Dipak Kumar Rudra vs Mohar Ali
2023 Latest Caselaw 1365 Cal

                 IN THE HIGH COURT AT CALCUTTA
                  (Criminal Revisional Jurisdiction)
                            Appellate Side

Present:
The Hon'ble Justice Rai Chattopadhyay

                             CRR 1916 of 2016
                                     With

                 CRAN 6 of 2018 (Old No. CRAN 2294 of 2018)

                                     With

                  CRAN 9 of 2020 (Old No. CRAN 977 of 2020)

                             Dipak Kumar Rudra

                                     Vs.

                                  Mohar Ali


For the petitioners                         : Mr. Debasis Roy,
                                              Mr. Apurba Kumar Datta,
                                              Ms. Sreemoyee Mukherjee.


For the OP                                  : Mr. Prosenjit Mukherjee,,
                                              Ms. Poulami Dutta.


Hearing Concluded on                        : 13/02/2023

Judgment on                                 : 23/02/2023



Rai Chattopadhyay,J.

1. In this revision, the petitioners have primarily challenged the order of the

Trial Court dated 4th April, 2016, rejecting his petition for discharge. The

petitioners have in effect challenged in this revision the complaint and the

subsequent proceedings thereof in C.R. Case No. 823 of 2010 under Section

420/34 of the Indian Penal Code pending in the Trial Court i.e., Judicial

Magistrate, 1st Class, 2nd Court, Jangipur, Murshidabad.

2. The opposite party is the complainant in the Trial Court. He has lodged the

complaint on 18th September, 2010 alleging against the present petitioners,

inter alia, that the petitioners being the owner and officers of the showroom

"Rudra Automobiles" had previously transferred to him on sale a care being

WB41D1527 in lieu of Rs.3,30,000/-, though without adequate and

appropriate documents relating to the insurance of the said car.

3. According to the complainant/opposite party the said transaction in lieu of

money by the present petitioners were deceptive and an act of cheating

committed by the petitioners upon the complainant, in so far as at the time

of sale the petitioners being the owner of the showroom had given

complainant to understand that all the necessary formalities were being

maintained and the documents were being handed over relating to the car,

to the purchaser, that is the complainant.

4. In the said complaint, the complainant has also mentioned about the said

purchased car to have met with an accident and revealing of the incident of

cheating by the present petitioners, when actually the complainant went to

realize the insurance, for the car. The complainant was examined under

Section 200 of the Code of Criminal Procedure, by the Magistrate on 1 st

October, 2010 and the cognizance of the offence was taken by the

Magistrate in the case.

5. Mr. Roy, learned Advocate appearing for the petitioners has revealed the

grievance of the petitioners in the following manner:

Firstly, that there has not been any transaction between the petitioners and

the complainant of any car as alleged, hence accordingly, the entire

allegation made in the said complaint against the petitioners is only

manufactured and concocted, that the complainant bringing up such

manufactured allegations against the petitioners renders the same to be

only malicious whereupon no criminal case should be allowed to be

maintained or proceeded with.

6. During argument learned Advocate has relied on the statement of the

complainant made before the police in connection with some other police

case, to emphasize that the complainant has himself claimed therein to

have purchased the concerned vehicle from some other person, than the

present petitioners. He has named his vendor to be one Sisir Kumar

Ghosh.

7. The document is annexed with the supplementary affidavit submitted by the

petitioners in this case.

8. On the above premises, according to Mr. Roy, appearing for the petitioners

the criminal case being C.R. Case No. 823 of 2010 under Sections 420/34

of the Indian Penal Code against his clients, is not maintainable and is a fit

case for this Court to invoke its power under Section 482 of the Code of

Criminal Procedure to quash and set aside the same.

9. The following three cases were referred to by him for the petitioners:

i. State of Haryana & Ors. vs. Bhajanlal & Ors. reported in 1992

Supp. (1) Supreme Court Cases 335.

ii. Hirak Chand Dawn vs. Mohar Chand Dawn & Ors. reported in 1997

(II) CHN 467.

iii. Buddhadeb Ghosh vs. Rina Mal reported in (2006) 2 C CrLR (Cal)

536.

10. Vehement objection has been raised on behalf of the opposite party.

11. Mr. Mukherjee, learned Advocate appearing for the opposite party has

argued that according to the settled principles of law, this Court shall be

empowered only to examine if any cognizable case has been made out

against the accused persons/petitioners in the complaint or not. According

to him, prima facie presence of the ingredients of offence as alleged against

the petitioners would suffice to drive this Court not to interfere with a

criminal proceeding initiated against them.

12. During his argument, he has relied on a report submitted by the police in

the Trial Court in connection with the said case. It has been pointed out

that in the police report as above, after preliminary enquiry the police has

noted purchase of the concerned vehicle from "Rudra Automobiles" by the

complainant. According to him, in view of this report and the allegations

made in the complaint, there can be no scope to find absence of sufficient

material against the petitioners. Therefore, according to him, the settled

principles of law should govern this Court not to interfere with the criminal

proceedings against the petitioners.

13. No doubt it is settled that a Court sitting in a jurisdiction vested under

section 482 of the Code of Criminal Procedure would be required to look

into the fact whether the complaint and the allegations levelled therein have

constituted any prima facie offence or made out any case against the

accused persons or not, to interfere into the proceedings intiaited pursuant

to the said complaint.

14. The Court has also to see if the criminal proceedings initiated against the

accused persons is manifestly attended with mala fide or malice, to pose a

threat to its credibility.

15. These principles are well-settled through numerous judgments of the

Constitutional Courts including that referred to in this Court on behalf of

the petitioners, that is, State of Haryana & Ors. vs. Bhajanlal & Ors.

reported in 1992 Supp. (1) Supreme Court Cases 335.

16. So far as the facts of the present case are concerned, the opposite

party/complainant has come up with the complaint as mentioned above

alleging purchase of vehicle from "Rudra Automobiles" owned by the present

petitioners and deception by the present petitioners as the officers of the

said Company by not providing adequate documents and facilities for

purchase of the said car.

17. However, though allegations have been made and the complainant has also

made statement before the Judicial Magistrate under Section 200 of the

Code of Criminal Procedure, he has not relied upon any other sufficient

document to substantiate his claim of purchase of any car from the

petitioners' company. This would have been imperative for him to submit

adequately in support of his purchase from the petitioner's company, over

and above statements made by him either in the complaint or before the

Magistrate, more so in view of the fact that the entire dispute between the

parties is based upon the question as to from whom the complainant has

purchased the vehicle.

18. This is for the reason that the vendor would only have the liability of

handing over the entire connected documents to the purchaser at the time

of sale of a car. Any malpractice or deception as alleged would be a stake

upon the vendor and no one else.

19. Accordingly, to substantiate his allegations against thte petitioners the

complainant should have come up with sufficient evidence to construe, at

least prima facie that the present petitioners are the vendors to the

complainant.

20. Upon careful perusal of the materials in this case, I am constrained to hold

that the complainant has not been able to bring on record any such

sufficient material in this case. It is needless to mention that in order to

bring on record the allegations under Section 420 of the Code of Criminal

Procedure against any person, the complainant is to bring on record at least

prima facie the ingredients of offence of "cheating" has envisaged under

Section 415 of the Indian Penal Code, that is, inducement from the very

initiation of a transaction between them and deception by inducing the

complainant, to secure wrongful gain by the accused person.

21. Obviously, no such ingredient of offence has been brought on record by the

complainant against the present petitioners. there is also not even any iota

of material to show any monetary transaction between the parties.

22. Therefore, in absence of any such material as discussed above, and

following the settled principles of law as discussed above, I do not find any

cogent ground and that sufficient enough, not to exercise this Court's power

under Section 482 of the Code of Criminal Procedure in the present case, to

interfere with the criminal proceedings against the petitioners.

23. It is found that the complaint dated 18 th September, 2010 against the

present petitioners has not disclosed any offence or made out any case

against the petitioners. Accordingly, the entire criminal case against the

petitioner is unsubstantiated. Possibility of the case being lodged

maliciously and motivatively can also not be ruled out. This must prompt

this Court to find that the complaint dated 18 th September, 2010 against

the petitioners should not be proceeded with any further or else the same

shall amount to gross abuse of the process of Court and that of law as well.

24. On the above premise, the case being C.R. 823 of 2010 under Section

420/34 of the Indian Penal Code pending in the Court of Judicial

Magistrate, 1st Class, 2nd Court, Jangipur, Murshidabad is quashed and set

aside. Hence, this revision succeeds.

25. Any application of the petitioners, if pending, and the application of the

opposite party/complainant for vacating the interim order stand disposed of

with this order.

26. With the directions as above, this revision is disposed of.

27. Certified website copies of this order, if applied for, be supplied to the

parties subject to compliance with all the requisite formalities.

(Rai Chattopadhyay, J.)