Calcutta High Court (Appellete Side)

Sri Beni Madhab Roy vs Miss Sanjukta Chourasia & Ors on 31 August, 2023

                     IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION
                             Appellate Side

PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH

C.R.R. 1081 of 2022

Sri Beni Madhab Roy versus Miss Sanjukta Chourasia & Ors.


Mr. Indrajeet Dasgupta,
Ms. Puspita Bhowmick           ... For the Petitioner.

Heard on                       :   28.07.2023 & 17.08.2023.


Judgment on                    :   31.08.2023

Tirthankar Ghosh, J:-

The present revisional application has been preferred challenging the

proceedings of Complaint Case No. CN-1059/21 dated 29.11.2021 which is

pending before the learned Metropolitan Magistrate, 18th Court, Calcutta

under Sections 420/406/506/34 of the Indian Penal Code. The Complaint

Case was initiated before the learned Additional Chief Metropolitan

Magistrate, Calcutta by one Miss Sanjukta Chourasia and the petitioner was

implicated as accused no.5 in the said complaint. The learned Magistrate on

perusal of the complaint was pleased to take cognizance of the offences

under Sections 420/406/506/34 of the Indian Penal Code and

subsequently after examination under Section 200 of the Code of Criminal

Procedure of the complainant/representative and another witness, namely,

Om Prakash Chourasia and Meena Chourasia was pleased to issue process

under Sections 420/406/506/34 of the Indian Penal Code.

The allegations made in the petition of complaint were to the effect

that M/s. B. S. Enterprises, the partnership firm and Bimal Kumar Sikaria

(accused no.2) and Sri Sandip Sen are partners of the said firm who were

engaged in developing a multistoried building with the landowners on joint

venture basis. The accused nos. 4 and 5 being Neel Madhab Roy and Beni

Madhab Roy were the joint owners of the land situated at 53B, Sova Bazar

Street and 12, Rasik Lal Ghosh Lane, Kolkata-700005. It has been

contended that the accused nos. 4 and 5 (petitioner) handed over the

schedule property to the partners of the accused firm by executing a

development agreement which was notarised on 09.05.2018 where accused

nos. 4 and 5 jointly signed as Administrator to the Estate of Kumar

Pramatha Nath Roy and the accused nos. 2 and 3 as developers jointly

signed the terms and conditions for developing the multistoried building. A

registered power of attorney was also given in favour of the accused nos. 2

and 3 by the accused nos. 4 and 5 for the purposes of development of the

multistoried building and also for execution of agreement of sale and deed of

conveyance for the intending purchasers of any newly constructed flat of the

said multistoried building. Additionally, the developers were also empowered

to collect advance amount of the total sale consideration on behalf of the

accused nos. 4 and 5 as they are lawful representatives and attorneys. After

scrutinising all the documents and papers, the complainant entered into an

agreement for sale on 02.01.2018 with accused nos. 2 and 3 both being

partners of accused no.1/firm for purchasing one flat on Block A, 1 st Floor

being flat no. 1C, measuring super built up area of 1050 sq. ft. (more or less)

in the said land at 53B, Sova Bazar Street and 12, Rasik Lal Ghosh Lane,

Kolkata-700005 where the accused nos. 2 and 3 signed as constituted

attorney of the accused nos. 4 and 5. The complainant gave a sum of

Rs.23,00,000/- by cash and by RTGS in the name of the accused nos. 1 and

3 by electronic mode out of total consideration of Rs.31,50,000/- for

purchasing the said flat by way of advance payment.

The complainant alleges that after passage of time the developers

along with land owners were not able to collect completion certificate from

the competent authority and as such were not able to hand over the flat to

the complainant. The time period which was mentioned in the agreement for

sale i.e., 30 months from the date of execution of the said agreement was

also not adhered to neither the advance amount was returned. The

complainant thereafter started visiting the office of the accused persons, but

she was thrown out and abused in filthy languages. The complainant by way

of a demand notice dated 23.09.2021 demanded the amount of

Rs.23,00,000/-. The said notice was received by the accused persons, but in

spite of receipt of the same, they did not refund it, thereby causing wrongful

loss to the complainant to the tune of Rs.23,00,000/-. According to the

complainant, the developer and the land owner knowing full well have

falsely and fraudulently accepted the advance amount with a malafide

intention to deceive the complainant for enriching themselves by way of

wrongful gain. The accused persons have by their act and conduct

committed offences of cheating, criminal breach of trust, criminal

intimidation and all of them were hand in gloves with each other. As such,

according to the complainant, they should be tried for the offences under

Sections 420/406/506/34 read with Section 120B of the Indian Penal Code.

On receipt of the complaint, the learned Additional Chief Metropolitan

Magistrate, Calcutta was pleased to take cognizance of the offences and

thereafter was pleased to transfer the case to the learned Metropolitan

Magistrate, 18th Court, Calcutta.

As aforestated the learned Metropolitan Magistrate, 18 th Court,

Calcutta on examination of the complainant's authorised representatives

and another Meena Chourasia was pleased to issue process under the

provisions of Sections 420/406/506/34 of the Indian Penal Code.

I have considered the submissions advanced on behalf of the

petitioner and the complicity of the present petitioner. From the allegations

made in the petition of complaint, it is transparent that the case has been

instituted for the purposes of refund of the sum of Rs.23,00,000/-. The said

sum of Rs.23,00,000/- was paid to the accused no.1 which happens to be

the partnership firm of accused nos. 2 and 3. Except oral assertions, there

is nothing on record to show that any amount was paid to the accused no.5

being the present petitioner. The subject-matter of wrongful gain or wrongful

loss which has been claimed by the petitioner was never part and parcel of

any act or conduct of the accused no.5/petitioner. Further the petitioner

along with another were the land owners. The main purpose of the amount

being advanced was for the purposes of purchase of a flat on Block A, 1st

Floor being flat no. 1C of the premises at 53B, Sova Bazar Street and 12,

Rasik Lal Ghosh Lane, Kolkata-700005.

Having regard to the nature of the allegations which has been made, I

am of the view that the provisions of Section 420 of the Indian Penal Code or

for that purpose Section 406 of the Indian Penal Code is not made out as in

this case there was an agreement and in respect of the agreement, the

amount was advanced. The said amount was advanced to the accused no. 1,

the representatives of whom are accused nos. 2 and 3. Accepting the fact

that the accused no.5/petitioner happens to be the owner of the land, there

is nothing on record to show that the petitioner no.5 had any intention to

deceive the complainant. The communications and/or representations were

made between the accused no.1 and its partners and the complainant. Even

if the allegations are taken to be true, I am of the considered view that the

remedy of the petitioner is before the civil court and a dispute which should

have been adjudicated by the civil court has been given a cloak of a criminal

proceeding. To that effect the Hon'ble Supreme Court in Hridaya Ranjan

Prasad Verma & Ors. -Vs.- State of Bihar & Anr. reported in (2000) 4 SCC

168 was pleased to observe as follows:

"15. ....... that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been

committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise............."

Further in Indian Oil Corporation -Vs. - NEPC India Ltd. & Ors.

reported in (2006) 6 SCC 736, the Hon'ble Supreme Court was pleased to

hold that:

"14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. ........."

In a recent judgment of the Hon'ble Supreme Court being Mitesh

Kumar J. Sha -Vs. - State of Karnataka & Ors. reported in 2021 SCC

OnLine SC 976, the aforesaid view has been approved.

Having regard to the nature of the allegations and the complicity

which has been portrayed particularly with regard to the present petitioner,

I am of the opinion that further continuance of the proceedings so far as the

present petitioner is concerned in the background of the allegations and the

initial deposition of the witnesses do fail to make out any offences under

Sections 420/406/506/34 of the Indian Penal Code. As such, further

continuance of Complaint Case No. CN-1059/21 dated 29.11.2021 pending

before the learned Metropolitan Magistrate, 18th Court, Calcutta is an abuse

of the process of law and as such the same is hereby quashed.