Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 699 (CAL)

Md. Siraj v. The State of West Bengal

2010-06-29

PRASENJIT MANDAL

body2010
JUDGMENT:- Prasenjit Mandal, J.: 1. This application under Section 482 of the Code of Criminal Procedure, 1973 is at the instance of the accused person and is directed against the Amherst Street P. S. FIR No.251 10.11.2005 under Section 420/120B of the I.P.C. corresponding to G.R. Case No.1379 of 2005 arising out of a petition of complaint bearing no. C 949 of 2005 sent to the P.S. under Section 156(3) of the Code of Criminal Procedure. The fact leading to the fling of this application is that the predecessor-in-interest of the petitioner was the owner in respect of some plots of lands and by demise of the predecessor-in-interest the petitioner became the owner in respect of some portion of the land. The petitioner decided to sell his land and Maniruddin Munshi and Lutfonnahar expressed their willingness to purchase the aforesaid land of the petitioner. The price was settled at the rate of Rs.3,50,000/-per cottah. The intending purchasers paid a sum of Rs.5,00,001/- as advance money and the petitioner made a written declaration on 02.04.2005 to that effect. The said bayananama does not bear the signature of Maniruddin Munshi and Lutfonnahar. It was settled that the intending purchasers would pay the balance amount within six months from the date of execution of the bayananama and then the petitioner would register a deed of sale in favour of the intending purchasers. Ultimately, no registration took place; correspondences were made between the parties through their respective advocates. Thereafter one Mashiruddin Munshi, father of Maniruddin Munshi, filed an application under Section 156(3) of the Code of Criminal Procedure before the learned Additional Chief Metropolitan Magistrate, Calcutta bearing no.C-949 of 2005. That application was then sent to Amherst Street P.S. The Amherst Street P.S. started p.s. case accordingly against the petitioner. Thereafter, the petitioner preferred this application for quashing the proceedings. Mr. Milon Mukerherjee, learned Advocate submits that the Amherst Street P.S. Case No.251 dated 10.11.2005 under Section 420/120B of the I.P.C. against the petitioner cannot proceed because the petition of complaint filed by the opposite party no.2 does not disclose any ingredients of offence punishable under Section 420/120B of the I.P.C. or any other provisions and so the police authority has no power to investigate the same. He also contends that no agreement was held between him and the opposite party no.2 at all for the bynanama for sale of a piece of land. He also contends that no agreement was held between him and the opposite party no.2 at all for the bynanama for sale of a piece of land. In spite of that, the learned Additional Chief Metropolitan Magistrate, Calcutta sent the petition of complaint to the concerned police station under Section 156(3) of the Cr.P.C. So the learned Additional Chief Metropolitan Magistrate did not apply his judicial mind in passing the order for investigation. He also contended that the dispute is of civil nature and so the FIR has been filed with mala fide intention and to harass the petitioner. So the Amherst Street P.S. Case No.251 dated 10.11.2005 should be quashed. On the other hand, Mrs. Krishna Ghosh supports the fact of sending the case to the concerned police station under Section 156(3) for investigation of the matter on basis of the petition of complaint. Mr. Chakraborty, learned Advocate for the opposite party no.2, submits that the opposite party no.2 is none else but the father of Maniruddin Munshi and Lutfonnahar is his wife. He is very much conversant with the fact of the case. So he filed the petition of complaint under Section 156(3) of the Cr.P.C. After hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that previously one of the learned Judges of this Hon’ble High Court Tapan Mukherjee (as His Lordship then was) allowed the application thereby quashing the FIR against the petitioner. Thereafter, the opposite party no.2 preferred an appeal before the Hon’ble Apex Court and the Hon’ble Apex Court remitted the case to the High Court for a fresh decision in accordance with law. Direction was given to implead the opposite party no.2. As the concerned p.s. case number was quashed without any notice to the appellant, the appeal was allowed accordingly. Thereafter, opposite party no.2 was added as party to the application under Section 482 of the Cr.P.C. He was the de-facto complainant of the concerned G.R. case. Now the point for determination in this application is whether the prayer for quashing the proceeding can be allowed. Thereafter, opposite party no.2 was added as party to the application under Section 482 of the Cr.P.C. He was the de-facto complainant of the concerned G.R. case. Now the point for determination in this application is whether the prayer for quashing the proceeding can be allowed. Admittedly, by inheritance, the petitioner became the owner of a plot of land to the extent of 9 cottah 8 chittaks out of which he wanted to sell 4 or 5 cottah of land having good marketable title at the rate of Rs.3,50,000/- lakh per cottoah to Maniruddin Munshi and Lutfonnahar. At that time, Mashiruddin was not in the picture and an advance of Rs.5,00,001/- was paid by the intending purchasers to the owner. It was decided that the sale would be completed within six months and in the meantime, all the documents relating to the land should be verified by the intending purchasers. But the petitioner did not hand over the papers to the intending purchasers for which several correspondences were made between the parties. The deed of bynanama clearly lays down the name of the intending purchasers as Maniruddin Munshi and Lutfonnahar and the petitioner as the intending vendor. But surprisingly, this deed of bynanama does not lay down any signature of the intending purchasers at all. The matter could not be settled between the parties on the ground that the intending vendor could not show his clear title to the land. That is why, the intending purchasers were not satisfied with the documents of title and so they prayed for return of the money advanced for the sale of the land. From such contention, it is crystal clear that at the time of execution of the bynanama between the intending purchasers and the intending vendor, there was no criminal intent on the part of the petitioner. The intending purchasers might have the right for specific performance of contract in accordance with law of the land and their remedy would lie before a Civil Court, if any. For that reason, it could not be decided on perusal of the petition of complaint that the petitioner had dishonest or fraudulent intention at the time when the intending purchasers parted with money as earnest money. For that reason, it could not be decided on perusal of the petition of complaint that the petitioner had dishonest or fraudulent intention at the time when the intending purchasers parted with money as earnest money. Therefore, if the petitioner has committed any breach of contract, it is nothing but giving rise of a civil liability and the remedy lies before a Civil Court and not before the criminal court that too by a person was not at all a party to the bynanama at all. Mr. Chakraborty has referred to the decisions AIR 1954 SC 724 , (2002) 1 SCC 555 , (1981) 2 SCC 300 , 2009 (4) Supreme 312 , (2009) 1 C. Cr.L.R. SC 878, 1958 SCR 328 , AIR 1958 MP 239 and 21 CWN 558. His contention is that according to such decision, unless and until the witnesses are examined at the trial stage, motive could not be determined. The FIR should not be dismissed at the threshold except in exceptional circumstances. The acceptability of the materials to fasten culpability on the accused person is a matter of trial. Lastly he has contended that Section 482 Cr.P.C. should be exercised sparingly. Upon due consideration of those decisions, I am of the view that Mr. Chakraborty has referred to decisions which are of general nature in the matter of disposal of 482 Cr.P.C. application and as to what will be the function of the High Court when one civil suit and another criminal case are filed over the self same fact and if an application for quashing of a criminal proceeding is filed. Now, at this initial stage of the investigation of a criminal case, I am to consider if the petition of complaint is considered in its entirety as true, whether it discloses the commission of a criminal offence as alleged. Upon due consideration of the petition of complaint as a whole on its face value, I am of the view that the petition of complaint does not disclose dishonest or fraudulent intention on the part of the petitioner at the time of entering agreement and for that reason, for which he could not prosecuted for offence punishable under Section 320/120B of the I.P.C. In view of what has been stated, I am of the view that the application under Section 482 of the Cr.P.C. bears substance. It should be allowed accordingly. It should be allowed accordingly. The application under Section 482 of the Cr.P.C. is, therefore, allowed. The proceeding bearing Amherst Street P.S. FIR No.251 dated 10.11.2005 under Section 420/120B of the I.P.C. corresponding to G.R. Case No.1379 of 2005 including the order dated 28.10.2005 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in case no.C-949 of 2005 under Section 156(3) of the Cr.P.C. stand quashed. Interim order, if any, is hereby vacated. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.