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2006 DIGILAW 1091 (GAU)

Sudipta Sen v. Abhijit Deb Roy

2006-12-08

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This Criminal Petition which has been registered as a Criminal Revision Petition, has been filed by the petitioner for quashing the criminal proceedings in CR Case No. 673(S)2005 under Section120B/201/468/420/477 IPC pending before the learned Chief Judicial Magistrate, Shillong. 2. Heard Mr. R.P. Sharma, the learned senior counsel for the petitioner assisted by Mr. S.P. Mahanta, the learned Advocate and Mr. L.R. Das, the learned Counsel for the respondents. 3. The material facts of the case are that the petitioner is the Managing Director of M/s Sarada Construction Company Private Limited, which is a private company registered under the Company Act, 1956 and is a resident of Diamond Harbour Road, Opposite Behala Tram Depot, PS. Behala, Kolkata-34, West Bengal. The respondents filed a criminal complaint against the petitioner alongwith three other accused. All the respondents are permanent residents of Shillong, Meghalaya. While the respondent Nos. 1, 2 and 3 are College Teachers in different Colleges of Shillong, the respondent No. 4 is a Central Government employee. The respondent No. 5 is serving in a corporate house while the respondent No. 6 is a housewife by occupation. On the death of the respondent No. 5, his son stepped into his shoes and continued the case as the legal heir of the deceased respondent No. 5. The case of the respondents is that sometime in the year 1991, an Association under the name and style of Ram Thakur Abasan Association ("Association" for short) was founded by some employees of the State Bank of India for preparing a master plan of developing plots of land at Poilan, 24 Parganas (S), for which one M.K. Nandi, a former employee of the State Bank of India, Shillong Main Branch was engaged on behalf of the Association for distributing and collecting membership fees. The Association was subsequently converted into a Private Limited Company in which the accused Nos. 2 and 3 are holding the post of Directors. The Association came to be registered as Ram Thakur Abasan Limited. According to the respondents, on being induced, they became members of the Association on payment of Rs. 525/- and were also made to pay a further sum of Rs. 6000/- by each of them towards development costs of the plots of land. The respondents, after becoming the members thereof, made full payment of the cost of the plots by instalments. According to the respondents, on being induced, they became members of the Association on payment of Rs. 525/- and were also made to pay a further sum of Rs. 6000/- by each of them towards development costs of the plots of land. The respondents, after becoming the members thereof, made full payment of the cost of the plots by instalments. The Company thereafter sent registered sale deeds in respect of the aforesaid plots to the respondents but failed to hand over actual possession thereof till date. It is the case of the respondents that the accused Nos. 2, 3 and 4 entered into a criminal conspiracy with the petitioner and most illegally handed over all the assets of the Association including the plots of the respondents to the petitioner on 17.5.2001, a fact which was duly intimated by the remaining accused vide the notice dated 17.5.2001. The respondents by the same notice were also stated to have been asked to attend a meeting on 21.7.2001 at Shillong which was to be attended by the petitioner. It is also the case of the respondents that the petitioner thereafter issued a letter to them giving bogus reasons behind his taking over possession of their plots/assets and visited Shillong on 22.7.2001 and had a meeting at Anupchand High School, Keating Road, Shillong with the respondents and other members of the Association from Shillong. In the meeting, the petitioner was alleged to have made promises to hand over the developed plots to the respondents and to open an office Company at Shillong for coordinating the functioning of the company, which he failed to keep. The petitioner is also alleged to have caused disappearance of vital documents and falsified accounts in order to cheat the complainant and other members. It is the further case of the respondents that the petitioner, the accused Nos. 2 and 3 had called for the AGM of the Association on 17.3.2002 at the camp office at Saradha Gardens of the Company and that in that meeting, the petitioner is said to have deployed his armed henchmen to rowbeat the members present and got several proposals, favourable to him passed in the meeting. This, according to the respondents, was designed to deprive the respondents of their land/money as well as to force them to make further payments without justifiable reason. This, according to the respondents, was designed to deprive the respondents of their land/money as well as to force them to make further payments without justifiable reason. It is thus alleged by the respondents that the aforesaid acts of commissions or omissions constitute the offences punishable under Section 120B/201/468/420/477A of the IPC. 4. On the basis of the aforesaid complaint, the learned Judicial Magistrate, First Class, Shillong proceeded with the case, examined the respondents on oath, took cognizance of the offences and issued processes against the petitioner. The petitioner accordingly appeared before the learned Magistrate through his counsel and requested the learned Magistrate to supply a copy of the complaint petition as well as the deposition of the respondents, but the learned Magistrate refused to do so whereupon the petitioner approached this Court in Criminal Misc Case No. 8 (SH) 2005. This Court, by the order dated 16.11.2005 disposed of the application and directed the respondents as well as the learned Magistrate to supply the copies of the complaint petition and the depositions. The order was duly complied with by the learned Magistrate. It is clear that after receiving a copy of the complaint petition and the deposition, the petitioner was of the view that there was no prima facie case against him and accordingly approached this Court again by this petition. The contention of the petitioner is that he never entered into an agreement or made any conspiracy alongwith the remaining accused or came to Shillong to explain the terms and conditions and the motto of Sarada Construction Company Private Limited and had not illegally taken over the plots of the respondents. The petitioner further contends that the plots in question were registered by the Company of the remaining accused for which he had nothing to do and has no link whatsoever with the remaining accused. Another grievance of the petitioner is that the main culprit, namely, Shri M.K. Nandi who was the Bank official engaged by the Association for distributing and collecting membership fees is not impleaded as an accused in the case. It is also contended by the petitioner that since the properties involved in the case are located at Kolkata, the cause of action can arise only at Kolkata and, therefore, the Court at Shillong has no jurisdiction to entertain the criminal complaint, which is liable to be quashed. 5. It is also contended by the petitioner that since the properties involved in the case are located at Kolkata, the cause of action can arise only at Kolkata and, therefore, the Court at Shillong has no jurisdiction to entertain the criminal complaint, which is liable to be quashed. 5. The principles relating to exercise of jurisdiction under Section 482 of the CrPC to quash complaints and criminal proceedings were recently reiterated by the Apex Court in Indian Oil Corporation v. NEPC India Ltd. and Ors. AIR 2006 SC 2780 , which are as follows: The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings which are relevant for the present purpose are: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a details inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in details, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in details, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 5.1 When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon inquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Court. Judicial process should not be an instrument of oppression, or, needless harassment. Courts should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, this section is not an instrument handed over to an accused to short circuit a prosecution and brings about its sudden death. In other words, the power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution See Zandu Pharmaceutical Works Ltd. v. Mohd. Shareful Hague, 2005 CriLJ 92. The only question to be examined by me then in this case is as to whether on facts disclosed in the petition of complaint, the offences under Section 120B/201/468/420 and 477 IPC are made out. The power should be used sparingly and with abundant caution See Zandu Pharmaceutical Works Ltd. v. Mohd. Shareful Hague, 2005 CriLJ 92. The only question to be examined by me then in this case is as to whether on facts disclosed in the petition of complaint, the offences under Section 120B/201/468/420 and 477 IPC are made out. In so far as Section 201 IPC is concerned, the only allegation of the respondents to nail the petitioner as found in paragraph 8 is that soon after taking possession, the petitioner caused disappearance of vital documents and falsified accounts in order to cheat the complainant and other members. What are those vital documents which have been caused to disappear by the petitioner are not mentioned. Similarly, the particulars of the accounts which are alleged to have been falsified by the petitioner to cheat the respondents are also not specified. Coming now to Section 468 IPC which is an offence of forgery for the purpose of cheating, no where in the complaint petition is mentioned the documents which were alleged to have been forged by the petitioner. Then comes Section 477A, which is an offence of falsification of accounts. As noted earlier, the complaint petition is conspicuous by the absence of the accounts which are alleged to have been falsified by the petitioner. Coming now to Section 420 IPC, this section is an offence pertaining to cheating and dishonestly inducing delivery of property. To make out an offence under Section 420 IPC, the first and foremost ingredient to be established by the prosecution is that there must be a case of cheating. Section 415 IPC defines the offences of cheating, which is reproduced hereinbelow: 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". 6. 6. The ingredients required to constitute an offence under Section 415 are: (i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) The person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind or property. Each part of the section is independent of the other. However, the common feature in both parts is that there must be deceit practiced by the accused upon the victim. Deceiving, generally, is to lead into error by causing a person to believe what is false or disbelieve what is true. The deception may be by words or by conduct. Whether a person was deceived in any case depends upon the facts and circumstance and evidence in the particular case. In a case of deceit by representation, it is necessary to establish that the accused knew from the very beginning that the representation which he was making to the complainant was false. If the person making the representation honestly believed the representation to be true, there can be no question of cheating, as in such a case, the fraudulent or dishonest intention necessary to constitute the offence would be lacking. 7. In the instant case, the petitioner has been accused of cheating the respondent on the following facts and circumstances. The remaining accused had induced the respondents to become member of the Association on payment of Rs. 525/- each and they were also made to pay Rs. 6000/-each for their respective plots. Thereafter, the Company i.e., Ram Thakur Association Limited had not sent the registered sale deeds to the respondent, but it failed to hand over actual possession of the plots till date. It is worthy of note that, at this stage, the petitioner had not come into the picture at all. The respondents then proceeded to state that the accused Nos. Thereafter, the Company i.e., Ram Thakur Association Limited had not sent the registered sale deeds to the respondent, but it failed to hand over actual possession of the plots till date. It is worthy of note that, at this stage, the petitioner had not come into the picture at all. The respondents then proceeded to state that the accused Nos. 2, 3 and 4 entered into a criminal conspiracy with the petitioner and most illegally handed over all assets including their lands to the petitioner on 17.5.2001 and that the respondents were asked to attend a meeting on 21.7.2001 at Shillong to be attended by the petitioner himself. The petitioner is also alleged to have issued a letter to the respondents giving bogus reasons behind his taking over illegal possession of their lands/assets and visited Shillong on 22.7.2001 and had a meeting at Anupchand High School, Keating Road, Shillong with the respondents and other members of the Association/Company from Shillong. In the said meeting, the petitioner was alleged to have promised to hand over developed plots to the respondents and also to open an office Company at Shillong for coordinating his function, which promises he failed to keep. A bare examination of the aforesaid allegations will unmistakably reveal that the cost of the plot and the membership fee of the Association and other payments were already made over by the respondents to the Ram Thakur Association Limited before this Company was taken over by the Sarada Construction Company Private Limited of which the petitioner is the Managing Director. In other words, if the respondents were victims of deception, such deception had already taken place before the petitioner and his company took over Ram Thakur Association Limited. As noted earlier, one of the essential ingredients of the offence of cheating is that the deception must have done before the property is delivered. Whatever representation or promise made by the petitioner appears to have been done after the taking over of the Ram Thakur Association Limited by the Sarada Construction Company Private Limited. In the circumstances, what can be said at the most in favour of the respondents is that the petitioner might have been guilty of breach of contract or breach of promise, but he can never be accused of cheating. In the circumstances, what can be said at the most in favour of the respondents is that the petitioner might have been guilty of breach of contract or breach of promise, but he can never be accused of cheating. It is a well settled law, every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. 8. Thus where the only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/- (Rupees Four lakhs twenty thousand), they would pay a sum of Rs. 2,60,000/- (Rupees Two lakhs sixty thousand) to the complainant out of that, but the same has never been paid, where apart from that there is no other allegation in the petition of complaint and where it was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons might take steps for moving the Consumer Forum in relation to the claim of Rs. 4,20,000/- (Rupees Four lakhs twenty thousand), the Apex Court in Uma Shankar Gopalika v. State of Bihar and Anr. (2005) 10 SCC 336 held that nowhere had it been stated that at the very inception there was any intention on the part of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC and therefore the complaint petition did not disclose any criminal offences at all, much less any offence either under Section 420 or Section120B IPC, and that the case is a case of purely civil dispute between the parties for which remedy lies before a Civil Court by filing a properly constituted suit. The Apex Court further held therein that allowing the Police investigation to continue on those facts would amount to an abuse of process of court and to prevent the same, it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused. 9. The Apex Court further held therein that allowing the Police investigation to continue on those facts would amount to an abuse of process of court and to prevent the same, it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused. 9. In the instant case also, in the absence of any elements of deception practiced by the petitioner upon the respondents, the question of making out a prima facie case under Section 420 against the petitioner does not arise. As for the offence of criminal conspiracy, to bring home to this charge, it is necessary to establish that there was any agreement between two or more persons to do an illegal or to do a legal act by illegal means. In the instant case, where there is no involvement of the petitioner in the alleged deception of the respondents by the accused Nos. 2, 3 and 4 as noted earlier, the question of roping him into the criminal conspiracy cannot also arise. The complaint petition appears to be an abuse of process of court. The respondents appeared to be bent upon converting a purely civil dispute into a criminal case. An impression appears to have been created in the mind of the respondents that if the petitioner could somehow be entangled in a criminal prosecution, there is likelihood of imminent settlement. Such an effort to settle civil disputes and claims not involving a criminal offence by applying pressure through criminal prosecution cannot be a countenanced by this Court. It is quite possible that the respondents have been given a raw deal by the petitioner, but if no prima facie case of criminal offence against him is made out, howsoever genuine their grievances may be, this Court cannot permit illegitimate prosecution to continue against the petitioner. 10. For what has been stated above, this criminal revision is allowed. Consequently, the criminal proceeding i.e., CR No. 673(S)2005 against the petitioner pending before the Judicial Magistrate, First Class, Shillong be and is hereby quashed. However, on the facts and circumstances of the case, the parties are directed to bear their own costs throughout. Petition allowed.