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2015 DIGILAW 511 (CAL)

Saikat Sarkhel v. State of West Bengal

2015-06-19

SHIB SADHAN SADHU

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Judgment : Shib Sadhan Sadhu, J. 1. The petitioner by means of the present petition under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity), seeks to quash the entire proceedings including the charge-sheet of G.R.Case No.2612 of 2013 under Sections 420/506 of the Indian Penal Code pending before the Court of Learned Chief Judicial Magistrate, Howrah. 2. A written complaint was lodged by the complainant Kanchan Dey (O.P. No.2 herein) against the present petitioner Saikat Sarkhel on 12.04.2013 for the offence punishable under Sections 420/506 IPC in the Court of Learned Chief Judicial Magistrate, Howrah under Section 156(3) of the Cr.P.C. That complaint was sent to the O.C., Santragachi P.S. for investigation and on receipt of that complaint Santragachi P.S. Case No.16/13 dated 12.04.2013 under Sections 420/506 IPC was started and investigation was taken up. After completion of investigation a charge-sheet was submitted against the present petitioner for the offence punishable under Sections 420/406 of the IPC. Feeling aggrieved against the same, the present Revisional Application was filed by the petitioner. 3. As per the written complaint the complainant/O.P. No.2 came in contact with the accused petitioner who showed one old one-storied house, opposite to Baksara High School and described the same as his own property. The complainant liked it and wanted to buy it. The sale value of the said property was fixed at Rs.19,00,000/- (Rupees Nineteen lacs) only as per oral agreement between the parties on 29.08.2012 and an advance of Rs.21,000/- was paid and accepted on that very date. Thereafter on 02.09.2012 a ‘Bainapatra’ was executed in respect of that 1(one) Katha 12 Chittaks 30 Sq. ft. land with building standing thereon comprised within the Mouza-Uttar Baksara, Khatian No.1015 (Hal 4492), Dag No.793 (Hal 1734), P.S. Jagacha (Hal Santragachi P.S.) District: Howrah. The accused received further advance of Rs.2,50,000/- (Two lacs fifty thousand) on that date. On 03.09.2012 the accused took Rs.1,00,000/-more from the complainant as advance making endorsement on the reverse of the ‘Baina Patra’. On 12.09.2012 he again took Rs.75,000/- (Seventy Five thousand) by cheque No.719382 drawn on UBI, Jagacha, Howrah from the complainant after making endorsement on the ‘Bainapatra’. On 21.09.2012 he again took Rs.1,00,000/- from the complainant in cash as further advance but he refused to give any receipt or make any endorsement. On 12.09.2012 he again took Rs.75,000/- (Seventy Five thousand) by cheque No.719382 drawn on UBI, Jagacha, Howrah from the complainant after making endorsement on the ‘Bainapatra’. On 21.09.2012 he again took Rs.1,00,000/- from the complainant in cash as further advance but he refused to give any receipt or make any endorsement. In total, the accused took Rs.5,46,000/- from the complainant for selling the aforesaid house property. But thereafter the accused neither completed the sale transaction nor did he return the advanced money and took time on some false pretext. Being suspicious the complainant made search of the settlement records and other documents and it was revealed that the house shown by the accused does not stand on khatian No.4492, Dag No.1734 and that the land measures only one Katha. Thus, it was clear that the accused intentionally committed fraud by making false statement to the complainant and cheated him in respect of Rs.5,46,000/-and misappropriated the same for his personal and illegal gain. When the complainant demanded refund of his money, the accused started threatening him of murder and assault. The complainant lodged information over the matter in Santragachi P.S. on 03.04.2013 but only a G.D. Entry being No.105/ 13 dated 03.04.2013 was recorded. 4. Mr. Pratik Majumder, Learned Advocate appearing on behalf of the petitioner, argued that the allegation levelled against the petitioner does not constitute any offence under Sections 406/420 IPC. He further contended that subsequent to the execution of the Agreement for Sale the petitioner executed the sale deed in respect of the land and property measuring about 1 Katha 12 Chittaks which was proposed to be sold by the petitioner in favour of the O.P. No.2. The sale deed was executed on 24th September, 2012 and the O.P. No.2 has been in possession of that land and he has also mutated his name in the Record of Rights and after the lapse of nine(9) months, the O.P. No.2 lodged the complaint alleging cheating and misappropriation of Rs.5,46,000/-on the basis of a concocted story that the petitioner/accused did not complete the sale transaction. He contended yet further that the charge-sheet has been submitted without making any comment as to the genuineness and correctness of the sale deed executed by the petitioner in favour of the O.P. No.2 on 24th September, 2012. He contended yet further that the charge-sheet has been submitted without making any comment as to the genuineness and correctness of the sale deed executed by the petitioner in favour of the O.P. No.2 on 24th September, 2012. According to him dispute, if any, is substantially a civil dispute and the instant criminal case has been launched only to put pressure upon the petitioner for some wrongful gain and to tarnish his reputation in the society. He thus concludingly submitted that the institution of the criminal proceeding and its continuation is a sheer abuse of process of law and is liable to be quashed. 5. On the other hand, Learned Counsel appearing on behalf of the State argued that from contents of the FIR and the case diary statements, a prima facie case of cheating and criminal breach of trust is made out. Therefore, no interference is warranted and the petitioner would be at liberty to raise defences available to him under the law in the Trial Court. His defence cannot be considered at this stage. He further contended that although while considering the application for quashing of the charge-sheet, the allegations made in the First Information Report and the materials collected during the course of investigation are required to be considered but truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. 6. Mr. Bhudeb Bhattacharya, Learned Advocate appearing on behalf of the O.P.No.2, submitted that the petitioner/accused showed a house property with land to the complainant O.P. No.2 and took advance of Rs.5,46,000/-against the agreed consideration of Rs.19,00,000/- and executed the Baina patra but he did not execute such deed. The complainant then made a search and came to learn that although the petitioner/accused showed him the house property with land but in fact he executed the Baina patra in respect of a vacant land situated in front of that property. So the complainant demanded refund of that advanced amount of Rs.5,46,000/-but the petitioner/accused did not pay back the money. He submitted further that the deed executed by the petitioner/accused relates to separate property and separate transaction. Therefore, according to him the petitioner/accused has cheated the complainant and on investigation police found a prima facie case and submitted charge sheet. Therefore, the proceeding is not liable to be quashed. 7. He submitted further that the deed executed by the petitioner/accused relates to separate property and separate transaction. Therefore, according to him the petitioner/accused has cheated the complainant and on investigation police found a prima facie case and submitted charge sheet. Therefore, the proceeding is not liable to be quashed. 7. I have considered the rival contention advanced by the Learned Advocates appearing for the parties and perused the entire materials available on record. I have also gone through the case diary carefully. 8. At the very outset let me refer to two recent decisions of the Hon’ble Supreme Court laying down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. 9. In Amit Kapoor Vs. Ramesh Chander and Anr. (2013) 1 SCC (Cri.) 986 : (2012) 9 SCC 460 , the Hon’ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the Sub-ordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 10. In Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330 , The Hon’ble Supreme Court has been pleased to observe that:- “ The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 11. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of principles enumerated in the aforesaid decisions, in order to find out whether a case of quashing criminal proceedings constituted upon FIR is made out so as to warrant interference by this Court invoking inherent power under Section 482 of the Code. 12. The entire allegations against the petitioner as stated in the written complaint and the case diary statements as placed on record, reveal that the petitioner took Rs.5,46,000/- as advance for selling his house property standing on LR Khatian No.4492, Plot No.1734 of Mouza Uttar Baksara measuring 1 Katha 12 Chittaks, 30 Sq. ft. but he did not show any interest to complete the sale transaction nor did he return the advanced money. On making search, the complainant came to know that the said property does not stand in Khatian No.4492, Dag No.1734 and the said land only measures 1 Katha. It is interesting to note that the sale deed executed by the petitioner/accused in favour of the complainant/ O.P. No.2 on 24th September, 2012 is for a consideration of Rs.14,00,000/-only and its recital bears no reference of the ‘Baina patra’ which was executed on 2nd September, 2012 for an agreed consideration of Rs.19,00,000/-. Therefore it is evident that there are sufficient materials which established prima facie commission of an offence. 13. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial. 14. 13. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial. 14. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of the Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioner for the offence complained of against him under the Indian Penal Code, therefore, this Court is of the opinion that, prima facie, offence under the Indian Penal Code is made out against the petitioner. 15. Inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 16. For the reasons aforesaid, the instant Revisional Application stands dismissed. No order as to costs. 17. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.