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2016 DIGILAW 1037 (CAL)

Chandan Kumar Saha v. Anil Kumar J. Bavishi

2016-12-16

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. These two criminal revisions have been heard together. 2. The petitioner of CRR 2415 of 2016 is Chandan Kumar Saha, who is the accused no.5 and the petitioner of CRR 2416 of 2016 is Kashinath Singh, who is the accused no.4 both in Complaint Case No. 3491 of 2015 now pending before the learned 8th Judicial Magistrate, Alipore. 3. In these two revisional applications, it has been prayed for by those accused-petitioners that the said proceeding which was initiated before the learned Chief Judicial Magistrate, South 24-Parganas at Alipore, under Sections 420/406/120B of the Indian Penal Code be quashed. 4. The fact relevant for the purpose of adjudication of these two revisional applications can be stated in brief thus: That one Rai Hitendra Nath Chaudhuri and Rai Hirendra Nath Chaudhuri entered into an agreement dated 22.05.1992 with the petitioners and 8 others to sale a plot of land and one agreement to sale was executed on 2nd May, 1992. One Binay Krishna Singh and his wife Bimala Singh that is the accused Nos.9 and 10 (O.P. Nos 2 &3) of the complaint introduced the complainant (O.P. No.1) and his brother (O.P. No. 4) to the accused Nos. 1 to 8 and Late Suhas Roy and his son Late Chinmoy Roy. It is also the case of the complainant that accused No.9 who was in property matters allured the complainant and his said brother to invest in property. 5. The complainant and his brother were introduced by accused No.9 with the other accused Nos.1 to 8 and those two that is Suhas Roy and Chinmoy Roy both since deceased and they agreed to transfer their right, title and interest over the suit property at a price of Rs.40,000/- per cottah in favour of the complainant and his brother and the said agreement to sale was effected between the complainant and his brother in one side and accused Nos.9 and 10 on other hand (first party) and accused Nos. 1 to 8 with those two pre deceased persons on the other hand/second party. The original copy of the agreement dated 24.02.1996 was seized and it is lying with Maniktala Police Station in connection with that P.S case No.259 dated 11.03.2003 about which the complainant came to know through Lalbazar, the headquarters of Kolkata Police only after taking recourse to Right to Information Act. 6. The original copy of the agreement dated 24.02.1996 was seized and it is lying with Maniktala Police Station in connection with that P.S case No.259 dated 11.03.2003 about which the complainant came to know through Lalbazar, the headquarters of Kolkata Police only after taking recourse to Right to Information Act. 6. The fact remains that even though the said document is the main basis of this litigation the said document was not produced before the learned Magistrate when the process was issued against accused person under Section 420 of the IPC. The magistrate did not venture call for the said agreement. 7. It is also the case of the complainant that in furtherance of that deal for the purchase of the property a sum of Rs.5,00,250/- was paid to different accused person in total and out of that amount Rs.76,500/- was paid to the petitioner of the CRR No.2415 of 2016 and same amount was paid to Kashinath Singh that is the petitioner in CRR NO.2416 of 2016 both by separate account payee cheques dated 24.02.1996 drawn on ANZ Grindlays Bank (Now known as Standard Chartered Bank), Brabourne Road Branch, Kolkata, both by Vimal J. Bavishi, the brother of the complainant. It has been claimed in the complaint that the complainant believed on such representation given by all the accused persons as duly noted in the complaint. 8. It may also be mentioned that Binoy Kumar Sinha, i.e. first party no.1, filed one complaint being C. Case No. 630 of 2003 under Section 420 of the I.P.C. to treat the said petition as complaint as per the provision of Section 156(3) of the Code of Criminal Procedure. Ultimately, the learned Magistrate directed the Officer-in-Charge of the Manicktala Police Station to start a case, being Manicktala P.S. Case No. 259 of 2003. However the details of that case is not available before this court. 9. Ultimately, the learned Magistrate directed the Officer-in-Charge of the Manicktala Police Station to start a case, being Manicktala P.S. Case No. 259 of 2003. However the details of that case is not available before this court. 9. It is the further case of the petitioner that annexure P7 (typed copy) will prove that the said Maniktala P.S case No.259 of 2003 ended in compromise as per one discussion held on 13.09.2003 in between Binoy Kumar Singh (accused on the other hand) and during the discussion the matter was amicably settled on payment of Rs.1,00,000/- only by the second party to the first party in cash and as per annexure P-8 dated 15.09.2009 Rs.1,15,000/- was received by that Binay Kumar Singh from Chandan Kumar Saha (the petitioner of CRR NO.2415 of 2016). 10. It is the further case of petitioners that a compromise was effected between the parties on 13-09-2003 (annexure P-7) wherein this Binoy Kumar Singh received Rs. 1,00,000/- from Kashinath Singh and as per annexure P-8 dated 15-09-2009 Rs. 1,15,000/- was received by that Binoy Kumar Singh from Chandan Kumar Saha, the petitioner of CRR No. 2415 of 2016. 11. Mr. Chakraborty, learned Advocate appearing on behalf of the petitioners, took me to annexure P-9 that is the order dated 13-09-2004 wherein the learned Additional Chief Judicial Magistrate, Sealdah, South 24-Parganas, discharged the accused persons from Section O-1 Case No. 259 of 2003. Thus, the said case of Maniktala Police Station lost its force. 12. It is the contention of the learned Advocate for the petitioners that the other second party, Anil Kumar J. Bavishi, filed this Complaint Case No. 3491 of 2015 banking upon the agreement (annexure P-2, typed copy) and process was issued against as many as 10 accused persons including the present petitioners. It is the claim of the learned Advocate that there was no element of cheating in that agreement and nothing made out in the complaint to prove a case of cheating or criminal breach of trust was committed in respect of the property in question, the subject matter of the complaint case. 13. Learned Advocate for the petitioners submitted that when Annexure –P2 was executed, the intending seller had no knowledge that the property was encumbered one and was vested to the State. 13. Learned Advocate for the petitioners submitted that when Annexure –P2 was executed, the intending seller had no knowledge that the property was encumbered one and was vested to the State. He further reiterated that neither there was any entrustment nor was there any element of cheating and as such the complaint being frivolous, there is no reason to make the said complaint alive and this court by exercising discretion granted under Section 482 of the Code of Criminal Procedure may quash further proceeding of that complaint case referred to above. 14. Learned Advocate cited a decision of the Apex Court reported in (1996) 6 SCC 32 (paragraph 7) wherein the Apex Court held on the fact, as it was before that court, that there was no evidence to show that the appellant knowingly made any false representation much less dishonestly and fraudulently and as such the basic ingredients of the offence of cheating were therefore missing in the case and the Apex Court was pleased to acquit the appellant in respect of the charge punishable under Sections 420/34 of the Indian Penal Code. He cited another decision of the Apex Court reported in (2015)8 SCC 293 (Vesa Holdings Private Ltd. & Anr. Vs. State of Kerala & Ors.) wherein the Apex Court in paragraph 12 of the judgement proceeded to say that it is a settled proposition of law that every breach of contract give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. 15. In paragraph 12 of the said judgement, the Apex Court proceeded to say that the given set of fact ventilated before the Apex Court may make out a civil wrong as also a criminal offence and only because the civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The court further observed that the real test is whether the allegation in the complaint disclosed the criminal offence of cheating or not. 16. He cited another decision oft the Apex Court as reported in (2005) 3 SCC 670 (Suresh Vs. The court further observed that the real test is whether the allegation in the complaint disclosed the criminal offence of cheating or not. 16. He cited another decision oft the Apex Court as reported in (2005) 3 SCC 670 (Suresh Vs. Mahadevappa Shivappa Dhanannava & Anr.) wherein the Apex Court in paragraph 11 of the judgement decided the fate of a complaint which was filed on 17/05/1999 after a lapse of ten and a half years and thereafter, the court held on other facts as ventilated before the court that the private complaint filed by the Respondent no. 1 is not at all maintainable at this distance of time. 17. He cited another decision of the Apex Court as reported in (2015) 9 SCC 96 (Robert John D’Souza & Ors. Vs. Stephen V. Gomes & Anr.) (paragraph nos. 8, 9 and 10) wherein the Apex Court relying upon its decision as reported in AIR 1968 SC 700 (State of Gujarat Vs. Jaswantlal Nathalal) observed that a mere transaction of sale cannot amount to an entrustment. In (2014) 2 SCC 683 (Ghanshyam Vs. State of Rajasthan) the Apex Court relying upon its own decision as reported in (2008) 2 SCC 561 (Onkar Nath Mishra Vs. State (NCT of Delhi) held that in an offence of criminal breach of trust, two distinct parts are involved – (1) that creation of an obligation to the property over which dominion or control is acquired by the accused and (2) is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. 18. Regarding the non-application of judicial mind, he cited a decision of the Apex Court as reported in (2015) 12 SCC 420 (Mehmood Ul Rehman Vs. Khazir Mohammad Tunda & Ors.) wherein the Apex Court observed that before issuance of a process the court must take judicial notice of certain fact which constitutes an offence as to set in motion the process of criminal law against the person is a serious matter and that it cannot be inferred that the learned Magistrate applied its judicial mind and the order must be speaking one. In this decision the Apex Court relied upon on its own decision as reported in (1998) 5 SCC 749 (Pepsi Food Limited Vs. Judicial Magistrate). 19. He referred another decision of the Apex Court as reported in (2014) 10 SCC 663 (Binode Kr. In this decision the Apex Court relied upon on its own decision as reported in (1998) 5 SCC 749 (Pepsi Food Limited Vs. Judicial Magistrate). 19. He referred another decision of the Apex Court as reported in (2014) 10 SCC 663 (Binode Kr. & Ors. Vs. State of Bihar & Anr.) wherein the Apex Court held on the given fact before it that the civil liability cannot be converted to criminal liability and further proceeding of such a case will be an abuse of process of the court. The other decisions have also been dealt with. 20. Mr. Kabir, learned Advocate, appearing on behalf of the opposite party no. 1 (the complainant in Complaint Case No. 3491 of 2015) and his brother, the opposite party no. 4, that his above mentioned clients were introduced by the opposite party nos. 2 and 3 (non-contesting) who are accused nos. 9 and 10 in the complaint, i.e. Benoy Kumar Singha and his wife, Bimala Singha. They introduced the said complainant, opposite party nos. 1 and 4, to the intending seller of the property being the accused nos. 1 to 8 in the complaint of whom the accused no. 4, Kashinath Singh and Chandan Kumar Saha are the petitioners before this court in these two criminal revisional applications referred to above. 21. He further submitted that one unregistered agreement of sale was executed between the eight sellers on the one hand and all the opposite parties in the other hand wherein it was agreed that the opposite party nos. 1 and 4 will have to pay the entire amount of consideration money to those eight sellers to the tune of Rs.1.20 crore for 15 Bighas at the price of Rs.40,000/- per cottah and that happened in the year 1996, to be more precise on 24-02-1996. 22. Mr. Kabir further submitted that the opposite party nos. 1 and4 issued eight cheques in total to the eight sellers for a total amount of Rs.5,00,250/- and cash payment of Rs.8,00,000/- was also made. Even on encashment of the cheques and receipt of the cash amount, those eight sellers did not register the deeds in favour of the opposite party nos. 1 and 4. He further submitted that nothing was revealed to those opposite parties that the land had already been vested to the State. Thereafter, the opposite party nos. Even on encashment of the cheques and receipt of the cash amount, those eight sellers did not register the deeds in favour of the opposite party nos. 1 and 4. He further submitted that nothing was revealed to those opposite parties that the land had already been vested to the State. Thereafter, the opposite party nos. 1 and 4 took up the matter with the introducers, i.e., the accused nos.9 and 10 to pay back the money and those introducers entered into one criminal conspiracy with these two petitioners and the introducers claimed that actually the money was advanced by them and not by the opposite party nos. 1 and 4. To establish such claim, one complaint case was filed which was treated as FIR under Section 156 (3) of the Cr.P.C., being Complaint Case No. 630 of 2003 before the learned Additional Chief Judicial Magistrate, Sealdah by Benoy Singh against Kashinath Singh (Annexure-P3) which was ultimately registered as Maniktala P.S. Case No. 259 of 2003 and in that case, these opposite party nos. 1 and 4 were not kept aware even though the opposite party no.4 paid the consideration money. In that case, some amount was allegedly paid by the accused no. 4, namely, Kashinath Singh, to the accused nos. 9 and 10, i.e., Benoy Kumar Singha and Bimala Singha. Thus, those two introducers tried to develop a case that actually money was advanced by them and not by the opposite party nos. 1 and 4. He further submitted that Kashinath Singh cannot escape through such camouflage. 23. Mr. Kabir further submitted that actually these two accused persons started one conspiracy with the two introducers that is accused Nos. 9 and 10. He also took me to the complaint that the original agreement dated February 24, 1996 is still under seizure in connection with Maniktala Police Station Case No. 259 dated September 11, 2003. 24. He took me to paragraph 12 of the complaint to substantiate his claim in this regard. He also took me to internal page 6 of the complaint to show that actually the account payee cheque bearing No. 312112 dated February 24, 1996 for Rs. 76,500/- was drawn in favour of Kashi Nath Singh (A-4) but that was actually issued by the opposite party No. 4, the brother of the complainant. 25. He also took me to internal page 6 of the complaint to show that actually the account payee cheque bearing No. 312112 dated February 24, 1996 for Rs. 76,500/- was drawn in favour of Kashi Nath Singh (A-4) but that was actually issued by the opposite party No. 4, the brother of the complainant. 25. He further submitted by taking me again to that page to show that actually the cheque No. 321080 dated February 24, 1996 for Rs. 76,500/- was drawn in favour of the petitioner of CRR 2415 of 2016, Chandan Kumar Saha (A-5) by the brother of the complainant opposite party no.4. He contended to consider the argument of the other side that as if those two cheques were issued by opposite party No. 2, Binoy Kumar Singh (A-9) and that claim is a travesty of truth. 26. Thus, he submitted that nothing was paid by Kashi Nath or Chandan in favour of the opposite party Nos. 1 and 4 and that Maniktala PS case no.259 of 2003 was got-up case just to defraud the complainant. 27. He further submitted by taking me to paragraph 14 of the complaint to say that the case of cheating has been well reflected in that paragraph as that Rs. 76,500/- was not paid by Kashi Nath. He further submitted that the claim of Kashi Nath that he paid Rs. 1 lakh to Binoy (A-9) is also false. 28. He took me to annexure ‘P-8’ of CRR 2415 of 2016 to say that actually Rs. 1,15,000/- was shown to have been received by accused No. 9, Binoy Kumar Singh for and on behalf of Bimala Singh his wife, Anil Bavishi and Bimal Bavishi. Thus he contended that this alleged payment of Rs. 1,15,000/- made by Chandan Kumar Saha (A-5) is fictitious one and this Court cannot rely on such document and it is the question to be assessed by the learned Trial Court. 29. He also took me to page 7 of CRR 2416 of 2016 to show that herein also Binoy and Kashi Nath were the two signatories regarding the settlement of the dispute on payment of Rs. 1 lakh which have reference to Case No. 259 dated September 11, 2003 under Section 420. On this point Mr. 29. He also took me to page 7 of CRR 2416 of 2016 to show that herein also Binoy and Kashi Nath were the two signatories regarding the settlement of the dispute on payment of Rs. 1 lakh which have reference to Case No. 259 dated September 11, 2003 under Section 420. On this point Mr. Kabir submitted that his client never signed on this document as such this document cannot bind his client and that may be assessed only at the time of trial. 30. He took me to paragraphs 4 and 5 of the revisional application giving rise to CRR 2416 of 2016 to say that an agreement is admitted and that this petitioner claimed that he received a sum of Rs. 76,500/- vide cheque No. 312112 dated February 24, 1996 drawn on ANZ Grindlays Bank, Brabourne Road Branch by Bimal J. Bavishi, the brother of the complainant. Thus it is the admitted position that this revisionists received the said amount from the opposite party no.4 and it is the admitted position. 31. Regarding the other CRR No. 2415 of 2016 by taking me to paragraph 5, Mr. Kabir submitted that if this is the admission by the petitioners then the story of settlement by Maniktala Police Station in the case number referred to above by Binoy and another with the complainant is the myth. Regarding the payment of Rs. 1 lakh as claimed by the petitioner in CRR 2416 of 2016 Mrs. Kabir submitted that the petitioner is duty–bound to put that aspect before the learned Trial Court. He also claimed that the claim of the petitioner as in paragraph 12 of the revisional application that the complainant received Rs. 1 lakh is also a false statement. 32. He further submitted that in that proceeding under Section 482 no matter can be decided which is based on fact and the Trial Court must be given an opportunity to decide the question of fact. He took me to the complaint to show that the element of cheating was duly divulged in the said complaint and the Trial Court is to assess the matter. The accused petitioner cannot succeed in this case by quashing the proceeding by exercising extraordinary power granted to this Court under Section 482 of the Code of Criminal Procedure. 33. He took me to the complaint to show that the element of cheating was duly divulged in the said complaint and the Trial Court is to assess the matter. The accused petitioner cannot succeed in this case by quashing the proceeding by exercising extraordinary power granted to this Court under Section 482 of the Code of Criminal Procedure. 33. Regarding 406 of the Indian Penal Code he submitted that the money was duly entrusted and that all deeds were handed over to the accused persons and that even the original agreement to sale executed in the year 1996 is still in the custody of Maniktala Police Station, being seized from this petitioner. 34. He also took me to internal page 61 of the photocopy of the Complaint Case No. 630 of 2003 as is in running page 61 annexed in both the revisional applications to say that the claim of the petitioners that Rs. 76,500/- was paid by Binoy Kumar Singh is also not true in view of the admissions made in paragraph 5 of the said applications about which I have already referred to. 35. On the point of delay Mr. Kabir submitted that there is no delay in lodging of the complaint as the intervening days were passed in transactions between the parties and even filing of two complaint cases, being Complaint Case No. 1475 of 2014 and Complaint Case No. 1424 of 2014, before the learned Chief Judicial Magistrate, North 24-Parganas at Barasat by the accused Nos. 3 and 5 as per complaint and both the cases have ended in final report that the offence was made out and the offence as alleged in the complaint being continuing one, it cannot be said that it is time barred. 36. Regarding the decisions of the Apex Court as cited by the learned Counsel appearing on behalf of the petitioners Mr. Kabir submitted that those decisions cannot apply on the factual matrix of this case even those are not principally good. 37. Regarding the application of mind by the learned Magistrate Mr. 36. Regarding the decisions of the Apex Court as cited by the learned Counsel appearing on behalf of the petitioners Mr. Kabir submitted that those decisions cannot apply on the factual matrix of this case even those are not principally good. 37. Regarding the application of mind by the learned Magistrate Mr. Kabir took me to the order dated May 12, 2016 as passed in connection with the aforesaid Complaint Case No. 3491 of 2015 to say that the learned Trial Court duly applied its mind and even perused the police report as submitted under Section 202 of the Code of Criminal Procedure submitted by the officer-in-charge by the Bhawanipur Police Station. 38. In reply Mr. Arunangshu Chakraborlty, learned Advocate appearing on behalf of the petitioners submitted that this complaint was filed after a gap of 13/14 years and as such only on that ground the complaint is only to be quashed by exercising the discretion granted under Section 482 of the Criminal Procedure Code. 39. Learned Counsel further argued that it is evident to gather from the complaint that there was an intention for cheating and as such Section 420 cannot be clamped. 40. This court has considered in details the fact of this case and has also taken note of the arguments advanced by the learned advocates representing the parties. The scope of Section 482 of the Cr.P.C. is very limited in a quashing proceeding and the superior court can only quash a proceeding if its further continuance will be abuse of process of law. 41. On scrutiny of the complaint which is the basis of this criminal revisional application this Court is satisfied that several facts are to be proved before the learned trial court and this court cannot shut the mouth of the complainant by quashing the said proceeding pending before the learned trial court without giving him a liberty to adduce evidence as regards the cheating as well as criminal breach of trust. This Court is prima facie satisfied that both these petitioners blew hot and cold at the same time and they tried to suppress the things which ultimately came out as true before this court. They tried to hush up the matter by registering one complaint case which was ultimately registered as Maniktala P.S. Case No.259 of 2003 and it was one collusive case just to defraud the present complainant and his brother. They tried to hush up the matter by registering one complaint case which was ultimately registered as Maniktala P.S. Case No.259 of 2003 and it was one collusive case just to defraud the present complainant and his brother. 42. It is very unfortunate to note that in that proceeding neither this complainant nor his brother were made signatories to the compromise. This Court is prima facie satisfied that it was the Opposite Party No.4 who advanced the money to the tune of Rs.5 lakh odd by different cheques and two cheques were received by these two petitioners before this court and they cannot now say that actually such money was paid by the accused No.9 (opposite party no.3). It is true that while passing the order to register one police case on the complaint the learned trial court did not peruse that compromise petition which is one seized item lying before Maniktala police station. The first effort of the court will be to collect the said item from that police station and thereafter to proceed with this complaint case accordingly. 43. This court is not willing to ventilate its mind further while answering this 482 Cr.P.C proceeding as that may lead to pre-judging of the complaint case. Freehand is to be given to the learned trial court to judge the complaint case on merit on appreciating both oral and documentary evidence which may be placed before that court. What has come out before this court is enough to say that there is no merit in these two revisional applications which are fit to be dismissed and I do that by exercising power granted to this Court under Section 482 of the Code of Criminal Procedure. It is needless to say that such power is to be exercised very sparingly and only in deserving cases. This court may reiterate that it is not that deserving case on which this court can exercise such extraordinary power. 44. Thus, both the revisional applications stand dismissed on contest as against the opposite party nos.1 & 4 and ex-parte against the opposite party nos.2 & 3. 45. There will be no order as to costs. 46. Department is directed to forward a copy of this order to the learned trial court at once for early disposal of the complaint case referred to above.