Nilotpaul Choudhury vs The State Of Assam And Anr
2022 Latest Caselaw 2152 Gua

                                                                   Page No.# 1/6

GAHC010040512022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./176/2022

            NILOTPAUL CHOUDHURY
            S/O SRI SUNANDA KUMAR CHOUDHURY, R/O 18/6, HILL SIDE ROAD, NEW
            SARANIA, GUWAHATI, PIN-781003, DIST- KAMRUP(M), ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:RANJAN BORKAKOTI
             S/O LATE JATINDRA NATH BORKAKOTI
             R/O SECTOR 2
             BYE LANE NO. 7
             CHALIHA NAGAR
             CHANDMARI
             P.S. AND DIST-TINSUKIA
             PIN-786146
            ASSA

Advocate for the Petitioner   : MR. D J DAS

Advocate for the Respondent : PP, ASSAM
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                                    BEFORE
                   HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

16.06.2022

Heard Mr. D. J. Das, learned senior counsel representing the petitioner as well as Mr. A. M. Bora, learned senior counsel appearing for the respondent no. 2 and Mr. D. Das, learned Additional Public Prosecutor, Assam.

2. This is an application under Section 482 of the CrPC praying for quashing of the FIR in respect of Chandmari P.S. Case No. 444/2015 under Sections 428/406 of the IPC, as well as the Charge Sheet No. 13 dated 02.02.2018 in respect of GR Case No. 7291/2015.

3. The prosecution story lies within a short campus. The petitioner is a builder. He sold one flat to a person called Arindam Kishore Das on the basis of an Agreement for Sale. The petitioner took a part of the price but since Arindam Kishore Das could not pay the entire price, the petitioner did two things. Firstly, he sold the flat to the respondent no. 2 after taking full price. Thereafter, the petitioner filed one civil suit praying for cancellation of his Agreement for Sale with Arindam Kishore Das .

4. In spite of all these, the petitioner could not hand over the possession of the flat to the respondent no. 2 and, therefore, the respondent no. 2 lodged an FIR before Police alleging that the petitioner has cheated him.

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5. In order to buttress his point, the learned counsel Mr. Das has relied upon a decision of the Supreme Court that was delivered in Dalip Kaur and others vs. Jagnar Singh and another, reported in (2009) 14 SCC 696.

6. Per contra, Mr. Bora, the learned counsel for the respondent no. 2, has relied upon a decision of the Supreme Court that was delivered in Saranya vs. Bharathi and others, reported in (2021) 8 SCC 583.

7. I have given my anxious consideration to the submissions made by the learned counsels for both the sides.

8. The judgment relied upon by Mr. Das was delivered upon a different situation and, therefore, it is not applicable in the present case.

9. Sections 405 and 415 of the Penal Code defining "criminal breach of trust" and "cheating" respectively read as under:

"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'.

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'."

10. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract Page No.# 4/6

does not constitute an offence of cheating.

11. The ingredients of Section 420 of the Penal Code are:

" (i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."

12. In the case in hand, the respondent no. 2 did not have the knowledge that the petitioner had an agreement to sell the flat to Arindam Kishore Das. Without having such a knowledge, the respondent no. 2 had purchased the flat from the petitioner. He would not have done that unless he was induced by the petitioner. So, it is clear that at the very beginning of the transaction with the respondent no. 2, the petitioner had a criminal intention.

13. The power under Section 482 of the CrPC is meant to prevent abuse of the process of the court and to prevent miscarriage of justice. It is a settled position of law that the power under Section 482 of the CrPC is to be sparingly used by the High Court.

14. In State Of Haryana And Orsvs Ch. Bhajan Lal And Ors reported in 1992 Supp (1) SCC 335 , the Hon,ble Supreme Court has held ---

"102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

15. In paragraph 41 of Vineet Kumar and others v State of Uttar Pradesh, reported in(2017) 13 Page No.# 6/6

SCC 369, the Supreme Court has held-

"41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. BhajanLal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. BhajanLal, which is to the following effect : (SCC p.379,para

102)

102 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

16. Thus, the law is very clear. In the present circumstances of the case, there is no scope for exercising the power under Section 482 of the CrPC. Therefore, the present application stands dismissed and disposed of.

JUDGE

Comparing Assistant