

             agreement with the developers who are responsible for construction and

             selling of the properties in a particular ratio.
                                     2




      Learned advocate appearing for the petitioners draws the

attention of this Court to the relevant clauses of the agreement. Learned

advocate emphasizes that the clauses in the agreement itself would

reflect participation or the complicity of the petitioners in the alleged

offence.   Learned advocate further submits that it is an admitted

position that the petitioner company or its Directors did not receive any

money and payment was made to the developers who were responsible

for representations and the agreements which have been entered into

and the commitments made therein. According to him, the petitioners

have suffered pursuant to the act of the developers as they have not

received their entitlements even after parting with the land. In order to

substantiate his arguments learned advocate relied upon authorities of

the Hon'ble Supreme Court wherein interference was made, relying

upon Murari Lal Gupta Vs. Gopi Singh reported in (2005) 13 SCC 699,

Learned advocate drew the attention of this Court to paragraphs 1 and 6

and submitted that in a case where out of three and half lakhs were paid

and the agreement was not complied. The Hon'ble Supreme Court was

pleased to quash the proceedings holding that a civil liability between

the parties have been converted into a criminal case and the

complainant has evaded a civil suit for specific performance of the

agreement and opted to file a criminal case. Learned advocate also

relied upon Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh

and Anr. reported in (1998) 5 SCC 694 and drew the attention of this

Court to the illustration (g) of Section 415 pointed out by the Hon'ble
                                         3




Supreme Court and the conclusion arrived at paragraph 3 of the

judgment which is set out as follows:-

       "3. The later part thereof illustrates that at the time when agreement for

sale was executed, it could have in no event been termed dishonest so as to hold

that the complainants were cheated of the earnest money, which they passed to

the appellant as part-consideration, when possession of the total land involved

in the bargain was passed over to the complainant-respondents, and which

remains in their possession. Now, it is left to imagine who would be interested

in delaying the matter in completing the bargain when admittedly the

complainants have not performed their part in making full payment. The

matter is therefore before the civil court in this respect. The liability, if any,

arising by the breach thereof is civil in nature and not criminal. We therefore

allow this appeal, and set aside not only the impugned orders of the High

Court, but quash the proceedings too which are pending before the Magistrate.

The complainant-respondents shall pay compensatory costs to the appellant for

these vexatious proceedings which we assess at Rs.10,000 which the

respondents are directed to pay to the appellant within six weeks from today."

Mr. Sur, learned advocate appearing for the State produces the

Case Diary and points out that the petitioners company was also

signatory to the agreement which was entered into between the

developer and the complainant. Mr. Sur, learned advocate appearing

for the State submits that the investigation of the case is proceeding and

the documents are being collected and the process of collection of

documents are still in progress. However, as the investigation was

stalled pursuant to the order passed by this Court the investigation

could not proceed.

Mr. De, learned advocate appearing on behalf of the complainant

submits that in spite of payment of Rs.34 lacs till date the alleged flat is

not ready or there is any scope for the flat to be ready in the near future.

There are also allegations by the complainant that the construction is

without any sanction plan.

Be that as it may, the investigation of the case is in progress. The

judgments so relied upon by the learned advocate appearing for the

petitioners are firstly at the stages when cognizance was already taken

by the Criminal Courts and the subject-matter of challenge was whether

criminal prosecution should continue. In the present case, the

investigation of the case is in progress. The Investigating Agency is in

the process of collection of materials. In these type of cases it may not

be that a person who has been named as an accused by the complainant

may be named as accused, at the stage when the charge-sheet is

submitted but to scrutinize all the documents/agreements, at this stage,

is not the duty of the Court. Secondly, one must remember that a

judgment is an authority on what it decides and not what logically

flows from it. The aforesaid two judgments were pressed by the learned

advocate appearing for the petitioners to draw a logical conclusion that

if an agreement in respect of a property is made and substantial amount

is paid in that case, the only option available if the agreement do not

materialize to the aggrieved party is to approach the Civil Court for

specific performance of the said agreement. This may not be justifiable

in the facts of the present case where a new township is being

developed in the area where large number of cases are accruing on

similar set of facts wherein after entering into agreement substantial

amount of money is received, the intending flat owners are deprived of

their property. The background is completely different.

Having regard to the same, I do not intend to interfere with the

investigation at this stage.

Petitioners would be at liberty to hand over any document in

their custody for aiding the investigation of the case. The investigating

authority at the time of submission of their report under Section 173 of

the Code of Criminal Procedure would assess the involvement,

culpability of the present petitioners and, thereafter submit their report.

With the aforesaid observations, C.R.R.1006 of 2021 is disposed

of.

Pending applications, if any, are consequently disposed of.

As there was an interim order of stay for about one and half

years, I direct that the investigating authority will not arrest the

petitioners till 31st December, 2022.

Petitioners would be at liberty to exhaust remedies in law in the

meantime.

All parties are directed to act on the server copy of this order

downloaded from the official website of this Hon'ble Court.

(Tirthankar Ghosh, J.)