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2012 DIGILAW 595 (CAL)

Gour Mohan Das v. State

2012-07-06

DIPAK SAHA RAY

body2012
JUDGMENT: DIPAK SAHA RAY, J. 1. THE present case arises out of an application under Section 482 of the Code of Criminal Procedure 1973 for quashing the criminal proceeding of B.G.T. Case No. 2347 of 2006 arising out of Thakurpukur P.S. Case No. 226 of 2006 dated 12.8.2006 under Sections 420/323/504/506 of the Indian Penal Code which is pending before the learned 1st Judicial Magistrate, Alipore, South 24 Parganas. 2. THE relevant facts of the present case are, in a nutshell, as follows: 3. O.P. No. 2 herein as defacto complainant filed a petition of complaint before the learned Chief Judicial Magistrate, Alipore, South 24 Parganas which was sent to the O.C., Thakurpukur P.S. for investigation after treating the same as FIR under Section 156(3) of the Code of Criminal Procedure. Accordingly, Thakurpukur P.S. case No. 226 of 2006 dated 12.8.2006 was started under Sections 420/323/504/506 of the Indian Penal Code. In the said petition of complaint the defacto complainant has alleged therein inter alia that as per the request of the accused person the defacto complainant entrusted him to construct his building after demolishing the existing structure. Accordingly, on 26.2.2003, the defacto complainant accepted the quotation submitted by the accused person. An agreement was also executed between them. In the said agreement, it was mentioned that the accused person would pay the total cost of Rs. 3,85,000/- part by part. It is also alleged that the accused person did not pay the bills of the defacto complainant for the last 8 months amounting to Rs. 1,35,000/-. It has been further alleged that inspite of several requests the accused refused to pay that amount. On the contrary, he and his sons started harassing him (the defacto complainant). Subsequently, on 22.2.2004, in the afternoon when the defacto complainant went to the house of the accused and demanded the outstanding amount etc., the accused and his sons and others abused him and assaulted him with fist and blows and also threatened to kill him. The defacto complainant has further contended in his petition of complaint that the petitioner/defacto complainant sent demand notice to the accused on 27.4.2004; but the accused refused to receive the said notice. It is alleged that the accused person and his sons and others committed offences under Sections 420/323/504/506 of the Indian Penal Code. 4. The defacto complainant has further contended in his petition of complaint that the petitioner/defacto complainant sent demand notice to the accused on 27.4.2004; but the accused refused to receive the said notice. It is alleged that the accused person and his sons and others committed offences under Sections 420/323/504/506 of the Indian Penal Code. 4. IT is the case of the petitioner that the defacto complainant/O.P. No. 2 herein filed a case with an ulterior motive to harass him. It is alleged that the dispute between the parties is purely civil in nature and civil remedy is available. It has also been alleged that the petition of complaint does not disclose necessary ingredient of offences under Section 420 IPC. It is further alleged that the ingredient of offences under Sections 323/504/506 IPC are also found absent in the contents of FIR. 5. THE learned counsel for the petitioner has submitted that the defacto complainant/O.P. No. 2 herein in his petition of complaint has never stated that the accused person dishonestly induced the defacto complainant to execute the said agreement and that no allegation whatsoever has been made in the said petition of complaint that the accused person had an intention to cheat the defacto complainant from the very inception; on the other hand, from the petition of complaint, it is evident that the accused made payment part by part and he did not pay Rs. 1,35,000/- out of Rs. 3,85000/-. It is further submitted that the petition of complaint was filed after the lapse of more than 2 years and as per the provision of Section 468 of the Code of Criminal Procedure, initiation of case under Section 323/504/506 IPC are barred by limitation. 6. THE learned counsel for the opposite parties that is State and O.P. No. 2 have submitted that during investigation a prima facie case was established and thereafter charges have also been framed against the accused person after hearing both the parties. So, at this stage the proceedings should not be quashed. 7. THERE is no controversy that after investigation charge sheet has been submitted in this case. There does not appear to be any controversy that after hearing both sides and considering the charge sheet and other materials on record, the learned Magistrate has framed charges under Sections 420/323/504 of the Indian Penal Code against the accused person. 7. THERE is no controversy that after investigation charge sheet has been submitted in this case. There does not appear to be any controversy that after hearing both sides and considering the charge sheet and other materials on record, the learned Magistrate has framed charges under Sections 420/323/504 of the Indian Penal Code against the accused person. There is also no dispute that the case is now pending at the stage of evidence. 8. THE controversy mainly relates to the question as to whether during investigation any prima facie case under Sections 420/323/504 of the Indian Penal Code has been made out. 9. THE inherent power of the High Court under Section 482 of the Code of Criminal Procedure can be exercised i) to give effect to any order under this Code, ii) to prevent abuse of process of any code and iii) to secure ends of justice. 10. ADMITTEDLY, after initiation of the case Police investigated the matter and after completion of investigation, charge sheet was submitted meaning thereby that a prima facie case was made out during investigation. It further appears that the learned Magistrate after hearing both sides and after perusal of the materials on record was prima facie satisfied and framed charges under Sections 420/323/504 IPC against the accused person. 11. IT has been alleged that the accused had an intention to cheat the defacto complainant from the very inception. But such fact can only be proved at the time of trial after considering the evidence both oral and documentary. Since prima facie case has been established and charges including Section 420 of the Code of Criminal Procedure have been framed against the accused person without considering the merit of the case, it cannot be said, at this stage, that the accused had no intention to cheat the defacto complainant from very inception. 12. NOW, let it be seen if the argument of the learned counsel appearing for the petitioner in the matter of taking cognizance beyond the period of limitation, has any force at all. 13. 12. NOW, let it be seen if the argument of the learned counsel appearing for the petitioner in the matter of taking cognizance beyond the period of limitation, has any force at all. 13. THE offence under Section 504 IPC is punishable with imprisonment for two years or fine or both and as per the provisions of Section 468(1)(c) of the Code of Criminal Procedure the court can take cognizance of the said offence within the period of three years and that there is no limitation for taking cognizance of offence under Section 420 IPC. In the instant case, the petition of complaint was lodged after the lapse of two years and 4 months. In view of the above discussion, it appears that the argument as advanced by the learned counsel for the petitioner does not have any force. 14. CONSIDERING the above facts and circumstances and the discussions made above, I find no merit in the present application under Section 482 of the Code of Criminal Procedure. 15. ACCORDINGLY, the instant application under Section 482 of the Code of Criminal Procedure fails. 16. CRR 1771 of 2011 is dismissed and in the nature and background of the case without cost. 17. LET a copy of this judgment be sent to the learned trial court for information and necessary action. 18. URGENT Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.