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2016 DIGILAW 406 (GAU)

Joutishman Dutta v. State of Assam

2016-05-11

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER (CAV) Paran Kumar Phukan, J. By means of this application under Section 482 of the Cr.P.C., the petitioner prays for quashing of the Charge-Sheet No.368/2012 dated 30.08.2012 and consequential proceedings in G.R. Case No.9991/2011 which is now pending before the learned Additional Chief Judicial Magistrate, Kamrup(M), Guwahati. 2. The factual aspects leading to the filing of the aforesaid petition in brief are that the petitioner is the Director of M/S. Down Town Hospital Limited and they are the owners of the building "DEE TEE Tower" where the "Pantaloon Showroom" is located and they are the absolute owner of the aforesaid tower situated at Down Town Hospital Complex, G.S. Road, Dispur. On being approached by the respondent No. 2, the petitioner leased out approximately 100 sq. ft. carpet area in the ground floor of the Pantaloon showroom which is an open space in front of the showroom to the respondent No. 2 and a written agreement was executed by both the parties laying down the terms and conditions under which the space was leased out to the respondent No. 2. 3. It was stipulated that in the vacant space, the respondent No. 2 would open a food Court and as per the terms of the agreement dated 16.08.2011, she was to deposit a sum of Rs.1,20,000/- as refundable security deposit being the rent for 6 (six) months. The space was leased out for running a food stall in front of the open space of the Pantaloon Showroom. However, the respondent No. 2 and some other tenants started constructing permanent Assam Type Structure for which the GMC Authorities issued notice to the petitioner. The petitioner represented before the GMC Authorities that the construction carried out by the respondent No. 2 was not permanent and no action was called for and they have been issued trade license by the GMC Authorities to run their business. 4. However, the GMC Authorities again issued a notice on 19.10.2011 and on the same day demolished the said structure. The petitioner made arrangement for refunding the security deposits and the respondent No. 2 was notified to collect the cheque from the office of the petitioner but instead of collecting the amount, the respondent No. 2 filed an FIR before the police alleging commission of offence under Sections 420/406 of the IPC against the petitioner. 5. The petitioner made arrangement for refunding the security deposits and the respondent No. 2 was notified to collect the cheque from the office of the petitioner but instead of collecting the amount, the respondent No. 2 filed an FIR before the police alleging commission of offence under Sections 420/406 of the IPC against the petitioner. 5. Dispur Police on the strength of the FIR registered a case and on completion of investigation submitted Charge-Sheet No. 368/2012 on the basis of which G.R. Case No. 9991/2011 under Sections 420/406 IPC was registered and summons was issued to the petitioner to appear before the Court. Being highly aggrieved and dissatisfied, the petitioner has preferred this petition for setting aside and quashing of the Charge-Sheet No. 368/2011 and the proceedings of G.R. Case No. 9991/2011. 6. Heard Mr. K. Agarwalla, learned counsel appearing for the petitioner and Mr. D.P. Chaliha, learned counsel appearing for the respondent No. 2. For respondent No. 1, Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam has appeared. 7. The contention of the learned counsel appearing for the petitioner is that the dispute between the parties is out and out a civil dispute and no criminal liability could be attributed to the accused petitioner and initiation of criminal proceeding is nothing but an abuse of the process of law and as such, the Charge-Sheet as well as the consequential proceedings emanating from the Charge-Sheet are liable to be quashed. 8. In controvertion, Mr. D.P. Chaliha, learned counsel appearing for the respondent No. 2 submits that the petitioner knowing fully well that if any construction is raised over the area which was leased out to the respondent No. 2, the same would be demolished by the GMC Authorities executed the agreement with the respondent No. 2 for wrongful gain and he has taken Rs.1,20,000/- at the time of execution of the agreement and thereby he has cheated the respondent No. 2 and misappropriated the amount paid by her as a security deposit and as such, the petitioner cannot be absolved from criminal liability. 9. Relying on the decision of this Court in Sandip Kar and Ors. v. Pampy Kar reported in 2009 (1) GLT 663, Mr. 9. Relying on the decision of this Court in Sandip Kar and Ors. v. Pampy Kar reported in 2009 (1) GLT 663, Mr. Chaliha, learned counsel submitted that it is not within the ambit and powers of the High Court in a quashing proceeding under Section 482 Cr.P.C. to determine the truth, veracity, correctness or otherwise of the accusations made in the FIR or complaint. The truth, veracity and correctness of the allegations made in the FIR cannot be scrutinised by the High Court at this stage and it is better to be left to the Trial court for taking appropriate decision taking into consideration the entire aspects of the case after recording evidence. 10. Mr. Chaliha also strenuously submits that after taking on lease the respondent No. 2 started construction over the space for running the food Court and for demolition of the same by the GMC Authorities, she has incurred huge loss and according to him, the petitioner should not have entered into the agreement of lease with the respondent No. 2 after he received the notice from the GMC Authorities and for monetary gain he resorted to such a tactic. 11. Before adverting to the submission of the learned counsel appearing for the parties, it would be apposite to have a brief overview of the principles of law relating to exercise of power under Section 482 Cr.P.C. for quashing a criminal proceeding. 12. The Apex Court in a catena of judicial pronouncements has laid down the Principles of law in this aspect of the matter. In the case of State of Haryana and Others v. Bhajanlal and Others reported in 1992 Supp (1) SCC 335, the Apex Court while laying down the scope of interference under Section 482 Cr.P.C., by the High Court observed as under:- "102. In the case of State of Haryana and Others v. Bhajanlal and Others reported in 1992 Supp (1) SCC 335, the Apex Court while laying down the scope of interference under Section 482 Cr.P.C., by the High Court observed as under:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised:- (a) 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; (b) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable 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; (c) 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 offence and make out a case against the accused; (d) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) 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; (f) 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; (g) 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 private grudge." 13. In R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 , the Apex Court observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be used against the accused. From the case of R.P. Kapoor (Supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contents thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 14. In the backdrop of the aforesaid contentions and in the light of the principles laid down by the Apex Court in the various cases referred to above, I have minutely gone through the FIR lodged with the O/C, Dispur Police Station according to which on 16.08.2011, the respondent No. 2 and the petitioner entered into a lease agreement for opening a restaurant in their premises. On 19.10.2011, the GMC Authorities demolished the structure constructed by the respondent No. 2 over the land which was taken on lease and on enquiry the respondent No. 2 came to know that notice was issued to the petitioner by the GMC Authorities raising objection regarding the construction. According to the respondent No. 2, the petitioner having knowledge that the structures would be demolished by the GMC entered into the agreement for wrongful gain. According to the respondent No. 2, the petitioner having knowledge that the structures would be demolished by the GMC entered into the agreement for wrongful gain. The main grievance of the respondent No. 2 is that the Downtown Hospital Authority should not have entered into the lease agreement after receiving the notice from the GMC authorities and by doing so they have cheated the respondent No. 2 and misappropriated the amount which was paid as security deposit. 15. There is no dispute regarding the lease agreement executed between the petitioner and the respondent No. 2 on 16.08.2011, an overview of which reveals that the premises on the ground floor and the adjoining area measuring 100 sq. ft. of the building called "DEE TEE Tower" was leased out to the respondent No. 2 for running a food Court in the open space. At the time of execution, the petitioner who was the lessor represented to the lessee, the respondent No. 2 that he has obtained all relevant and necessary permissions, approvals, sanctions, licenses, assessments from the Municipal Corporation with respect to the building and the Scheduled Premises and the leasing of the Scheduled Premises on a commercial basis which is evident from Clause 5(D) of the lease agreement. It is sought to be established by the respondent No. 2 that the petitioner having full knowledge that he had no permission for leasing out the premises to the respondent No. 2, leased out the same to her for wrongful gain. Clause 5(D) of the lease agreement is reproduced below:- "D. Lessor represents that it has obtained all relevant and necessary permissions, approvals, sanctions, licenses, assessments from the Municipal Corporation/Local or relevant authorities with respect to the building and the Schedules Premises and the leasing of the Schedules Premises on a commercial basis." 16. The lease agreement itself shows that carpet area measuring 100 sq.ft. situated at the ground floor of "DEE TEE Tower" was leased out to the respondent No. 2. The objection of the GMC as reflected in the notice dated 01.10.2011 issued to the petitioner shows that the notice was issued for removal of construction of Assam type structure without permission in setback zone occupied as commercial use. situated at the ground floor of "DEE TEE Tower" was leased out to the respondent No. 2. The objection of the GMC as reflected in the notice dated 01.10.2011 issued to the petitioner shows that the notice was issued for removal of construction of Assam type structure without permission in setback zone occupied as commercial use. Obviously permission is required from the GMC authorities for construction of any type of structure in the setback zone and for constructing the same, the respondent No. 2 ought to have obtained permission from the GMC authorities and for her failure to do so GMC authorities demolished the Assam type structure constructed by the respondent No. 2 over the open space. Clause 7(k) of the lease agreement further stipulates that the lessee will take all permission in operating the food Court from the relevant authorities and under no condition will the business be started without the relevant permission. For her failure to obtain permission from the GMC for operating the food Court over the space leased out to her, the petitioner lessor cannot be held liable. 17. That apart from the FIR lodged by the respondent No. 2 with the O/C, Dispur Police Station, it emerges that when the GMC personnel came for demolishing the structures and when the respondent No. 2 asked them the reasons for such demolition, it was replied to her that the GMC authorities issued notice since last three months. The grievance of the respondent No. 2 as revealed from the FIR is that if the petitioner received the notice from the GMC authorities about three months back, then why the lease agreement was executed with her by the petitioner. The grievance of the respondent No. 2 as revealed from the FIR is that if the petitioner received the notice from the GMC authorities about three months back, then why the lease agreement was executed with her by the petitioner. Looking for an answer to this grievance of the respondent No. 2, I have gone through the records and it is found that the first notice was issued to the petitioner by the GMC authority on 01.10.2011 asking the petitioner to demolish the unauthorized Assam type construction raised over the area which is evidently after the lease agreement was executed on 16.08.2011 which fortifies the stand taken by the petitioner that the GMC authority demolished the unauthorized construction raised over the space by the respondent No. 2 without obtaining permission from the authority and belies the version of the respondent No. 2 that the petitioner having full knowledge that the structure would be demolished entered into the lease agreement for wrongful gain. 18. Moreover, from the correspondence made between the petitioner and the respondent No. 2, it appears that the petitioner after receiving the notice dated 01.10.2011 from the GMC authority, requested them not to demolish the structures over the land as those were temporary structures which itself shows that there was no mens-rea or criminal intent on the part of the petitioner to defraud the respondent No. 2. The claim of the respondent No.2 that the petitioner has not refunded the security deposit of Rs.1,20,000/- is also not based on facts rather it appears that on being demanded by the respondent No. 2, the petitioner immediately responded and issued a Cheque for the aforesaid amount, asked the respondent No. 2 to collect the same from the office of the petitioner but it was the respondent No. 2 who refused to accept the same. 19. Mr. K. Agarwalla, learned counsel appearing for the petitioner submits that the petitioner is still willing to refund the amount which was taken as security deposit to the respondent No. 2 that too with interest accrued on the amount. Mr. 19. Mr. K. Agarwalla, learned counsel appearing for the petitioner submits that the petitioner is still willing to refund the amount which was taken as security deposit to the respondent No. 2 that too with interest accrued on the amount. Mr. Agarwalla, learned counsel, going further submits that there are specific provisions for dispute resolution in the lease agreement itself and for any breach thereof, there was provision for referring the dispute to the sole arbitrator mutually agreeable to both the parties and he strenuously contends that the dispute between the parties is purely a civil one and no criminal liability could be attributed to the petitioner if there was any breach of terms and conditions of the agreement. 20. It is further submitted that a title suit has already been filed by one of the tenants, namely, M/S. R.L. Buildcon Pvt. Ltd. against the petitioner and others vide T.S. No. 277/2011 which is now pending before the learned Civil Judge No. 3, Kamrup and in that case, the learned Civil Judge No. 3 has directed the parties to maintain status-quo. 21. Lastly, Mr. Agarwalla, learned counsel, by referring to the judgment of the Apex Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojira Angre reported in (1988) 1 SCC 692 , submits that no useful purpose is likely to be served by allowing the criminal prosecution to continue against the petitioner on the basis of the facts and circumstances of the case. 22. In Madhavrao (Supra), the Apex Court observed as follows:- "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to a prosecution to continue. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court any while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 23. Taking into consideration the submissions advanced by the learned counsel appearing for both the parties, the facts and circumstances of the case and keeping in view the observations of the Apex Court in various cases referred to above, I am of the considered view that allowing the criminal proceedings to continue would amount to an abuse of the process of law and it would be unjust to allow the process of the criminal Court to be used against the petitioner and consequently, the Charge-Sheet No. 368/2012 and the consequential proceedings of G.R. Case No.9991/2011 arising out of the said Charge-Sheet are liable to be quashed which I accordingly do. 24. Send down the LCR along with a copy of this order to the learned Courts below for information and necessary action.