Pabitra Kumar Das And Another vs The State And Another
2023 Latest Caselaw 496 Cal

Item No.5

In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side

Present:

The Hon'ble Justice Siddhartha Roy Chowdhury

C.R.R. No. 1287 of 2011

Pabitra Kumar Das and another Vs.

                          The State and another



For the petitioners      :       Mr. Sayan De,
                                 Mr. Asoke Basu,
                                 Mr. Sayan Kanjilal,
                                 Mr. Koustav Shome

For the State            :       Mr. Binay Kumar Panda,
                                 Mr. Subham Kanti Bera

Heard on                 :       17.01.2023

Judgment on              :       17.01.2023




Siddhartha Roy Chowdhury, J:-

This application under Section 482 of the Code of Criminal Procedure

has been filed by the petitioners seeking an order of quashment of the

proceeding being G.R. Case No. 2497 of 2009 arose out of Khardah Police

Station Case No. 407 of 2009 dated 2nd September, 2009.

Briefly stated, the opposite party no.2 Ahsoke Kumar Dey set the

criminal administration justice into a motion by taking out an application

before the learned Chief Judicial Magistrate at Barasat which was registered

as Complaint Case No. 1962 of 2009.

It was alleged that Sri Ashoke Kumar Dey acquired ownership in

respect of 17 decimal of land by virtue of a deed of gift executed by his

grandmother on 8th October, 1974 and in the wake of a settlement arrived at

by and between Sri Dey and his grandmother in Title Suit No.211 of 1976,

he acquired 17 decimal of land and, thus, he became owner of 34 decimal of

land. He was possessing the property peacefully till 12th March, 2009 when

his sister and her husband along with her men and agents trespassed into

his property and claimed to have acquired ownership in respect of 11

decimal of land by virtue of a registered deed of gift allegedly executed by Sri

Dey.

It was further disclosed that upon enquiry, Sri Dey came to know that

on 5th January, 1983, a forged deed of gift was prepared and executed

depicting him as donor in favour of the accused no.2, Kalyani Das, but at

the relevant point of time, he was undergoing treatment for mental unfitness

and was under the supervision of a Psychiatrist. He never executed any

deed of gift in favour of the accused no.2, Kalyani Das, who happens to be

his full-blood sister. The said petition of complaint was forwarded to

Khardah Police Station under Section 156(3) of the Code of Criminal

Procedure and Khardah P.S. Case No. 407 dated 2nd September, 2009 was

registered.

Mr. Sayan De, learned counsel for the petitioners draws my attention

to the averment made in the plaint of Title Suit No.216 of 2009 filed by Sri

Ashoke Kumar Dey, the de facto complainant against Kalyani Das, the

accused-petitioner no.2, seeking declaration and permanent injunction. In

support of his pleading, Sri Dey affirmed an affidavit on 29th April, 2009

while the First Information Report (FIR) was lodged on 2nd September, 2009.

I am made to go through the averment of plaint made in paragraph no.7,

wherein the de facto complainant, as plaintiff, stated that the defendant and

her husband, taking advantage of his mental illness, took him into the office

and asked the plaintiff to put his signature on some papers for the purpose

of his better treatment and on good faith, the plaintiff obliged his "sister and

his sister-in-law" without giving a second thought to what was proposed.

According to Mr. Dey, the averment made in the plaint and the allegation

made in the petition of complaint, which was subsequently treated as FIR by

the order of the learned Chief Judicial Magistrate, North 24 Parganas if

considered it contradistinction to each other, it would transpire that they

are mutually contradictory and the criminal proceeding is manifestly

attending with mala fide. Civil dispute has been imbibed with the colour of

criminality which amounts to abuse of process of law.

True it is in his averment made in the plaint of Title Suit No. 216 of

2009, the plaintiff admitted to have executed or to have put his signatures

on certain papers while in his petition under Section 156(3), the said Mr.

Ashoke Kumar Dey stated that his signature was forged and a document

was purportedly manufactured to be used as genuine to grab the property

he owns. This fact unerringly indicates that the criminal proceeding

registered as G.R. Case No. 2497 of 2009 has been initiated with a mala fide

intention to saddle the petitioners with criminal liability.

Admittedly, two civil suits are pending - one being Title Suit No. 216

of 2009 filed by Sri Ashoke Kumar Dey, the private opposite party herein -

and the other one being Title Suit No. 414 of 2009 filed by Kalyani Das, the

petitioner no.2 herein against his brother Ashoke Kumar Dey, prior to filing

of the petition of complaint.

Under such circumstances, relying on a judgment of the Hon'ble

Supreme Court pronounced in the case of State Haryana and others vs.

Vajanlal and others, reported in (1992) Supp.(1) 335, I consider it expedient

to invoke the jurisdiction of Section 482 of the Criminal Procedure Code to

quash the proceeding being G.R. Case No. 2497 of 2009 pending before the

learned Additional Chief Judicial Magistrate, Barrackpore, North 24

Parganas to avert the abuse of process of law.

This criminal revision is disposed of.

Application, if any, stands disposed of. Interim order of stay, if any,

stands vacated.

Urgent photostat certified copies of this order, if applied for, be made

available to the parties upon compliance with the requisite formalities.

(Siddhartha Roy Chowdhury, J.)

TN