Calcutta High Court (Appellete Side)
Smt. Sharmila Bhattacharjee & Anr vs The State Of West Bengal & Anr on 31 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 121 of 2019
Smt. Sharmila Bhattacharjee & Anr.
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Rajdeep Majumder,
Mr. Moyukh Mukherjee,
Mr. Abhijit Singh.
For the State : Mr. Binoy Panda,
Ms. Puspita Saha.
Heard on : 10.01.2023
Judgment on : 31.01.2023
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Shampa Dutt (Paul), J.:
The present revision has been preferred by the petitioners/
accused persons praying for quashing of the proceedings being GR Case
No. 393/2017 arising out of Bidhannagar (North) Police Station Case
No. 92/2017 dated 16.05.2017 under Sections 420/406/120B of the
Indian Penal Code pending before the Learned Additional Chief Judicial
Magistrate, Bidhannagar, North 24 Parganas.
The petitioner's case is centered around a property which is
situated at BE - 91, Salt Lake, Kolkata - 700 064. The petitioner no. 1
and her husband were the lawful owners of the said plot, which
measures about 5 cottahs, wherein a two storied building was
constructed by the late husband of the petitioner no. 1, namely, Manik
Lal Bhattacharjee (since deceased) and the petitioner no. 1 along with
her husband were lawfully possessing the said property.
After the death of the husband of the petitioner no. 1, in the year
2014, the complainant along with one Debabrata Banik approached the
petitioner no. 1 herein through one Rabin Arya an erstwhile household
help working in the house of the petitioner no.1.
Based on the intentions of the complainant and said Debabrata
Banik to purchase the aforesaid property, the petitioner no.1 (being a
law abiding citizen), entered into a memorandum of understanding with
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the complainant and said Debabrata Banik. The consideration value in
the said memorandum of understanding with regard to the said
property was to the tune of Rs. 4 crores. Moreover a certain sum was
paid by the complainant and Debabrata Banik to the petitioner no. 1.
However the said complainant and Debabrata Banik, did not act
as per the conditions stipulated in the said contract. The complainant
and said Debabrata Banik were supposed to clear the outstanding
payments within a period of six months from the date of signing of the
memorandum of understanding. But the outstanding payments were
not made within the stipulated period/time frame. On the contrary, the
petitioner no.1 has not only returned the advance sum which was
paid to her, but has also paid in excess.
Suppressing the aforesaid facts and circumstances a complaint
was lodged by the Opposite Party No. 2 against the petitioners herein,
with the Officer in Charge of Bidhannagar (North) Police Station therein
alleging commission of offences punishable under Sections
420/406/120
B of the Indian Penal Code, 1860.
It was alleged that the petitioner no. 1 and her son, namely
Shivaji Bhattacharjee, approached the complainant, stating that they
were the lawful owners of a property situated at BE 91, Salt Lake,
Kolkata - 700 064, and that they were in a financial crunch and for
which they wanted the sale of the property. It was further alleged that
pursuant to a memorandum of understanding, a sum of Rs. 39 Lakhs
was paid by the complainant. It was further alleged that the
petitioners/accused persons did not act as per the terms and conditions
of the said contract, and the petitioner no. 2 started hurling coercive
threats to the complainant.
On the basis of the written complaint lodged by the Opposite
Party no. 2, the Officer in Charge of Bidhannagar (North) Police Station
registered a case being Bidhannagar (North) Police Station Case No.
92/17 dated 16.05.2017 under Sections 420/406/120B of the Indian
Penal Code, against the petitioners.
Upon completion of investigation, the investigating agency
submitted its report in final form being Charge Sheet No. 101/18 dated
30.06.2018 under Sections 420/406/120B of the Indian Penal Code.
Co-accused namely, Shivaji Bhattacharjee (son of petitioner no. 1) was
not charge sheeted in the instant case. On the basis of the said charge
sheet the Learned Additional Chief Judicial Magistrate, Bidhannagar
was pleased to take cognizance vide order dated 07.07.2018.
The petitioners submit that the instant proceeding as initiated
against the present petitioners is absolutely baseless, frivolous and
displays a clear misuse of the provisions of criminal law and fails to
disclose any commission of offence by the petitioners. It is submitted
that attempt has been made by the opposite party no. 2 to give a colour
of criminal proceeding to a dispute of different nature (contract).
Mr. Rajdeep Majumder Learned counsel for the petitioners
has submitted that the impugned proceeding and all orders passed in
connection with the said proceeding are otherwise bad in law and are
liable to be set aside and/or quashed.
The opposite party no. 2 in the instant proceedings set the
criminal law into motion by twisting material facts.
The malicious intention of filing the instant criminal case,
becomes ostensible, when one observes the conduct of the Opposite
Party No. 2. Furthermore an inherently improbable story has been
hatched to implicate the petitioner herein, though there is no
evidentiary value to support the same.
It is further submitted that the factual scenario as depicted in
the instant case, hereinabove, clearly portrays a picture which runs
contrary to the basic ingredients which constitute offences punishable
under Sections 420/406/120B of the Indian Penal Code. The said
offences alleged have no manner of application so far as the present
petitioners are concerned and thus petitioners cannot be said, by any
stretch of imagination, to possess such mens rea which would bring
their actions within the ambit of Sections 406/420/120B IPC as defined
in the Indian Penal Code and on this score alone the impugned
proceeding is liable to be quashed.
And that the continuation of the instant proceeding is otherwise
bad in law and is liable to be set aside.
Mr. Binoy Panda Learned counsel for the State (opposite
party no. 1) has produced the case diary and submits that the
petitioners have admittedly repaid more than the amount that was
paid by the complainant/private opposite party.
The opposite party no. 2 has not appeared in spite of being
duly served.
From the materials on record and the case diary it is seen that
the statements of the complainant/opposite party no. 2 and Debabrata
Banik recorded under Section 161 Cr.P.C., clearly show that the
petitioners have repaid a total amount of Rs. 40,00,00,00/- (Rupees
Forty lacs). Rs. 20,00,00,00/- (Rupees Twenty Lacs) by demand draft
and Rupees 20 Lacs in cash. The receipt of the said amount has been
admitted by the opposite party no. 2 (complainant) and the said
Debabrata Banik.
Admittedly at the time of agreement an amount of Rupees thirty
nine (39) Lacs had been paid by the complainant to the petitioners.
The statement of the opposite party no. 2 shows that he has
been paid the entire amount due on 03.09.2018. Admittedly, part
payment was made on 11.06.2018. Inspite of the said development
initial charge sheet was filed on 30.06.2018.
The statements of the opposite party no. 2/complainant and
Debabrata Banik show that they are not interested in proceeding with
the case as the dispute between the parties has been settled on refund
of the total amount due. In addition a sum of rupees One Lakh more
was paid. Total a sum of Rupees 40 lacs was paid against an
outstanding amount of rupees 39 lacs.
It is clear that the dispute between the parties was a private
dispute relating to purchase of a property. Time was the essence of the
contract. And as the parties could not perform their part of the contract
the contract failed.
The amount paid as advance was repaid by the accuseds on
30.06.2018. A supplementary charge sheet has been filed on 19th
July 2020, in spite of the fact that the complainant and Debabrata
Banik have both clearly stated that they have been paid the total
amount due on 03.09.2018 along with an additional sum of Rs. One
lakh.
The following rulings are relied upon by this Court considering the facts
and circumstances of the case herein:-
(1) (2012) 10 Supreme Court Cases, 303.
(2) (2018) 3 Supreme Court Cases, 290.
The Three Judge Bench of the Court in (2012) 10 Supreme Court
Cases, 303, Gian Singh vs State of Punjab and another has cleared the
position in respect of the power of the High Court in quashing a criminal
proceedings in exercise of its inherent jurisdiction in para 61 of the judgment,
which is reproduced here in:-
"The position that emerges from the above discussion can be
summarised thus : the power of the High Court in quashing a
criminal proceeding or FIR or complaint in exercise of its
inherent jurisdiction is distinct and different from the power
given to a criminal court for compounding the offences under
Section 320 of the Code. Inherent power is of wide plenitude
with no statutory limitation but it has to be exercised in
accord with the guideline engrafted in such power viz. : (i) to
secure the ends of justice, or (ii) to prevent abuse of the
process of any court. In what cases power to quash the
criminal proceeding or complaint or FIR may be exercised
where the offender and the victim have settled their dispute
would depend on the facts and circumstances of each case
and no category can be prescribed. However, before exercise
of such power, the High Court must have due regard to the
nature and gravity of the crime. Heinous and serious
offences of mental depravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even though the
victim or victim's family and the offender have settled the
dispute. Such offences are not private in nature and have a
serious impact on society. Similarly, any compromise
between the victim and the offender in relation to the
offences under special statutes like the Prevention of
Corruption Act or the offences committed by public servants
while working in that capacity, etc.; cannot provide for any
basis for quashing criminal proceedings involving such
offences. But the criminal cases having overwhelmingly and
predominatingly civil flavour stand on a different footing for
the purposes of quashing, particularly the offences arising
from commercial, financial, mercantile, civil, partnership or
such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family disputes
where the wrong is basically private or personal in nature
and the parties have resolved their entire dispute. In this
category of cases, the High Court may quash the criminal
proceedings if in its view, because of the compromise
between the offender and the victim, the possibility of
conviction is remote and bleak and continuation of the
criminal case would put the accused to great oppression and
prejudice and extreme injustice would be caused to him by
not quashing the criminal case despite full and complete
settlement and compromise with the victim. In other words,
the High Court must consider whether it would be unfair or
contrary to the interest of justice to continue with the criminal
proceeding or continuation of the criminal proceeding would
tantamount to abuse of process of law despite settlement
and compromise between the victim and the wrongdoer and
whether to secure the ends of justice, it is appropriate that
the criminal case is put to an end and if the answer to the
above question(s) is in the affirmative, the High Court shall
be well within its jurisdiction to quash the criminal
proceeding."
In Anita Maria Dias & Anr. vs The State of Maharashtra & Anr.
(2018) 3 SCC 290.
The Court held:-
(a) Offences which are predominant of civil character,
commercial transaction should be quashed when parties
have resolved their dispute.
(b) Timing of settlement would be crucial for exercise of power
or declining to exercise power (stage of proceedings).
In the present case it is clear that the dispute between the
parties was for sale of a property and the advance given was
allegedly not being returned on the contract having failed.
The petitioners are senior citizens aged about/more than 72
years. The ingredients required to constitute the offences as
alleged against the petitioners have not been prima facie proved
during investigation. There is no materials in the case diary to
show that the ingredients required to constitute the offences as
alleged are present. As such there is no prima facie case of any
cognizable offence being committed by the petitioners, and to let
the proceedings continue would be an abuse of the process of
law/Court.
The petitioner no. 1 is a mother, whose son lives abroad and
the petitioner no. 2 is her brother in law, also a senior citizen.
The senior citizens in our lives need our care and with
respect also our guidance and support regarding their total welfare.
More so, those who are left alone to spend their remaining days,
missing the warmth of a family that disintegrated with time.
Children moving out for better opportunities and then progressing
to set up their own families elsewhere leaving behind the guardians
with only their memories. Seniors/guardians who sheltered their
growing up years with unconditional love and guidance.
The hollow (empty) feeling of living alone cannot be
described in words.
To live a life, without the close comfort of family members,
requires tremendous effort to carry on without any expectation and
accept it, till one finally gives up.
It is for all of us, (who too apprehend such future) to pay
extra attention and care to the tired hearts nurturing generations.
Such kind of cases should be resolved at the earliest instead of
burdening the courts and also the public. The role of the
police/investigating agency was to assist in the matter when it was
being settled. The offences alleged being compoundable. Instead the
police and investigating agency in spite of there being no prima
facie materials on record and the matter having been settled (on
30.06.2018) proceeded to file a supplementary charge sheet (on
19.07.2020) against the senior citizens/petitioners.
The concerned police officers have been heard through the state.
A report as called for has been submitted and made part of the record.
In the present case,the materials on record and the facts and
circumstances in the present case clearly show that the dispute
between the parties was private in nature and the parties have resolved
their entire dispute and as such the possibility of conviction is remote
and bleak and continuation of the criminal case would put the
accuseds/petitioners to great oppression and prejudice and extreme
injustice could be caused to them by not quashing the criminal case,
despite full and complete settlement and there being no ingredients to
constitute a prima facie case against the petitioners of the offences as
alleged, on record. As such this court is of the view that it would be
unfair and contrary to the interest of justice to continue with the
criminal proceedings which would tantamount to abuse of process of
law in view of the settlement between the parties in respect of their
dispute (as per statements in the case diary) and to secure the ends of
justice it would be prudent to quash the proceedings in the case as
prayed for.
The present status of the case before the Trial Court it that
chargesheet has been filed and cognizance has been taken, and it is
presumed that trial might have not commenced as yet.
Accordingly, the revisional application being CRR 121 of 2019
is allowed.
Proceedings being G.R. Case No. 393 of 2017 pending before the
Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24
Parganas, in connection with Bidhannagar Police Station Case No.
92/17 dated 16.05.2017 under Sections 420/406/120B of the Indian
Penal Code is hereby quashed.
All connected Application stand disposed of.
Interim order if any stands vacated.
There will be no order as to costs.
A copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
