Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 289 (CAL)

Rouf Ali Molla v. STATE OF WEST BENGAL

2006-05-11

ARUN KUMAR BHATTACHARYA

body2006
Judgment :- Arun Kumar Bhattacharya, J. The hearing stems from twin applications under section 482 Cr.PC being registered as CRR No. 305 of 2003 and CRR No.677 of 2003 filed by the petitioners praying for quashing the proceeding as well as charge-sheet dated 31.03.2002 under sections 406/420/506 (II)/120B/34 IPC filed in G.R. Case No. 342/2001 arising out of Arambagh P.S. Case No. 136/01 dated 09.10.2001, pending in the Court of learned SDJM, Arambagh. 2. The circumstances leading to the above application are that the de facto complainant Matiar Rahaman lodged a complaint under sections 406/420/504/506 (II)/120B/34 IPC, being forwarded under section 156(3) Cr. PC to Arambagh P.S., inter alia alleging that the accused persons, fifteen in number, purchased rice, worth of large amount, from him on credit for the purpose of their business at different times on assuring that they would repay the price. Despite repeated requests when they did not pay the price the matter was reported to the Rice Dealer Association of Arambagh which in turn referred the matter to Rice Dealer Association of Tegharia. In the meeting called by the Rice Dealer Association of Tegharia, the accused persons pleaded guilty and promised to pay up the dues within 2/3 months. On 05.10.2001 when the complainant met the accused persons at Arambagh and demanded payment of the due sum, they became aggressive, threatened him with dire consequences if he further demanded payment of dues and expressed that they would not pay the amount. On the basis of said complaint, Arambagh P.S. Case No. 136/01 dated 09.10.2001 under sections 406/420/504/506 (II)/120B/34 IPC was started and after completion of investigation charge-sheet under the said provisions was submitted. 3. It has been contended that the dispute is purely of civil nature and initiation of the criminal proceeding is a gross abuse of the process of the Court. 4. Being aggrieved by the continuance of the said proceeding, the petitioners have come up before this Court. 5. Since same question of law and fact are involved, both the cases were heard together. 6. Mr. De, learned Counsel for the petitioners, submitted that the fact aforesaid does not constitute any offence under section 406 IPC and since it is a dispute purely of civil nature the prosecution under section 420 IPC is also not maintainable. Mr. 5. Since same question of law and fact are involved, both the cases were heard together. 6. Mr. De, learned Counsel for the petitioners, submitted that the fact aforesaid does not constitute any offence under section 406 IPC and since it is a dispute purely of civil nature the prosecution under section 420 IPC is also not maintainable. Mr. Ghosal, learned Counsel for the State, on the other hand, submitted that apart from the fact that a clear case under section 506 (II) IPC has been prima facie made out, since the petitioners had dishonest and fraudulent intention from the inception not to pay the due amount, thus bringing the offence within the purview of section 420 IPC also, the question of quashing the proceeding does not arise. 7. Quashing of proceeding to prevent abuse of the process of the Court or otherwise to secure the ends of justice may be done where: (1) it appears that there is a legal bar against the institution or continuance of criminal proceeding in respect of the offence alleged e.g. absence of requisite sanction, or (2) the allegations in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, or (3) the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In this connection, reference may be made to the case of R.P. Kapur vs. State of Punjab, reported in AIR 1960 SC 866 and State of Haryana vs. Bhajan Lal, reported in AIR 1992 SC 604 . It is to be borne in mind that the power to quash an FIR by this Court can be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. At this stage the Court cannot inquire about reliability or genuineness or otherwise of the allegations made in the FIR nor it can inquire whether the allegations are likely to be established or not, as was held in the case of M. Narayandas vs. State of Karnataka, reported in 2004 SCC (Cri) 118 at 123. 8. At this stage the Court cannot inquire about reliability or genuineness or otherwise of the allegations made in the FIR nor it can inquire whether the allegations are likely to be established or not, as was held in the case of M. Narayandas vs. State of Karnataka, reported in 2004 SCC (Cri) 118 at 123. 8. So far as the alleged offence under section 406 IPC is concerned, as it is a case of sale of article on credit and not entrustment, the essential ingredients of the offence being absent, it does not come within the mischief of section 406 IPC. 9. As regards the offence under section 420 IPC, the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to the criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed, as was held in the case of Hridaya Ranjan Pd. Verma vs. State of Bihar, reported in 2000 C Cr.LR (SC) 293. Here, it is the specific case of the complainant that the accused persons started business with him, for which confidence and faith grew up between them which necessarily leads to suggest that there were previous transactions between the parties. There is nothing to indicate in the materials placed before the Court that the petitioners had fraudulent and dishonest intention from the inception which is the touchstone to bring an act within the ambit of section 420 IPC. Accordingly, the essential ingredients of this offence too being absent, section 420 IPC is not attracted. There is nothing to indicate in the materials placed before the Court that the petitioners had fraudulent and dishonest intention from the inception which is the touchstone to bring an act within the ambit of section 420 IPC. Accordingly, the essential ingredients of this offence too being absent, section 420 IPC is not attracted. In this connection, the case of K. K. Choudhury vs. State of West Bengal, reported in 2000 C Cr.LR (Cal) 220, may also be referred to. 10. But there is another offence being under section 506 (II) IPC in respect of which there are prima facie materials. As such, the question of quashing the entire proceeding is out of the way. 11. In view of the above discussion, both the applications be dismissed. 12. Orders of stay passed on 20.03.2003 (in C.R.R. No. 305/2003) and on 22.04.2003 (in C.R.R No. 677/2003) stand vacated. 13. Let a copy of this order be sent down at once to the learned Court below with a direction to dispose of the case as expeditiously as possible, preferably within a period of four months from the date of communication of the order. 14. Urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible. Application dismissed.