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2008 DIGILAW 22 (CAL)

Basudev Sadhukhan v. The State of West Bengal

2008-01-10

PARTHA SAKHA DATTA

body2008
Judgment Partha Sakha Datta, J. The complainant, a dealer in molasses was approached by the two petitioners to supply goods to them to which the complainant did not initially agree but was ultimately persuaded on being represented in different ways and them molasses were supplied to them at different times, worth Rs.45,895/- between the period from 10-09-2001 and 25-11-2002. The petitioners-accused persons were asked for payment which they deferred and accordingly the accused persons allegedly allowed the time to pass by. At last the accused persons told the complainant that the petitioner no. 1 had a pick-up van which they would sell and would make payment of the money to the complainant out of the sale proceeds. The accused persons asked the complainant to sell the van but the complainant did not agree. Then against his will the accused persons dropped the vehicle along with some documents on 25-12-2000 and told that the value of the van would be more than Rs.1 lac but no customer was found who would be agreeable to purchase the vehicle at Rs.1 lac and those who were found available as prospective customers did not agree to purchase at a price not exceeding to Rs.10,000/-. The complainant asked the accused persons to take away the vehicle. The accused persons asked the complainant to purchase the vehicle but he did not agree. On 26-09-2004 the accused persons came to the business place of the complainant and asked for renewal of the business transaction to which the complainant was not agreeable. The pick-up van remained at the business place of the complainant idle. The accused persons were asked to make payment of the money but they did not. The accused persons approached Burdwan Molasses Merchants’ Association which intervened into the matter and it was settled that the accused persons would pay Rs.33,000/- to the complainant. Initially, the accused persons wanted 15 days time to make payment but they ultimately refused to make payment. The petition was referred to the police under Section 156 (3) of the Cr.P.C. and an FIR being Burdwan P.S. Case No. 639 of 2004 under Section 420/406 of the IPC was registered. On 27-10-2005 the police submitted charge sheet under Section 420/406 of the IPC against the two petitioners. The petition was referred to the police under Section 156 (3) of the Cr.P.C. and an FIR being Burdwan P.S. Case No. 639 of 2004 under Section 420/406 of the IPC was registered. On 27-10-2005 the police submitted charge sheet under Section 420/406 of the IPC against the two petitioners. It is contended in the revisional application that on the facts alleged in the FIR no case under Section 420/406 of the IPC could be made out and accordingly the proceedings should be quashed. Mr. Pradip Kumar Roy, learned Advocate appearing for the petitioner submitted that no charge under Section 405 of the IPC could be levelled against the accused persons because the ingredients of Section 405 of the IPC i.e. entrusting any person with property or with any dominion over property, dishonestly misappropriating or converting to use of the accused of that property or dishonestly using or disposing of the property are not at all present in the instant case. Further it is submitted that with respect to the charge under Section 420 of the IPC it cannot be said that there was any deception at the initial transaction or fraudulent inducement to the complainant to deliver any property to any person or consent that the accused shall retain the property or inducing the complainant to do or omit to do anything which he would not do or omit if the complainant were not so deceived are present. It is submitted further that it was the accused persons who dropped the vehicle at the business place of the complainant and as the accused persons were not having money the complainant was asked to sell the vehicle which he could not do and at long last the matter was resolved at the instance of the Burdwan Molasses Merchants’ Association and a sum of Rs.30,000/- now came to be payable to the complainant which of course allegedly has not been paid. I have perused the petition of complaint and heard the submission of Mr. Roy, learned advocate appearing for the petitioner and Mr. B.N. Roy, learned advocate appearing for the State of West Bengal. The defacto complainant was served with notice but he did not appear. I have perused the petition of complaint and heard the submission of Mr. Roy, learned advocate appearing for the petitioner and Mr. B.N. Roy, learned advocate appearing for the State of West Bengal. The defacto complainant was served with notice but he did not appear. I would have gone into the merit of the case to find out where charge under Section 406/420 of the IPC could be prima facie made out from the FIR, but I am desisting from the exercise in view of the submission of Mr. Pradip Kumar Roy that the police has already submitted charge sheet against the petitioner under Section 406/420 of the IPC. Since the papers under Section 173 of the Cr.P.C. are not available with this court there is no scope to see what materials have or have not transpired against the accused persons. So far as the charge under Section 406 of the IPC is concerned the FIR of course does not speak of the ingredients of the offence but as it is not known as to what further statements have been made by the defacto complainant or the witnesses if not possible to come to a definite conclusion in this regard. In the circumstances, I dispose of the revisional application with the observation that all the points raised in this revisional application can be raised before the learned trial court at the appropriate stage of the proceeding.