Calcutta High Court (Appellete Side)
Anil Bhutoria & Ors vs Thestate Of West Bengal & Anr on 5 September, 2024
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
CRR 1607 of 2023
Anil Bhutoria & Ors.
v/s.
TheState of West Bengal & Anr.
For the Petitioners: Sr. Adv. Sandipan Ganguly,
Adv. Sabyasachi Banerjee,
Adv. Anirban Dutta,
Adv. Priyanka Mukherjee,
Adv. Priyanka Sarkar,
For the Opposite Party No. 2: Adv. Suresh Kumar Sahani,
Adv. Sanjay Banerjee, (through V.C.)
For the State : Adv. Debasish Roy, Ld. P.P.,
Adv. Saryati Datta,
Adv. Sachit Talukdar,
Heard on: 21.08.2024
Date: 05.09.2024
SUVRA GHOSH, J. :-
1) By consent of the parties, the revisional application is taken up for
consideration.
2) Heard learned counsels for the parties.
3) The petitioners who are the directors of M/s. Iceberg Builders Private
Limited seek quashing of proceedings being G.R. Case no. 1403 of
2018 pending before the Learned Metropolitan Magistrate, 9th Court
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Calcutta, presently re-designated as Learned Judicial Magistrate, 9th
Court Calcutta.
4) Learned counsel for the first and second petitioners submits that the
complaint has been lodged after an inordinate and unexplained delay
of about eight years. The petitioners' company entered into an
agreement for sale with the private opposite party on 9th September,
2009 in respect of the plot in question in terms of which the total
consideration was decided at Rs. 1,20,00,000/-. The opposite party
was liable to pay Rs. 45,00,000/- initially, Rs. 20,00,000/- on or
before 30th June, 2010, Rs. 20,00,000/- on or before 31st December,
2010, another Rs. 20,00,000/- on or before 30th June, 2011 and the
remaining amount of Rs. 15, 00,000/- upon receipt of intimation in
writing of completion of the plotting, in terms of clause 9 of the
agreement. Clause 13 of the agreement demonstrates that if the
purchaser/opposite party failed to make payment as specified in the
third schedule or failed to make payment of any one instalment within
the stipulated time frame, the owner/developer would be entitled to
cancel/rescind the agreement or in the alternative condone such
default upon charge of 2 % per month on the outstanding amount
compounded monthly. After initial payment of Rs. 45,00,000/- the
opposite party failed to make payment of the balance sum and sought
to lodge the present complaint on false and frivolous grounds with
malicious intention. Charge sheet has been submitted against the
petitioners mechanically for offence under sections 120B/420/406 of
the Indian Penal Code. The case pertains to the agreement and failure
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of the opposite party to pay the balance consideration, the dispute
being purely civil in nature.
5) Learned counsel for the third petitioner has submitted that this
petitioner was a minor at the relevant time and no case under section
120B/420/406 of the Indian Penal Code has been made out against
him during investigation. There is no evidence to suggest that the plot
in question was sold out to others for non-payment of the balance
consideration by the opposite party. Since the civil remedy available to
the opposite party was barred by limitation, the opposite party chose
to lodge the present complaint on absolutely false and frivolous
grounds.
6) Learned counsels have placed reliance on the authorities in
Nageshwar Prasad Singh v/s. Narayan Singh and Another reported in
(1998) 5 Supreme Court Cases 694, Murari Lal Gupta v/s. Gopi Singh
reported in (2005) 13 Supreme Court Cases 699 and Ram Biraji Devi
and Another Umesh Kumar Singh and Another reported in (2006) 6
Supreme Court Cases 669 in support of their contention.
7) Learned counsel for the private opposite party/defacto complainant
has candidly submitted that allegation under section 406 of the Indian
Penal Code does not lie against the petitioners.
8) Learned counsel has taken this Court to an order passed by a co-
ordinate Bench of this Court on 17th June, 2022 in W.P.A. 11446 of
2020 wherein this Court directed the Officer-in-charge, Park Street
Police Station to take steps to conclude the investigation within a
period of three months from the date of communication of the order.
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9) According to the private opposite party the petitioners failed to register
the sale deed despite repeated communications made to them and
payment of Rs. 45,00,000/- in terms of the agreement. The petitioners
had the intention of cheating the opposite party right from inception of
the agreement and deliberately failed to act in terms of the agreement.
10) Learned counsel for the private opposite party has placed reliance on
the authorities in Supriya Jain v/s. State of Haryana and Another
reported in (2023) 7 Supreme Court Cases 711, R. Nagender Yadav
v/s. State of Telangana and Another reported (2023) 2 Supreme Court
Cases 195, K. Jagadish v/s. Udaya Kumar G.S. and Another reported
in (2020) 14 Supreme Court Cases 552, Directorate of Enforcement
v/s. Niraj Tyagi and Others reported in 2024 Supreme Court Cases
OnLine SC 134, Rajesh Bajaj v/s. State NCT of Delhi and Others
reported in (1999) 3 Supreme Court Cases 259, Priti Saraf and
Another v/s. State (NCT of Delhi) and Another reported in (2021) 16
Supreme Court Cases 142, Iridium India Telecom Limited v/s.
Motorola Incorporated and Others reported in (2011) 1 Supreme Court
Cases 74, Abhinandan Jha and Others v/s. Dinesh Mishra reported in
1967 Supreme Court Cases OnLine SC 107 and State of Maharashtra
v/s. Ramdas Shrinivas Nayak and Another reported in (1982) 2
Supreme Court Cases 463 in support of his contention.
11) Learned counsel for the State has referred to paragraph 10 of the
F.I.R. which states that the petitioners allegedly sold out the plot in
question to others and have thereby cheated the complainant. Learned
counsel has also drawn the attention of this Court to the charge sheet
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which records that the petitioners misappropriated the complainant's
money to the tune of Rs. 45, 00,000/- and they were absconding for
which they could not be arrested despite repeated raids and search.
12) I have considered the rival contention of the parties and material on
record.
13) It is not in dispute that the agreement of sale was entered into by and
between the petitioners' company and the private opposite party on 9th
September, 2009 and in terms of the third Schedule of the agreement,
the private opposite party was liable to pay Rs. 45, 00, 000/- initially,
then Rs. 20, 00,000 /- each within 30th June, 2010, 31st December
2010 and 30th June 2011 respectively and the balance amount of Rs.
15, 00,000/- within a month of receipt of intimation of completion of
the plotting by the owners/developer (clause 9 of the agreement). The
conveyance was to be executed thereafter. Admittedly the private
opposite party paid only the initial sum of Rs. 45,00,000/- and did not
pay the three subsequent instalments of Rs. 20,00,000/- each. There
is no document on record to demonstrate that private opposite party
made any endeavour to pay the sum or approached the petitioners for
such payment. Clause 13 of the agreement says that in the event the
purchaser failed to make payment as specified in the third Schedule
or failed to pay any one of the instalments within the stipulated time
frame, the owners/developer would be entitled to cancel/rescind the
agreement or in the alternative condone such default upon charging
2% on the outstanding amount per month compounded monthly.
Since the private opposite party admittedly failed to comply with the
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terms of the agreement, the petitioners were at liberty to
cancel/rescind the agreement, moreso, since the private opposite
party did not approach the petitioners for delayed payment of the
amount upon paying 2 % on the outstanding amount.
14) Though the private opposite party has complained that the petitioners
have sold out/alienated the plots in question long back, no document
has been produced in support of the said contention. The charge sheet
records that despite request of the complainant the accused persons
neither refunded the advance amount of Rs. 45,00,000/-, nor
registered the deed in terms of the agreement. This Court fails to
understand how such conclusion was arrived at by the Investigating
Officer in absence of any evidence in this regard. Though there is
nothing to suggest that the plot was sold out by the petitioners to
others, such sale, if executed upon termination of the agreement due
to non-compliance of its terms by the private respondent, may not
have fallen foul of the contract. Taking queue from the authorities in
Murari Lal Gupta (supra), Nageshwar Prasad Singh (supra) and Ram
Biraji Devi (supra), this Court is inclined to hold that no guilty
intention to deceive the private opposite party/complainant can be
attributed to the petitioners, moreso, since it was the private opposite
party and not the petitioners who failed to honour the agreement.
15) Charge sheet has been submitted in this case under section
120B/420/ 406 of the Indian Penal Code. Section 120B deals with
punishment for the offence of criminal conspiracy which is defined in
section 120A as hereunder:-
"120-A. Definition of criminal conspiracy. - When two or more
persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:"
16) Section 420 deals with cheating and dishonestly inducing delivery of
property. Section 415 defines cheating as follows:-
"415. Cheating.- Whoever, by deceiving any person, fraudulently
or dishonestly induces the person so deceived to deliver any property to
any person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and which act
or omission causes or is likely to cause damage or harm to that person
in body, mind, reputation or property, is said to "cheat"."
17) In the case in hand, no fraudulent or dishonest deception of the
private opposite party is made out either in the complaint or during
investigation. The allegations are bereft of any guilty intention or mens
rea on the part of the petitioners at the inception. The alleged breach
of contract is also attributable to the private opposite party and not
the petitioners.
18) The Hon'ble Supreme Court, in the authority in R. Nagendra Yadav
(supra), has observed that a complaint which discloses civil
transaction may also have a criminal texture and the High Court must
see whether the dispute which is in substance of a civil nature is given
a cloak of a criminal offence. The Hon'ble Court, in the authority in
Supriya Jain (supra) has emphasised on the issue that the Court
should apply the test as to whether the uncontroverted allegations as
made out from the record of the case and the documents submitted
therein prima facie establish the offence or not.
19) In the various authorities relied upon by the private opposite party,
the Hon'ble Supreme Court has held that the power of quashing
should be exercised sparingly with circumspection in the rarest of rare
cases. One of the parameters for quashing of a compliant stated by the
Hon'ble Court is whether the allegations made in the complaint or the
statement of the witnesses recorded in support of the same taken at
their face value make out absolutely no case against the accused or
the complaint does not disclose the essential ingredients of an offence
which is alleged against the accused.
20) There is no quarrel with the said proposition laid down by the Hon'ble
Supreme Court. True, jurisdiction under section 482 of the Code,
should be exercised with extreme care, caution and circumspection
and should not be used to stifle or axe down a legitimate prosecution.
The test is whether the uncontroverted allegations as made out in the
complaint prima facie establish the case and also whether
continuation of such complaint shall amount to abuse of the process
of law.
21) Even at the cost of reiteration this Court is inclined to hold that the
complaint or the attending circumstances of the case do not disclose
any criminal offence, far less an offence under section 120B/420 of
the Indian Penal Code and continuation of such proceeding shall
amount to abuse of the process of law.
22) In the result, the proceeding being G.R. Case no. 1403 of 2018
pending before the Learned Metropolitan Magistrate, 9th Court
Calcutta, presently re-designated as Learned Judicial Magistrate, 9th
Court Calcutta, be quashed.
23) Accordingly, C.R.R. 1607 of 2023 is allowed.
24) The connected application being C.R.A.N. 1 of 2024 is also disposed
of.
25) There shall however be no order as to costs.
26) Urgent certified website copies of this judgment, if applied for, be
supplied to the parties expeditiously on compliance with the usual
formalities.
(Suvra Ghosh, J)
