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2015 DIGILAW 977 (CAL)

Siddhartha Roy Karmakar v. State of West Bengal

2015-12-21

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. 1. The accused petitioner has filed an application under Section 482 of the Code of Criminal Procedure challenging the order dated 09.07.2012 passed by the learned Additional Chief Judicial Magistrate, Barrack pore in connection with Ghola Police Station Case No. 389 of 2011. 2. According to the petitioner, learned Magistrate while taking cognisance failed to appreciate that even in a case where allegations are made in regard to failure on the part of the accused to keep the promise, in the absence of culpable intention at the time of making initial promise being absent, no offence under Section 420 of Indian Penal Code can be said to have been made out. He further contended that it is a dispute of civil nature and it should not be allowed to be the subject matter of a criminal offence. 3. The basis for setting the law into mention is an application under Section 156 (3) of Code of Criminal Procedure filed by the opposite party, in which he had prayed for initiation of a criminal proceeding under Section 406, 420 and 422 of Indian Penal Code. The learned Chief Judicial Magistrate, Barasat has considered the said application and directed the police station concerned to register a case. In the FIR, it has been stated that the accused petitioner had entered into an agreement with the present opposite party that the opposite party will act as an agent of him for persuasion of his Land Acquisition Cases pending before the Land Acquisition Collector, Burdwan and if the said compensation amount is paid he would in turn pay 25 per cent of the compensation amount to the present opposite party as the service charge of the agent. The opposite party in his allegation had contended that he had acted as an agent of the accused petitioner and looked after the Land Acquisition Cases on behalf of the petitioner. Curiously enough, when the compensation amount was paid to the accused petitioner, they did not pay any single farthing in terms of the agreement which was notarised by both parties. According to him, the accused petitioner has committed cheating and breach of trust also. 4. Curiously enough, when the compensation amount was paid to the accused petitioner, they did not pay any single farthing in terms of the agreement which was notarised by both parties. According to him, the accused petitioner has committed cheating and breach of trust also. 4. At the time of hearing, learned Counsel appearing on behalf of the accused petitioner contended that there is no ingredient of Section 406/420 and 422 of Indian Penal Code and so the FIR lodged against them is required to be quashed. 5. On perusal of the record I find that there is an agreement by and between the parties in which this accused petitioners promised to pay 25 per cent of the compensation money to the opposite party being the agent of the accused petitioner as service charge. Learned Counsel appearing on behalf of the accused petitioner vehemently opposed the allegation lavelled against them contending inter-alia that such a contract is void and so it cannot be given effect to. 6. It appears from page 17 of the revisional application vide Para VIII that the charge-sheet has been submitted in this case. Whether the said alleged contract is void or not that can be ascertained only after taking evidence and not at this stage. On the contrary, it appears from the letter of Swarup Sarkar, an advocate of Katwa Court, who claimed himself as an advocate of the accused petitioner, addressed to Gouranga Saha, advocate of Barrackpore Court, stating that the accused petitioner never executed any agreement dated 28.01.2009 in favour of the opposite party. He made out a case that the opposite party managed to procure his client's signature on a non-judicial stamp paper worth Rs. 10 and also some other papers by practicing fraud and misappropriation upon his client. On being asked, it is submitted at the bar that till today the accused petitioner did not file any criminal case against the opposite party for that alleged fraud practice. On the contrary, they challenged the contract itself that it cannot be effect to as it is opposed to public policy. He did not challenge his signature in the said alleged agreement. 7. On the contrary, they challenged the contract itself that it cannot be effect to as it is opposed to public policy. He did not challenge his signature in the said alleged agreement. 7. Since charge-sheet has been submitted so at this stage it cannot be ascertained without going through evidence that if at all the said contract was opposed public policy or not, and if there was any relation between the accused petitioner and the opposite party as principal and agent and if the present accused petitioner was influenced by misrepresentation or not. All these things are to be considered in the light of the evidence to be adduced before the Court below. It is perhaps needless to say that while disposing of an application under Section 482 of Code of Criminal Procedure, the revisional Court shall not go for a full-dressed trial. Only the revisional Court is to see if prima facie substance or allegation is there or not. 8. Considering the circumstances, I am of the view that it is too early to hold that there is no merit in the FIR. 9. Accordingly, the revisional applications stand dismissed on contest. Learned Court below is hereby directed to proceed with the criminal case as expeditiously as possible, without being influenced by any of the observation made above. 10. Let a copy of this order be sent to the learned Court below for information and taking necessary action in accordance with law. Revisional application dismissed.