Prantosh Chakroborty v. Manoj Kumar Chakraborty — 1991 DIGILAW 146 (CAL)

JUDGMENT J.N. Hore, J. 1. BOTH the matters arise out of the same proceeding being Case No. C 1556 of 1987 under sections 120-B/420/468/471, Indian Penal Code pending before the learned Metropolitan Magistrate, 17th Court, Calcutta and they have been heard together and this judgment will govern both. 2. ON August 20, 1987, the O.P. Manoj Kumar Chakraborty, Managing Director, Nirala Properties Private Limited, filed a petition of complaint before the Chief Metropolitan Magistrate, Calcutta against Smt. Anima Basu, Smt. Hanshi Mukherjee (petitioners in Cr. Rev. No. 1670 of 1987) and Sri Prantosh Chakraborty (petitioner in Cr. Rev. No. 1669 of 1987) alleging commission of offences under sections 120;-B/ 420/380/468/471 of the Indian Penal Code. In the said petition of complaint it was inter alia alleged as follows: The complainant was the Managing Director of Messrs. Nirala Properties Private Ltd., with its registered office at Room No. 8-D and 8-B, Commerce House, 2-A, Ganesh Chandra A venue, Calcutta-B. The said Company carried on multifarious business including the purchase, taking on lease or otherwise acquiring and disposing of land and house properties. The accused NO.1 was a Director and the accused No.2 the Governing Director of Messrs. Circular Investment Trust Private Ltd. having its registered office at 2, Sarat Bose Road. The accused No.3 Prantosh Chakraborty was formerly a trustworthy employee of the petitioner's company and was entrusted with all papers, documents, files, vouchers including bank pass book and blank papers with signatures of the Managing Director during his tenure of service in the company for a period of four years or so. Messrs. Circular Investment Trust owned two adjacent three storied buildings at 40-A and 40-B Temple Road, Calcutta. The accused Nos. 1 and 2 having found that the aforesaid two premises were incurring heavy losses due to low income thereon, had decided to sell the two properties with tenants on as is where is basis. ON or about 4th December, 1985, the accused No.3 had brought the accused Nos. 1 and 2 to the complainants office when the accused Nos. 1 and 2 had held out that they were desirous of selling aforesaid properties, and were willing to sell the same to the complainants company. ON December 7, 1985 the Complainant along with others including the accused No.3, Prantosh Chakraborty had been to premised No. 40-A and 40-B, Lake Temple Road, Calcutta for inspecting The said premises. 1 and 2 had held out that they were desirous of selling aforesaid properties, and were willing to sell the same to the complainants company. ON December 7, 1985 the Complainant along with others including the accused No.3, Prantosh Chakraborty had been to premised No. 40-A and 40-B, Lake Temple Road, Calcutta for inspecting The said premises. Both the accused Nos. 1 and 2 were also present. Thereafter the complainant had been to the office of the accused Nos. 1 and 2 and inspected the relevant documents. ON December 10, 1985 the accused Nos. 1 and 2 had visited the complainants office with Xerox copies of documents including title deeds and had intimated their desire to finalise their terms on 14-12-1985. ON December 14, 1985 the terms and conditions were agreed upon and draft copies of the same had been sent to the accused Nos. 1 and 20n 16-12-1985. ON 18-12-1985 the complainant had received the said draft copies through the accused No.3. The agreement for sale had been executed on December 20, 1985 and a sum of Rs. 50,000/- was paid by the Complainants Company in favour of Circular Investment Trust as earnest money. The complainant had been allured to purchase the said properties for a sum of Rs. 4,00,000/- being induced by the representation made by the accused persons and considering the deal a very lucrative one. The complainant had started negotiating with the tenant for getting vacant possession of the flats, and managed to procure vacancy of the entire first floor flat at 40-B Temple Road in occupation of Sri Niladri Chatterjee by making payment of Rs. 25,000/- in cash and thereafter acquired vacant possession of another flat on the second floor at 40-B, Lake Temple Road by making payment of Rs. 25,000/- by account payee cheque to Smt. Dipti Sen, wife and constituted attorney of the tenant, Sanjoy Sen. The complainant had started to have the title properly investigated and incurred huge expenses in the matter. Thereafter, the complainant's solicitors had in a letter, dated 25-6-1987 enclosed a draft conveyance along with a demand for the Income Tax Clearance certificate from Messrs. Circular Investment Trust. ON May 7, 1987 the complainant had gone to Alipore Court with a brief case containing a file relating to the above property, and various other papers and letter-head of the company. Circular Investment Trust. ON May 7, 1987 the complainant had gone to Alipore Court with a brief case containing a file relating to the above property, and various other papers and letter-head of the company. The aforesaid brief case had been stolen from his car and a G.D. Entry to that effect had been lodged with Alipore Police Station. Pursuant to the theft of the said file the complainant had handed over the original documents relating to the said property to the accused No.3 and had directed him to make Xerox copies of the same. The accused No.3 after taking the said original documents had been absenting himself from work without any explanation. About a month after his solicitors had written to the Circular Investment, the petitioner was shocked to learn through his Solicitors that Advocate Sri Samar Kumar Basu had addressed a letter, dated July 20, 1987 to his Solicitors returning the draft conveyance and intimating that the aforesaid contract for sale of those property had been cancelled by the accused Nos. 1 and 2, for alleged violation and default on the part of the complainant, and the same had been confirmed by exchange of letters, dated 30-4-1987, and the earnest money of Rs. 50,000/- had been returned to the complainant by a cheque. The complainant had been surprised as there had been no such exchange of letters nor had the agreement been cancelled. The complainant on enquiry learnt from his Bankers that Rs. 50,000/- had been deposited in his Bank account. The complainant further discovered that the accused No.3, Prantosh Chakraborty had been engaged in a construction project of the accused No.2 and found that the original documents handed over to the accused No.3 were not to be traced. The complainant alleged that all the aforesaid accused persons conjointly and in conspiracy and collusion with each other committed theft of those valuable documents from the registered office of the petitioners company and getting hold of the said original documents forged, manufactured and fabricated documents and used those forged documents to their benefit to sustain a claim causing wrongful loss to the complainant to the extent of Rs. 5,000/- as the accused No.2 on 18-2-1986 received a further sum of Rs. 5,000/- as the accused No.2 on 18-2-1986 received a further sum of Rs. 5,000/ by Cheque No. N40/1001807322 drawn on State Bank of India, Ballygunge Branch from the complainant against the said transaction of sale and the same date another amount of Rs. 5,000/by A/c. Payee Cheque drawn on Central Bank of India, Ballygunge Branch. 3. BY an order, dated August 20, 1987, the learned Chief Metropolitan Magistrate, Calcutta was pleased to take cognizance and thereafter transfer the case to the learned Metropolitan Magistrate, 17th Court, Calcutta for enquiry or trial. 4. THE complainant examined himself on August 20 and 21, 1987 and another witness Santosh Kumar Moitra on August 21, 1987. The learned Metropolitan Magistrate, 17th Court, Calcutta, after recording the same and perusing the petition of complainant and other documents was pleased to issue summons under sections 120-B/420/468/471 of the Indian Penal Code. The three accused persons in the said proceeding have preferred these two revisional cases under Section 482, Criminal Procedure Code for quashing the impugned proceeding. In the Criminal Revisional Case No. 1670, the case of the petitioners is that the entire complaint is based on falsehoods and has been lodged mala fide with a view to bringing pressure upon them to sell the disputed properties after the complainant himself had desired to cancel the agreement for sale. The complainant did not perform his part of the contract within the stipulated time and cancelled the contract and the earnest money of Rs. 50,000/- was refunded: The complainant seeks to enforce a civil claim through the criminal process and the same, if permitted to continue, would amount to an abuse of the process of Court. The allegations in the complaint do not disclose commission of any offence by the accused petitioners. At best they raise a civil dispute and the impugned proceeding is, therefore, liable to be quashed. In Criminal Revision No. 1669 of 1987, the accused-petitioner Prantosh Chakraborty has alleged that the complaint has been launched mala fide with a view to harassing the petitioner and unless the same is quashed, the process of Court would be permitted to degenerate into a weapon of oppression and prosecution. The petitioners case is that he is a very minor shareholder of Messrs Nirala Properties Pvt. Ltd. and owns only 10 shares. The petitioners case is that he is a very minor shareholder of Messrs Nirala Properties Pvt. Ltd. and owns only 10 shares. He is aperinanent employee of the Central Glass Ceramic Research Institute for over 19 years and he was never employed by Messrs Nirala Properties or by Smt Hanshi Mukherjee and Smt Anima Basu. 5. MR. Roy, learned Advocate for the petitioners in Criminal Revision No. 1670 of 1987 has contended that the complaint does not disclose the commission of the offences alleged and the dispute between parties is essentially of a civil nature and the present proceeding is oppressive in nature and was initiated with the object of exerting pressure upon the petitioners to execute a deed of conveyance in respect of the disputed properties in favour of the O.P. It has been contended that further continuance of the impugned proceeding would amount to an abuse of the process of Court and the impugned proceeding is liable to be quashed even at this early stage. MR. Dutta, learned Advocate for the petitioner, in Criminal Revision No. 1669 of 1987 has adopted the said contentions. He has added that the petitioner in Criminal Revision No. 1669 of 1987 was not an employee of the opposite party. It has been contended on behalf of the O.P. that the complaint discloses commission of the offences alleged and at this initial stage the truth or falsehood of the allegations cannot be ascertained by appreciation of the evidence that has been placed before the Court and the impugned proceeding is not liable to be quashed at this stage and the complainant should be given an opportunity to prove the allegations against the petitioners. 6. SECTION 482 of the Criminal Procedure Code empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. It is well settled that the exercise of the inherent power to quash the proceedings instituted on complaint is called for only where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. In Mrs. Dhanalakshmi v. R. Prosanna Kumar and others; the Supreme Court has observed as follows: SECTION 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In Mrs. Dhanalakshmi v. R. Prosanna Kumar and others; the Supreme Court has observed as follows: SECTION 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If, the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under section 482. It is not, however, necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. In Kewal Krishan v. Suraj Bhan and another; the Supreme Court has held that at this stage of Sections 203 and 204, in a case exclusively by the Court of Session, all that the Magistrate has it do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under sections 200 and 202, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is sufficient ground for proceeding against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial Court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. Even at the stage of framing charges, the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial is not to be meticulously judged. Even at the stage of framing charges, the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before the finding the accused guilty or otherwise, is not exactly to be applied at this stage of framing charges. A fortiori, at this stage of sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. In State of Karnataka v. L. Muniswamy and others;, the Supreme Court has held that in the exercise of the wholesome power under section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of Court or that the ends of justice require the proceedings ought to be quashed. For the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. In a recent case of Niranjan Singh Karam Singh Panjabi,4 the Supreme Court has held that at the stage of framing the charge, the Court is required to evaluate the materials and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Supreme Court has further held that the Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. The Supreme Court has further held that the Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. In Madhvrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, the Supreme Court has similarly held that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. The Supreme Court has further observed that it is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case also, quash the proceeding even though it will be at preliminary stage. From the above it is clear, therefore, that while considering whether the uncontroverted allegations prima facie establish the offence, the Court is not bound to accept allegations which are even opposed to commonsense and the broad probabilities and because of the special features in a case if the Court is of the opinion that chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court while taking into consideration the special facts of a case may quash the proceeding even though at a preliminary case. 7. KEEPING the above in view, let me now consider whether the complaint, the initial deposition and uncontroverted document) prima facie disclose the commission of the offences alleged and whether further continuance of the proceeding would be an abuse of the process of the Court. At the outset I may set out some admitted facts. 7. KEEPING the above in view, let me now consider whether the complaint, the initial deposition and uncontroverted document) prima facie disclose the commission of the offences alleged and whether further continuance of the proceeding would be an abuse of the process of the Court. At the outset I may set out some admitted facts. By a letter dated September 20, 1985 (Annexure A) the opposite party on behalf of Nirala Properties offered to purchase the disputed premises at 40-A and 40-B, Lake Temple Road. In reply the petitioner No.1 on behalf of the Circular Investment by a letter, dated 23rd September, 1985 expressed willingness to sell the said property and the price of that property was quoted as Rs. 4,00,000/-. Thereafter, negotiations between the parties were carried on. There was inspection of the premises by the O.P. The title deeds were inspected and copies of the same were taken from the petitioners. Both the parties act through their respective Solicitors. A deed of agreement was executed by and between the parties on December 20, 1985. The said agreement for sale is Annexure C. The price of the property was settled at Rs. 4,00,000/- and a sum of Rs. 50,000 was paid by the O.P. to the petitioners as earnest money. As per terms of the agreement, the vendor shall deliver to the purchaser Solicitors or Advocate, title deeds of the disputed premises for examination of title within? days from the date of the agreement. The purchaser Solicitors shall within one month from the delivery of all necessary documents of title inform the vendor through their Solicitor/Advocate approval or non- approval of the title of the vendor. The sale in respect of the property shall be completed within a period of six months when the vendor shall execute and cause to be registered at the costs of the purchaser or his nominee a proper conveyance of the said property agreed to be sold wherein all necessary parties shall join and the purchaser shall pay the balance of the purchase money and for this, the time as stated herein shall be the essence of the contract. If the title be not made but as aforesaid, the vendor shall refund the earnest money on demand and a sum of Rs. 500/- being the amount of settled cost for investigation of title. If the title be not made but as aforesaid, the vendor shall refund the earnest money on demand and a sum of Rs. 500/- being the amount of settled cost for investigation of title. If the purchaser or his nominee fails to complete the purchase after the title is made out as aforesaid and the vendor is ready as aforesaid to execute the conveyance, either the earnest money will be forfeited by the vendor at his option as liquidated damages or the vendor will be at liberty to sue for specific performance of this contract. If, on the title being made out as aforesaid the purchaser is ready to purchase, but the vendor fails to execute a proper conveyance, then it will be optional for the purchaser or his nominee either to get a refund of the earnest money paid with interest at the rate of 1870 per annum and also to get all costs of investigation of title or to sue for specific performance of this contract for sale. The O.P. failed to perform his part of the contract within the stipulated period of six months from the date of agreement i.e. 20-6-1986. By a letter dated July 22,1986 the opposite party requested the petitioners for extension of time as mutually agreed upon inasmuch as due to some unavoidable circumstances the company could not complete the deed of conveyance within the stipulated time. It appears that the petitioner ignored the request. About one year after the expiry of the stipulated time the opposite party through their solicitors expressed readiness to complete the purchase after being satisfied about the title of the petitioners to the disputed premises and sent a draft conveyance for approval of the petitioner. The petitioners were also asked to take step for obtaining certificate under section 230-A of the Income Tax Act, 1961 and furnish the O.P. with a copy thereof. The said letter is Annexure TGT. The reply to the said letter was sent on July 20, 1987 (Annexure H) wherein it was stated that because of the failure and neglect on the part of the O.P to comply with the terms and conditions of the agreement, the agreement for sale was cancelled by a letter dated April 30, 1987 and a cheque for Rs. The reply to the said letter was sent on July 20, 1987 (Annexure H) wherein it was stated that because of the failure and neglect on the part of the O.P to comply with the terms and conditions of the agreement, the agreement for sale was cancelled by a letter dated April 30, 1987 and a cheque for Rs. 50,000/- being No. 765934 on Indian Bank, Sarat Bose Road Branch was sent to the opposite party towards refund of the earnest money against cancellation of, the agreement dated 20-12-1985. It is disclosed in the letter that the O.P. by a letter dated May 2, 1987 duly acknowledged the petitioners letter dated April 30, 1987 and confirmed the cancellation of the said agreement dated December 20, 1985 acknowledging the receipt of the cheque for Rs. 50,000/- which was duly enchased by the O.P. By the said letter the O.P. also returned to the petitioners the documents of the title relating to the property. In these circumstances the draft conveyance was returned. The alleged letter of the O.P. dated May 2, 1987 confirming cancellation and acknowledging receipt of the cheque for Rs. 50,000/- is Annexure TFT. The genuineness of this letter is challenged by the O.P. It may be mentioned here that the O.P. has since filed a suit for specific performance of contract which is still pending. 8. THE petition of complaint and the initial deposition do not prima facie disclose the commission of offence punishable under section 420, Indian Penal Code. The facts stated above clearly show that there was no false representation with the intention of deception on the part of the petitioners. There was inspection of the premises. The O.P. was satisfied upon investigation about the title and possession of the petitioners. No document of title or possession was withheld by the petitioners. The agreement for sale was entered into by the O.P. after negotiation and acceptance of the price. It was the O.P. who failed to perform their pan of the contract within the stipulated time and even then instead of forfeiting the earnest money of Rs. 50,000/-; the entire amount was refunded by the petitioners. It is essentially a dispute of civil nature. There is no dispute that a cheque for Rs. 50,000/- issued by the petitioners was an enchased and credited to the account of the O.P. long before the O.Ps. 50,000/-; the entire amount was refunded by the petitioners. It is essentially a dispute of civil nature. There is no dispute that a cheque for Rs. 50,000/- issued by the petitioners was an enchased and credited to the account of the O.P. long before the O.Ps. letter dated 25th June, 1987 (Annexure TGT). The complainants allegation that this cheque was surreptitiously credited to the account of the O.P. without his knowledge. The allegation is entirely opposed to commonsense and broad probabilities. It is pertinent to point out that even after knowledge of the credit of the said amount to his account and the receipt of the letter of the petitioners (Annexure THT) dated July 20, 1987, the O.P. remained silent till filing of the complaint and did not approach the petitioners and did not refund the said amount of Rs. 50,000/-. The O.P. has been enjoying the said amount of Rs. 50,000 for about 5 years. The question whether the time was essence of the contract or not, need not be decided here but the petitioners could reasonably refuse to refund the earnest money of Rs. 50,000 on the terms and conditions of the agreement in dbona fide belief that under the agreement the said amount could be forfeited. But the fact that the petitioners refunded the earnest money of Rs. 50,000/- suggest that there was some previous understanding between the parties about cancellation of the contract which is also prima facie borne out by the petitioners letter dated April 30, 1987 sent to the O.P. (Annexure F) wherein it is stated that as per the discussions and understanding between the parties the cheque of Rs. 50,000/- was issued towards refund of the earnest money against cancellation of the agreement dated 20-12-1985. The letter dated May 2, 1987 (Annexure TFT) is in the printed letter head of Nirala Properties and the signature of the O.P. is not disputed. 50,000/- was issued towards refund of the earnest money against cancellation of the agreement dated 20-12-1985. The letter dated May 2, 1987 (Annexure TFT) is in the printed letter head of Nirala Properties and the signature of the O.P. is not disputed. The complainant's allegation that blank letter heads containing signatures of the O.P. were stolen by the accused No.3 who is the petitioner in Criminal Revision No. 1669 bf 1987 in collusion with the petitioners and was converted into the letter in question and that the forged document was soughtlo be utilised to prove cancellation of the agreement so as to avoid the liability of the petitioners to execute a conveyance in favour of the O.P. appears to be, in the facts and circumstances of the case inherently, improbable. Since the O.P. failed to perform his part of the contract long after the stipulated period and the request for extention of time was not acceded to by the petitioners, the petitioners might have refused to execute a conveyance in terms of the deed of agreement and there was no necessity of adopting such dubious means. Upon a careful considerations of the materials on record I have no hesitation in arriving at the conclusion that in all probability the complaint would end in acquittal and that the present prosecution was launched with the oblique purpose of pressuring the petitioners to execute the conveyance even after the stipulated period. The further continuance of the impugned proceeding, in my opinion, be an abuse of the process of Court and the impugned proceeding is liable to be quashed for ends of justice. Before I conclude, I make it clear that none of my observations would in any way affect the decision of the question in Civil Court as to whether the O.P. is entitled to specific performance of the contract even after the stipulated time. 9. IN the result, both the revisional applications are allowed and the impugned proceeding is quashed. Revision allowed.