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2012 DIGILAW 464 (CAL)

Saroj Jhunjhunwala v. The State of West Bengal

2012-05-16

KANCHAN CHAKRABORTY

body2012
Judgment :- Kanchan Chakraborty, J: 1) These two applications under Section 482 of the Code of Criminal Procedure have been taken out for quashing the proceedings being C.G.R. 265/2009 pending in the Court of learned Chief Judicial Magistrate, Alipore South 24 parganas arising out of Balygunge police station case no. 9 of 2009 dated 20.1.2009 under Section 420/120B of the IPC. Since in both the applications, quashing of a particular proceedings has been sought for on common causes, they are disposed of together by the following order. 2) One Rohit Shroff filed a petition of complaint in the Court of learned C.J.M., Alipore on 21.1.2009 and the same was referred to Balygunge police station under Section 156 (3) Cr.P.C. for investigation and submit report. On the basis of said F.I.R., the Balygunge police station case no. 9 of 2009 dated 20.1.2009 was started against the petitioners. Rohit Shroff, in his petition of complaint, contended that his family members were in urgent need of a specious office space in an around Salt Lake area. Being attracted by an advertisement in a newspaper of M/s Renault Developers Private Limited, he contacted the petitioners who were representing M/s Renault Developers Private Limited as its Director. They assured Mr. Shroff that they were in a position to fulfill his requirement of a specious office space as they had under taken the project already and that they would provide the office space to Mr. Shroff and his relations by August, 2008, positively, if not earlier. As insisted by the petitioners, Mr. Shroff booked 2176 Sqt. Office space no. 5 on the 5th floor against consideration money of Rs.1,33,80,250/- besides one covered car parking space and open car parking space at premises no. 3A, Rammohan Mullick Gargen Lane, Kol-700010. On 3.9.2007, Mr. Shroff and his relations were induced to pay Rs.56,00,000/-for booking of the said space. On 7.11.2007, Mr. Shroff & his relations were induced by the petitioners to enter into an agreement with M/s Renault Developer Private Limited and to pay Rs.32,00,000/- on 7.11.2007, Rs.10,00,000/- on 4.1.2008, Rs. 12,88,888/- on 6.5.2008 & Rs.20,00,000/- on 30.6.2008, totaling Rs.1,30,80,000/-. In order to convince Mr. Shroff and his relations, the petitioners had taken them to the construction site and assured them that it would be completed within the time scheduled. But, in the utter surprise, Mr. 12,88,888/- on 6.5.2008 & Rs.20,00,000/- on 30.6.2008, totaling Rs.1,30,80,000/-. In order to convince Mr. Shroff and his relations, the petitioners had taken them to the construction site and assured them that it would be completed within the time scheduled. But, in the utter surprise, Mr. Shroff and her relations found that till that date, the petitioners were not at all ready to provide them with the office space. The petitioners also started avoiding Mr. shroff and her relations willfully and deliberately. Being suspicious, Mr. Shroff and his relations had been to the construction site and found that only super built structure was erected. An enquiry revealed that the petitioners mortgaged/charged the said property and raised huge amount of money to the tune of Rs.50,000000/- from the market and that fact was never disclosed to Mr. Shroff and his relations. Mr. Shroff had written a letter to the petitioners on 6.11.2008 drawing their attention to the serious omission in the matter of not providing to the office space to them by August, 2008 as per the representation and undertaking of the petitioners against payment of money amounting to 1,30,80,000/-. Inspite of receiving the letter, the petitioners neither replied to the same nor made any contact with Mr. Shroff and his relations. Mr. Shroff, the de facto complainant had reasons to believe that the petitioners being actuated by an evil intention of gobbling up the huge amount of money of Mr. Shroff and his relations made false fraudulent misrepresentation of providing them with an office space of their choice which they never intended to provide right from the very inception. They misappropriated the money paid by them dishonestly by entering into a criminal conspiracy amongst themselves by deceitful means. Thereby, they cheated Mr. Shroff and his relations. 3) The petitioners being accused in that particular case have come up with these applications praying for quashing of the proceedings, mainly, on the following grounds : i) that the dispute is of civil in nature and no criminality is attributed to the petitioners; ii) that no offence of cheating has been made out prima facie against the petitioners in the F.I.R. iii) that there was an agreement for sale and parties to that entered into the said agreement at their own will. There was no inducement on the part of the petitioners to allure the de facto complainant and others to book space in the proposed construction; iv) that money was paid in terms of the contract and the petitioners have not misappropriated the same for their wrongful gain; v) that there was disclosure of mortgage at the time of agreement and the property has not been sold to any third party as yet; vi) that parties also taken recourse of Consumer disputes redressal commission; vii) that since no case of cheating is made out in the F.I.R. prima facie, simple breach of agreement does not constitute offence of cheating especially when no criminality is attributed to the petitioners. 4) Both the sides filed supplementary affidavits and affidavits-in-reply annexing bunch of documents. It is pertinent to mention here that the criminal prosecution was initiated in the year 2009 and the investigation into the case is still pending due to order of stay passed by this Court. It is also pertinent to mention here that an application under Section 9 of the Arbitration and Conciliation Act filed by the opposite party no. 2 and others in the Court of learned District Judge, Alipore which was registered as Misc. Case no. 616 of 2009. One Sri Raghu Nath Ghose was appointed as an Arbitrator also. The matters are pending. 5) Mr. Sandipan Ganguly, learned Counsel on the behalf of the petitioners contended that in order to attract the provisions of Section 420 IPC, fraudulent and dishonest intention at the time of making promise or representation is a sine quo non. Pure and simple breach of contract of sale does not constitute offence of cheating. In support of his contention, Mr. Ganguly referred to the decision of Apex Court in Dilip Kumar & others Vs, Jagnar Singh and Anr. Reported in AIR 2009 SC 3191 . Mr. Ganguly referred to the another decision of the Apex Court in Murarilal Gupta Vs. Gopi Singh reported in (2006) 2 SCC (Cri) 430 and contended that in absence of any averments in the complaint so as to infer fraudulent or dishonest inducement having been made by the petitioner, pursuant to which the respondent parted with his money, it can not be said that the petitioner had cheated the respondent. Mr. Ganguly has referred to a decision of this Court in Kingsukh Neyogi Vs. State of W.B. & Anr. Mr. Ganguly has referred to a decision of this Court in Kingsukh Neyogi Vs. State of W.B. & Anr. Reported in (2008) 1 C. Cr.L.R. (Cal) 789 and contended that mens rea is a necessary ingredient without which a breach of trust may not result in criminal breach of trust. In order to constitute an offence punishable under Section 420 of IPC, the dishonest intention must be shown to exist at the time of making of the inducement. 6) Mr. Debapriya Gupta, learned Counsel appearing on behalf of the opposite party no. 2 contended that there is no rule of law that existence of a civil dispute invalidates the criminal prosecution. The F.I.R. disclosed each & every details of facts indicating clearly how the O.P. no. 2 and his relations were induced and deceived by the petitioners. It has been specifically mentioned in the F.I.R. that the petitioners created an atmosphere which attracted the opposite parties to book the office space against huge amount of money and enter into the agreement. The F.I.R. also disclosed clearly that the petitioners had mortgaged the entire property and collected huge some of money which was not disclosed by them to the opposite parties at the time the agreement was entered into by them. There was, Mr. Gupta contended, deliberate and willful misrepresentation from the side of the petitioners. They knew very well at that time that the entire construction was kept under mortgage as the petitioners had taken loan from different banks. Therefore, he contended that this Court should not quash the proceedings. He contended further that the merely because the matter was taken to consumer redressal forum or an arbitration proceeding, criminal prosecution against the petitioners is not prohibited when the acts of the petitioners constitute a criminal offence which is made out even prima facie. In support of his contention Mr. Gupta referred to the decision of Hon’ble Apex Court in X.W. Palanit car and Ors. Vs. State of Bihar & Ors. Reported in 2002 (1) SCC 241 . Mr. Gupta contended further that when the issues involved are of considerable importance to the parties in particular, and world of trade and commerce in general, High Court should not exercise his inherent power under Section 482 of the Code of Criminal Procedure and quash the proceedings. Vs. State of Bihar & Ors. Reported in 2002 (1) SCC 241 . Mr. Gupta contended further that when the issues involved are of considerable importance to the parties in particular, and world of trade and commerce in general, High Court should not exercise his inherent power under Section 482 of the Code of Criminal Procedure and quash the proceedings. Reference has also been taken from the decision of Apex Court in Iridium Indian Telecom Limited Vs. Motorwal incorporate and Ors. Reported in AIR 2011 SC 20 in this regard. Mr. Ghosh, learned Counsel appearing for the opposite party state of West Bengal contended that quashing of this prosecution at this stage would be against the principle of law. At best, the petitioners may try their luck by invoking Section 239 of Cr.P.C. 7) There is no dispute as to the principles laid down by the Hon’ble Apex Court in the decisions referred to above. In State of Hariyana Vs. Bajanlal, reported in AIR 1992 SC 604 , the Hon’ble Court set out categories of cases where High Court may exercise its inherent power under Section 482 of the Code in quashing of a Criminal prosecution. That view of Apex Court has been followed consistently by all the High Courts and the Apex Court till this date. One of the categories set out by the Hon’ble Apex Court is where the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their enterity do not prima facie constitute any offence or make out a case against the accused, the prosecution can be quashed. 8) In the instant case, it has been contended on behalf of the petitioners that no prima facie case of cheating has been made out against them as the essential ingredients constituting the offence “cheating” are absent in the F.I.R. Therefore, to appreciate the entire matter properly, the petition of complaint/F.I.R. is to be looked into with attention. However, as regard the contention of Mr. Ganguly that the dispute is of civil in nature & when criminality on the part of the petitioners is lacking, no criminal prosecution should be allowed to be continued, suffice it to state that merely because an act has a civil profile that does not denied it of its criminal outfit unless the allegation fall short in making out a criminal case. No criminal prosecution can be thwarted at the initial stage merely because civil proceedings are also pending over the selfsame allegation & at the same time there is no bar to the simultaneous continuation of a criminal proceedings even when both arise out of same transaction, unless elements of criminality is absent. In this regard, the decision of the Apex Court in Krishan Singh (D) through L.R.s Vs. Gurpal Singh and Ors. Reported in (2011) 1 C.L.J. SC 106 can well be referred to. 9) Now, turning to the F.I.R./petition of complaint in question and its contents it is found that the relations of Rohit Shroff were in urgent need of office place in an around Salt Lake area. They found one advertisement of M/s Renault Developer Private Limited that offering such spaces in a proposed building at 3A, Rammohan Mullick Garden Lane Cal 700010. Being attracted by the advertisement, Mr. Shroff and his relations contacted the petitioners who were Directors of M/s Renault Developer Private Limited. The petitioners accepted the proposal and categorically gave out that they would provide office space to relations of Mr. Shroff by August 2008 positively on the 5th Floor of the said building. 10) Paragraph 4 of the F.I.R. shows as to how the petitioners made representation inducing the relations of Mr. Shroff to book an area of 2176 sq. ft. in the said building on the 5th floor against the consideration money of Rs.1,33,80,250/-. The paragraph 4 of the F.I.R. is set out below : “The acting in good faith and being induced by the said representation of the accused persons, your petitioner and his aforesaid relations were induced to pay Rs.56,00,000/-on 03.09.2007 for booking the office space towards the total consideration amount of Rs.1,33,80,250/- for the so called office space viz. office space on 5 on the 5th floor purportedly having super built up area of 2176 sq. feet. With one covered car parking space and one open car parking space at the aforesaid premises no. 3A, Ram Mohun Mullick Garden Lane, Calcutta - 700010, in the vicinity of Salt Lake area and subsequently your petitioner and his said relations were induced by the accused persons to enter into an agreement on 07.11.2007 with the said company and paid Rs.32,00,000/- on 07.11.2007, on 04.01.2008 paid Rs.32,00,000/- and on 06.05.2008 paid Rs. 3A, Ram Mohun Mullick Garden Lane, Calcutta - 700010, in the vicinity of Salt Lake area and subsequently your petitioner and his said relations were induced by the accused persons to enter into an agreement on 07.11.2007 with the said company and paid Rs.32,00,000/- on 07.11.2007, on 04.01.2008 paid Rs.32,00,000/- and on 06.05.2008 paid Rs. 12,88,888/- and on 30.06.2008 paid Rs.20,00000/- to the said company of the accused persons, totaling Rs.1,30,80,000/-. It is worth mentioning in this connection that the accused persons prevailed on your petitioner and his other relations to make the payment of the aforesaid amount of Rs.56,00,000/- to the accused persons on 03.09.2007 by making representation of the agreement would take some time, the petitioner and his relations should book the flat forthwith in view of the soaring demand for office space at the said lucrative location.” 11) A bare reading of the contents of paragraph 4 makes it abundantly clear that there was no inducement or false representation on the part of the petitioner in the matter of entering into an agreement for sale of 2176 sq. ft. super built up area in the said building at 3A, Rammohan Mullick Garden Lane. It was the opposite party no. 1 Mr. Shroff and his relations who badly wanted a space of like nature in that vicinity and when it was found available to them they entered into the agreement and made part payment. It would not be correct to say that the petitioners did not start atall any construction work at 3A, Rammohan Mullick Garden Lane. It is fact that they did not complete the work and handed over the possession in the area booked by Mr. Shroff and his relations within the time specified. As far this part of allegations and aspersions of the O.P. no. 1 are concerned, it can hardly be said that there was any criminality on the part of the petitioners at that time. However, the paragraphs 10 reveals something different. It says, “That enquiry revealed that the accused person and their associates have mortgaged/portions of their property of the aforesaid place and raised huge amount of money not less than 50 cores from the market which fact has been deliberately and fraudulently concealed by the accused from the petitioner and his relations”. However, the paragraphs 10 reveals something different. It says, “That enquiry revealed that the accused person and their associates have mortgaged/portions of their property of the aforesaid place and raised huge amount of money not less than 50 cores from the market which fact has been deliberately and fraudulently concealed by the accused from the petitioner and his relations”. 12) The paragraph 11,12 and 13 disclose that how the petitioners avoided the opposite party 1 and his relations when a letter was issued to them regarding handing over of the property in dispute. Taking the averment made in paragraphs 10,11,12,13 as well 14 of the F.I.R. together into consideration, Mr. Ghose, learned Counsel appearing on behalf of the opposite party no.1 contended that a strong prima facie case has been cheating has been made out against the petitioner. He contended that had his clients any knowledge about the mortgage of the property in dispute, they would not have entered into such an agreement. Non-disclosure of such an important fact to the prospective buyers at the time of entering into agreement is amounting to cheating. 13) This Court bestows his serious though over the facts averred in the F.I.R. and finds that even if there was a suppression of material fact not affecting the right, title and interest of the prospective buyers, it can hardly be categorized as cheatin. But, by filing supplementary affidavit, the opposite party no. 1 brought the attention of the Court that the property at 3A Madanmohan Mullick Garden Lane is now become a subject matter of sale as loan amount taken by the petitioners keeping the building under mortgage to the banks have not been paid. A notice to that effect has been published also. This obviously affects the right of prospective buyers. They had no idea that the property was charged against loan and that due to non-payment of loan amount it would be sold. This fact of suppression obviously have great impact because the agreement for sale is completely silent about mortgage of the property, taking loan by the petitioners from bank and non-payment of the loan amount. In that background, the petitioners insisted Mr. Shroff and his relations to book the space in the building and entered into a contract hurriedly. This fact of suppression obviously have great impact because the agreement for sale is completely silent about mortgage of the property, taking loan by the petitioners from bank and non-payment of the loan amount. In that background, the petitioners insisted Mr. Shroff and his relations to book the space in the building and entered into a contract hurriedly. Therefore, it is really hard to say whether there was criminal intension on the part of the petitioner for making wrongful gain by deceivedful means at the relevant period time or not. It is a question of fact which cannot be inferred at this stage. Both the parties, it has been mentioned earlier, have filed supplementary affidavits and counter affidavits with huge number of documents regarding mortgage, notice of sale from bank, release of mortgage property etc. Genuinity and truthfulness of these documents are matter of strict proof that can well be done in course of trial. It is trite law that this Court while exercising his power under Section 482 of the Code of Criminal procedure in the matter of quashing a proceeding, should not delve into the evidence or document as to truthfulness or falsity of the case. The paragraph 10 to paragraph 14 as a whole makes out a prima facie case against the petitioner if that averments are taken on their face value and are accepted in its entirety and uncontroverted. It does not appear to be a simple case of breach of contract. 14) In the case in hand, process has been issued only. Investigation is yet to conclude. Parties are yet to place on record entire material in support of their claims. Issues involved are of considerable importance to the parties. In such a case detail analyses of very complicated document and reaching to a definite conclusion would be an exercise exceeding the jurisdiction of this Court in the matter of quashing of the proceeding. This case is based on various facts. Some relevant informations were not disclosed. Whether that non-disclosure of relevant informations would be treated as a misrepresentation of facts leading to deception is a question to be answered by the Trial Court. 15) High Court should not assume the role of a Trial Court and embark upon an enquiry as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. Moreover, all the offences are trible by Magistrate. 15) High Court should not assume the role of a Trial Court and embark upon an enquiry as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. Moreover, all the offences are trible by Magistrate. Matter would have been different had the offences been trible as a Sessions case. The Magistrate still has power to examine as to whether accused persons deserved to be discharged under Section 239 Cr.P.C. The learned Magistrate, in the case in hand, directed for investigated into the case. The report in final form is yet to reach. The provisions of Section 239 of Cr.P.C. should be allowed to their full play. As already noticed, both the parties have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. It is also noticed that a case, prima facie, is made out against the petitioner from the averments of the F.I.R. In such a situation, when the power under Section 482 of the Cr.P.C. is to be exercised ex debito justiae, this Court should not stall the proceedings at this stage. Accordingly, the applications are dismissed and disposed of. 16) However, the petitioner may take out an application under Section 239 Cr.P.C. in the Court of learned Magistrate and agitate their grievance. 17) Both the revisions applications are dismissed and disposed of. No order as to costs is passed.