Rajendra Rameshchandra & Anr vs The State Of West Bengal
2022 Latest Caselaw 7263 Cal

Court No. 35
Item 8
                                         CRR 3931 of 2022
ASR & Ali
20.10.2022

Rajendra Rameshchandra & Anr.

-Vs-

The State of West Bengal

Mr. Kishore Dutta, Ld. Sr. Advovcate Mr. Neelesh Choudhury, Mr. A. Podder, Mr. A Tiwari, Mr. S. Mishra ...for the petitioners.

Mr. Debasish Roy, Mr. Sandipan Ganguly, Mr. Sabyasachi Banerjee, Mr. Rajdeep Majumdar, Mr. Sourav Chatterjee, Mr. Anand Kesori, Mr. Soumen Mohanty, Mr. Ayan Poddar, Mr. Piyush Kumar Roy, Mr. Agnish Basu ..for the Defacto Complainant.

Mr. Rudradipta Nandy, Ld. APP Ms. Sonali Das .......for the State.

The revisional application is moved praying for a stay of

the proceeding being C.G.R. Case No. 381 of 2020 arising out

of Kalighat Police Station Case No. 19 of 2020 dated

01.02.2020 Under Sections 406/418/420/467/468/471 and

120B of the Indian Penal Code 1960 pending before the

learned Chief Judicial Magistrate, Alipore.

Learned lawyer for the petitioners moving the stay

application, places the order dated 10.10.2020 wherein

learned Magistrate has been pleased to issue warrant of arrest

against the petitioners. The parties herein started discussions

in the year 2009 relating to the agreement of 2011. The

requirement was for suitable flats in Mumbai for the

complainant's business. The accused's company is a Real

Estate Firm in Mumbai. The complainant's case is that on and

around 2011 the parties entered into an agreement and their

company paid an advance of Rs. 3,30,00,000/-(Three crore

thirty lakhs only) in favour of the accused persons' company

through RTGS.

Subsequently, as the accused persons/company could

not perform their part of the agreement, the said amount

advanced was converted into a loan account in the year 2016

on mutual agreement.

Mr. Kishor Dutta, learned lawyer for the petitioners has

argued that the dispute between the parties is civil in nature

(commercial) and the opposite party has initiated the criminal

proceeding only to harass the petitioners. Mr. Dutta has relied

upon paragraph No. 8 of the Judgment of the Supreme Court

in the matter of: Mohammed Ibrahim and Others Vs. State

of Bihar and Another reported in (2009) 8 Supreme Court

Cases 751.

Para 8: "This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to

pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri V. State of U.P. and Indian Oil Corpn. Vs. NEPC India Ltd.) Let us examine the matter keeping the said principles in mind".

Mr. Dutta has also relied upon the decision cited in the matter of: Rajinder Singh Katoch Vs. Chandigarh Admn. And Others reported in (2007) 10 Supreme Court Cases 69.

This court finds that the circumstance in the said case is different from the one before this court.

The decision in V.Y.Jose and Another Vs. State of Gujarat and Another (Para 21) reported in (2009) 3 Supreme Court Cases 78, has also been relied upon:-

                         Para     21:-      "There    exists   a
                 distinction    between      pure    contractual

dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure".

The decision in the matter of Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in

(2014) 2 Supreme Court Cases 1 has been relied upon by the learned lawyer for both sides. The counsel for the petitioner relies upon. Para 120.6 of the said judgment lays down:-

120.6:- "As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry".

It is further submitted that the dispute between the

parties is also before the National Company Law Tribunal,

Mumbai Bench in (Company petition no. 4148 of 2018).

Considering all these facts and circumstances, It is prayed

that interim protection may be granted to the petitioners in

this case.

Learned lawyer for the opposite party has appeared

(without notice/service) and has countered the submission of

the petitioners by relying upon a judgement of this Court in

CRR 2918 of 2022 wherein the court considered the

submissions of the learned counsel appearing on behalf of the

petitioners relying upon para 120.6 of the Judgment in Lalita

Kumari -Vs.- Government of Uttar Pradesh (Supra) and also

paragraphs 120.1, 120.2 and 120.4 of the said judgement.

It is also submitted that as the written complaint

discloses commission of a cognizable offence, the registration

of FIR of the present case is proper. It is further submitted

that primary enquiry was held prior to registration of the FIR

herein.

It is further submitted on behalf of the opposite

parties that in a case of such magnitude and considering the

nature of case, the court must hesitate to interfere.

Admittedly, a sum of Rs. 3,30,00,000/-(Three crore thirty

lakhs only) was taken as an advance by the petitioners'

company.

There is no dispute regarding the said amount

between the parties.

The matter regarding interest is to be considered at

the appropriate stage by the appropriate forum.

Considering the materials on record and the

submission of both sides and also the nature of transaction

between the parties on the basis of an agreement (admitted)

leading to the dispute between the parties, this case needs to

be heard out on merit.

Accordingly, let there be an order of stay in respect of

order dated 10.10.2022 in C.G.R. Case No.381 of 2020

pending before the learned Chief Judicial Magistrate, Alipore

for a period of 8 weeks, on condition that the petitioners will

deposit a sum of Rs. 3,30,00,000/-(Rupees Three crore thirty

lakhs only) within two weeks from the date of this order, failing

which the order of stay shall automatically stand vacated.

It is made clear that only the order dated 10.10.2022

relating to the issuance of warrant of arrest and search

warrant has been stayed. The investigation in this case shall

proceed in accordance with law.

Needless to say, the petitioners will cooperate with the

investigating agency.

Liberty is granted to the parties to pray for appropriate

relief as and when the occasion arises.

Service upon the learned lawyers for the State and the

complainant be effected and affidavit of service be filed.

(Shampa Dutt (Paul, J.)