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2015 DIGILAW 512 (CAL)

Lalit Kumar Sikri v. State of West Bengal

2015-06-19

SHIB SADHAN SADHU

body2015
Judgment : Shib Sadhan Sadhu, J. 1. This petition under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity) has been filed by the petitioners praying for quashment of the proceedings being G.R. Case No.645 of 2008 arising out of Hare Street P.S. Case No.119 dated 10th March, 2008 under Sections 420/120B of the Indian Penal Code pending before the Court of Learned Metropolitan Magistrate, 5th Court, Calcutta. 2. A Written Complaint was lodged by the complainant Kirit Kumar Shah (O.P. No.2 herein) against the present petitioners on 07.09.2007 for the offence punishable under Sections 420/120B IPC and Section 29 of the SERFAESI Act, 2002 in the Court of Learned Chief Judicial Magistrate, Alipore, South 24-Parganas under Section 156(3) of the Cr.P.C. That complaint was sent to the O.C., Bhowanipur P.S. for investigation and on receipt of that complaint Bhowanipur P.S. Case No.287 dated 01.11.2007 under Section 420/120B IPC and Section 29 of the SERFAESI Act, 2002 was registered and investigation was taken up. During investigation it transpired that all the transactions were held under the jurisdiction of Hare Street P.S. As such the said FIR and the case diary were duly submitted before the Learned Chief Judicial Magistrate, Alipore for forwarding the same to the O.C., Hare Street P.S. through the Learned Chief Metropolitan Magistrate, Calcutta. On receipt of the said records, the Learned Chief Metropolitan Magistrate, Calcutta directed the Officer-in-Charge, Hare Street P.S. for further investigation and accordingly Hare Street P.S. Case NO.119 dated 10th March, 2008 was registered and after completion of investigation charge-sheet was submitted against the present petitioners for the offence punishable under Sections 420/120B IPC. Feeling aggrieved against the same, the present Revisional Application was filed by the petitioners. 3. As per the written complaint the accused/petitioners who are the Deputy General Manager and Assistant General Managers of Union Bank of India took possession of the premises No.266/4, N.S.C.Bose Road, P.S. Tollygunge, Kolkata-40, measuring more or less 5 kathas as per the provision of Section 13(4) of the SERFAESI Act, 2002 as the borrowers Pradip Kumar Das and his co-sharers failed to pay off the loan amount to the said bank. After taking possession of the said premises the accused/petitioners published an ‘Auction Notice’ dated 14.12.2006 in the Bengali Daily Newspaper ‘Aajkal’. After taking possession of the said premises the accused/petitioners published an ‘Auction Notice’ dated 14.12.2006 in the Bengali Daily Newspaper ‘Aajkal’. Gathering information from such Notice the complainant / O.P. No.2 took part in the auction held by the accused persons on 16.01.2007 at 11.30 a.m. and he was considered the highest bidder and the accused persons issued such certificate in his favour along with the terms of payments and the bid amount was fixed at Rs.30,21,000/- (Rupees Thirty lacks twenty one thousand only). The complainant/ O.P. No.2 paid Rs.1,000/- only by means of cheque for participation in the auction and on that very date he also paid earnest money of Rs.17,500/-. Thereafter, as per direction of the accused persons he further paid Rs.7,37,750 (Rupees Seven lacks thirty seven thousand seven hundred fifty only) being 25% of the bid amount by means of a cheque dated 17.11.2007 drawn on State Bank of Saurastra, Kolkata. Thereafter, they had discussion and the accused persons handed him over a draft copy of sale deed with the assurance of completing the registration deal and handing over possession of the said premises on payment of the balance amount of Rs.22,65,750/- (Rupees Twenty two lacks Sixty five thousand Seven hundred fifty only). The complainant/O.P. No.2 approached the accused persons on 31.01.2007 to allow him some time for payment of the balance amount and it was allowed. It has been further alleged that on 08.02.2007 the complainant/ O.P. No.2 came to learn that a litigation was pending before the High Court, Calcutta in respect of the self same property sold in auction held by the accused persons. Despite having knowledge of pendency of such litigation the accused persons asked him to deposit the balance consideration money and he deposited the same out of belief and trust. The accused persons are deliberately and intentionally dragging the matter of registration and handing over possession of the aforesaid premises. They are also collecting dues from the actual borrowers before the High Court and they are restrained from proceeding against the said auctioned premises. Further case of the complainant is that he by letter dated 27.06.2007 asked the accused persons to register the deed of conveyance and to hand over the possession of the auctioned property and he also asked them to pay back entire amount with interest and damage if they failed to perform. Further case of the complainant is that he by letter dated 27.06.2007 asked the accused persons to register the deed of conveyance and to hand over the possession of the auctioned property and he also asked them to pay back entire amount with interest and damage if they failed to perform. In reply the accused persons threatened him with dire consequences. As such he lodged a written complaint before the O.C., Bhowanipur P.S. on 20.07.2007 against the accused persons but no action was taken and so he filed a complaint before the Deputy Commissioner of police (South) on 24.08.2007. According to the complainant, the accused persons misled and deceived him to part with a huge amount of Rs.30,21,000/- with full knowledge about the direction given by the High Court, Calcutta and in its gross violation they have dishonestly induced the complainant to part with the said money causing him wrongful loss and damages in the eye of law. 4. Mr. Debasish Roy, Learned Counsel appearing on behalf of the petitioners argued that the facts stated in the written complaint, F.I.R. and Statements recorded under Section 161 Cr.P.C., even if accepted as it is, do not constitute offence under Section 420 of the IPC. He further argued that M/S.Dayal Jewellery Museum, a Partnership Firm dealing with the manufacturing and selling of Gold Jewellery availed of several credit facilities from the India Exchange Place Kolkata-700001 branch of the Union Bank of India by executing several security documents and creating equitable mortgage in respect of the immovable property being the land and building situated at premises 244 and 266/4, Netaji Subhas Chandra Bose Road, Kolkata-700040. But said Partnership Firm and its partners failed to regularize the credit facilities accounts despite several demands and so the said accounts were classified as Non Performing Assets on 31.12.2004 in terms of the guidelines issued by the Reserve Bank of India vis-à-vis in terms of the provisions of the SERFAESI Act, 2002. On 9th June, 2005 the Authorized Officer of the bank issued a notice under Section 13(2) of the said Act demanding payment of a sum of Rs.65,95,588.83/- including interest as on 31st December, 2004. But despite receipt of the notice the borrowers and the guarantors did not pay the said amount. On 9th June, 2005 the Authorized Officer of the bank issued a notice under Section 13(2) of the said Act demanding payment of a sum of Rs.65,95,588.83/- including interest as on 31st December, 2004. But despite receipt of the notice the borrowers and the guarantors did not pay the said amount. On 12th July, 2006, the Authorized Officer issued notice of taking possession of the assets including the said immovable property of the firm and thereafter has taken possession accordingly. 5. The Learned Counsel submitted further that a Writ Petition was filed before the High Court on 26th July, 2006 challenging the said notice but the Court refused to pass any interim order. The writ petitioner then preferred appeal before the Division Bench of this Court wherein an order was passed on 3rd August, 2006 granting liberty to the Bank to proceed in the matter against the other securities including the premises being premises No.266/4, N.S.C.Bose Road, Kolkata 700040 (copy of such order has been annexed and marked as P-1). Accordingly, the Authorized Officer of the Bank issued a Possession Notice in respect of the said premises 266/4, N.S.C.Bose Road, Kolkata – 700040. Thereafter a Notice of Auction was published in local Bengali newspaper ‘Aajkal’ and also in English Daily ‘The Statesman’ on its 14.12.2006 issues specifying the date of holding auction on 16th January, 2007 in respect of the said premises. The partners of the said Firm challenged that Auction Notice before this Court by filing a Writ Petition. The matter was heard on 15th January, 2007 but no injunction order was passed. Accordingly the auction proceeding was held on 16.01.2007 and the O.P. No.2 herein was found to be the highest bidder and he deposited the earnest money on 17th January,2007. On 5th February, 2007 that Writ Petition was heard further and this Court directed the partners of the Firm to pay a sum of Rs.10,00,000/- on 6th February, 2007 the partners of the said Firm were directed to pay a further sum of Rs.10,00,000/- within a fortnight and restrained the bank from taking any further steps in the matter of confirming the sale.(the copy of such order has been annexed and marked as P-2). 6. Mr. 6. Mr. Roy submitted yet further that the aforesaid facts and order dated 6th February, 2007 were brought to the knowledge of the O.P. No.2 and accordingly he by his letter dated 8th February, 2007 requested the Authorized Officer of the bank to apprise him of the pending proceedings in detail before the final payment and he also requested to extend the time for final payment. 7. Mr. Roy further submitted that the statements and / or allegations made in the complaint by the complainant are false and motivated and tantamount to suppression of material fact. The petitioners being the Officers of the Bank had acted strictly in accordance with law and in compliance with the order of this Court and as such no offence is committed by them. Therefore, the petition of complaint has no legs to stand upon and no F.I.R. can be drawn and no charge-sheet can be submitted against the petitioners as none of the basic ingredients of the offences alleged under Sections 406/120B IPC has at all been satisfied. From the facts as disclosed in the petition of complaint it is apparent that the petitioners made no representation at all before the O.P. No.2 nor he was induced by any false and fraudulent representation as a result of which he deposited the money. Further it is also apparent that the money deposited/paid by the complainant by participating in the auction was not resultant of any conspiracy hatched between the accused/petitioners. In such circumstances the charge under Sections 420/120B IPC against the petitioners is clearly not maintainable. He concludingly submitted that the present proceeding is nothing but vexatious, mala fide, motivated and illegal and is also an abuse of process of Court as well as process of law and therefore, it is liable to be quashed. 8. On the other hand, Learned Counsel appearing for the State argued that from the contents of the Written Complaint, FIR and the case diary statements a prima facie case of cheating is made out. Therefore, no interference is warranted and it would be open for the petitioners to raise defences available to them under the law in the criminal proceedings. Their defence cannot be considered at this stage. 9. Mr. Therefore, no interference is warranted and it would be open for the petitioners to raise defences available to them under the law in the criminal proceedings. Their defence cannot be considered at this stage. 9. Mr. Dipak Kumar Sengupta, Learned Counsel appearing on behalf of the O.P. No.2 submitted that the accused/petitioners were very much aware that a litigation was pending before this Court and despite having such knowledge they asked the complainant to deposit the balance consideration money and accordingly he deposited the money out of belief and trust. Thereafter the accused/petitioners deliberately and intentionally dragged the matter of registration and of handing over possession of the premises in question to the complainant. Therefore, the accused/petitioners have misled the complainant/O.P. No.2 nd deceived him by dishonestly inducing him to part with a huge amount of Rs.30,21,000/-. Thus, according to him, the petitioners/accused have 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. 10. I have considered the rival submissions advanced by the Learned Counsel for the parties and perused the entire materials available on record and the case diary. 11. In its well-known decision in the case of State of Haryana and Ors. Vs. Bhajanlal and Others reported in 1992 Supp.(1) SCC 335: AIR 1992 SC 604 , The Hon’ble Supreme Court stated categories of cases by way of illustration wherein extraordinary power under Article 226 of the Constitution of India or inherent power under Section 482 of the Cr.P.C. could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, as below: “102…….(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any olffence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge” 12. The amplitude of the power and the guiding principles for exercise of such power under Section 482 of the Code have been laid down in a plethora of decisions of the Hon’ble Supreme Court, some of which are as follows. 13. In the case of State of Karnataka Vs. L.Muni Swamy & Ors. The amplitude of the power and the guiding principles for exercise of such power under Section 482 of the Code have been laid down in a plethora of decisions of the Hon’ble Supreme Court, some of which are as follows. 13. In the case of State of Karnataka Vs. L.Muni Swamy & Ors. [ (1977) 2 SCC 699 ], the Three Judge Bench of the Hon’ble Supreme Court referring to the Section 482 of the Code held in Paragraph 7 of the judgment as under: “7.----------------------------------------------------------- In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in Civil and Criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a Criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 14. In G.Sagar Suri & Anr. Vs. State of U.P. and Ors. [ (2000) 2 SCC 636 ], the Hon’ble Supreme Court held in Paragraph 8 of the judgment as under: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a Criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 of the Code has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 15. The Hon’ble Supreme Court again considered the scope and ambit of power under Section 482 of the Code in the case of Hiralal and Ors. V. State of Uttar Pradesh and Ors. Reported in (2009) 11 SCC 89 : AIR 2009 SC 2380 in the following words: “The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well-known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.” 16. 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. 17. On the basis of the written complaint a case under Sections 420/120B of the IPC and Section 29 of the SERFAESI Act, 2002 was registered by the police against the petitioners. However, on conclusion of investigation, the charge-sheet was submitted under Section 420/120B IPC only. 18. Section 420 of the IPC provides for punishment for cheating and dishonestly inducing delivery of property. However, on conclusion of investigation, the charge-sheet was submitted under Section 420/120B IPC only. 18. Section 420 of the IPC provides for punishment for cheating and dishonestly inducing delivery of property. “Cheating” has been defined in Section 415 of the IPC, which is reproduced as below: “415.Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation-A dishonest concealment of facts is a deception within the meaning of this section”. The ingredients and essence of cheating were examined by the Hon’ble Supreme Court in the matter of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. ( AIR 2008 SC 251 ),while considering whether a case for quashing FIR is made out in exercise of power under Section 482 of the Code. It was observed as under: “42. On a reading of the aforesaid section it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning”. In the matter of Dalip Kaur and Ors. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning”. In the matter of Dalip Kaur and Ors. V. Jagnar Singh and another reported in (2009) 14 Supreme Court Cases 696, the Hon’ble Supreme Court had an occasion to examine the provision contained in Section 415of the IPC which defines the cheating. It was observed as under: “8…..An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating”. In the case of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), while examining whether a case of quashing FIR is made out or not, the question which the Hon’ble Supreme Court posed to itself was: “38. The question before us is – whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120B, IPC? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint. While undertaking similar examination in the matter of quashing of FIR, in the case of Dalip Kaur (supra), the Hon’ble Supreme Court stressed upon the approach required to be adopted by the High Court, in following words”. “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception.” 19. “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception.” 19. The entire allegations against the petitioners as stated in the written complaint, FIR and the case diary statements placed on record, reveal that the allegations against the petitioners is that they after taking possession of the premises in question in terms of provision of Section 13(4) of the SERFAESI Act, 2002 on failure by the borrowers to pay off the loan amount, published an ‘Auction Notice’ dated 14.12.2006 in Bengali newspaper ‘Aajkal’ and accordingly the complainant O.P. No.2 participated in the auction on 16.01.2007 and he was declared the highest bidder and the petitioners issued him certificate to that effect and the total bidding amount was Rs.30,21,000/-. The complainant/O.P. No.2 prayed the earnest money of Rs.17,500/- and he also paid Rs.7,37,750/- being 25% of the bid amount and he was handed over a draft copy of the sale deed with the assurance of completion of the registration and delivery of possession on payment of balance amount of Rs.22,65,750/-. On 31.01.2007 on his request he was allowed further time to pay such amount. On 08.02.2007 he came to learn about the pendency of the litigation before this Court in respect of the Auctioned Property. Despite having such knowledge of pendency of the litigation the accused/petitioners asked him to deposit the balance consideration and he deposited the same out of belief and trust. The accused/petitioners deliberately and intentionally dragged the matter of registration and delivery of possession. By issuing letter dated 27.06.2007 the complainant asked the accused/petitioners to register the deed of conveyance and to hand over possession of the Auctioned Property. But they did not do that rather they threatened him. It has been further alleged that the accused /petitioners misled and deceived the complainant to part with the huge amount of Rs.30,21,000/- with full knowledge about the direction of this Court and thus they have dishonestly induced him to part with the said money. But they did not do that rather they threatened him. It has been further alleged that the accused /petitioners misled and deceived the complainant to part with the huge amount of Rs.30,21,000/- with full knowledge about the direction of this Court and thus they have dishonestly induced him to part with the said money. Therefore, considering the substance of the complaint it appears that there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of auction wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay the alleged amount. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the accused/petitioners made any wilful misrepresentation. Even according to the complainant, he took part in the auction which was validly held and his grievance is that the accused/petitioners failed to discharge their contractual obligation. It is not the case of the complainant/O.P. No.2 that at the time of holding the auction possession of the property was not taken by the Bank legally or that the Auctioned Property was either sold to someone else or an agreement to sell in respect of that property was executed in favour of some other person or that such fact was suppressed or that there was some other encumbrance which was suppressed at the time of holding the auction. On the contrary, from the documents it becomes clear that the accused/petitioners had acted in terms of the provisions of law and also in compliance with the order passed by this Court, in a bonafide manner. It appears from the letter dated 9th February, 2007 issued by the Petitioner No.1 to the O.P. NO.2 (page 68 of the case diary) that the entire fact situation was brought to his notice and he was adviced to wait for the decision of the Court and he was also requested to wait for the outcome of the Writ Petition and that the Bank shall proceed in the matter as per decision of the Court. It was further intimated that the complainant might deposit the balance amount but the sale certificate can only be issued by the Bank subject to the decision of the Court. It was further clarified that the Bank is not responsible to any damages or loss caused to the complainant in view of the intervention of the Court. Therefore, in the absence of there being any material, much less the allegation that there was an intention to cheat at the very inception and beginning of the transaction, the entire allegation of fact even if taken on their face value at the best may amount to breach of contract and nothing more. But curiously enough the O.P. NO.2 did not pursue any civil remedy and instead he lodged a complaint under Section 156(3) Cr.P.C. as a short cut measure with malafide intention to harass the present petitioners who are high officials of a Nationalized Bank, who conducted the auction in discharge of their official duty. 20. In the result, the entire Criminal Proceedings initiated against the petitioners are held to be sheer abuse of the process of law. Accordingly the entire criminal proceeding being G.R. Case No.645 of 2008 arising out of Hare Street P.S. Case NO. 119 dated 10.03.2008 under Section 420/120B IPC pending before the Court of Learned Metropolitan Magistrate, 5th Court, Calcutta is therefore quashed. 21. The petition is thus allowed. No order as to costs. 22. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.