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2017 DIGILAW 366 (GAU)

Kishor Das v. Pinky Das

2017-03-22

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. Heard Mr. B. Sharma, learned counsel for the petitioner and Mr. B. Gogoi, learned counsel appearing for the opposite party. 2. By the instant application filed under Section 482 CrPC, the petitioner has prayed for setting aside and quashing the impugned order, dated 07.09.2016, passed in Complaint Case No.2294c/2016 by the learned Special Judicial Magistrate, Kamrup (M) at Gauhati and order, dated 15.11.2016, as well as the proceeding in Complaint Case No. 229472016 pending in the Court of the learned SDJM (1), Kamrup (M) at Gauhati. 3. The petitioner's case precisely is that the learned SDJM (I), Kamrup (M), Gauhati took cognizance of the said case being CR 229472016 lodged by the complainant/opposite party herein and issued summons to the petitioner under Section 420 IPC. The contention of the petitioner is that the opposite party along with her husband, namely, Naba Kumar Das, on 02.08.2013, approached the petitioner, who is one of the partners of the firm M/S Kirti Construction and after negotiation, they agreed to purchase a flat and thereupon, the husband of the opposite party, as per the terms and conditions, by way of advance payment, handed over a Cheque of Rs. 9 Lacs, dated 02.08.2013, bearing No.015253 drawn on IDBI Bank from his own account and booked a flat measuring 1040 sq.ft. @ Rs. 2,550/- per sq.ft. in the joint name of himself and his wife i.e, the opposite party herein, against which, the petitioner issued money receipt to the complainant. However, the complainant failed to deposit the required balance amount within the stipulated time. 4. Therefore, on the request of the husband of the opposite party, the petitioner paid a sum of Rs. 2 Lacs, as part payment to the husband of the complainant-opposite party herein, vide Cheque No.029939, dated 10.09.2014 drawn on Axis Bank. The husband of the complainant-opposite party acknowledged the said cheque amount in writing and waived their right over the said flat. However, on 25.05.2016, the petitioner received a notice through the learned Advocate of the complainant-opposite party herein I making certain baseless and false allegations against the petitioner and demanded Rs. 91 Lacs within 10 days of receipt of the notice. I Subsequently, on 26.7.2016, the opposite party filed a complaint case against the petitioner under Section 420 IPC before the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati. 5. 91 Lacs within 10 days of receipt of the notice. I Subsequently, on 26.7.2016, the opposite party filed a complaint case against the petitioner under Section 420 IPC before the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati. 5. According to the petitioner, the husband of the complainant/opposite party herein personally approached the petitioner and told that he had no knowledge about the complaint case and straight way rejected the claim of the opposite party as the advance payment was made from his personal account and even did not authorize his wife/opposite party to I file the said complaint. 6. Mr. B. Sharma, learned counsel for the petitioner submits that the allegations of the complainant/opposite party are out and out a dispute of civil nature between the parties arising out of breach of contract and therefore, no offence under Section 420 IPC has been made out against the petitioner. He further submits that in view of the decision rendered by this Court in the case of Pranjyoti Bhuyan v. State of Assam & Anr. reported in (2014) 3 GLR 329, the criminal proceeding drawn against the petitioner may be quashed. 7. Countering the above argument of the learned counsel for the petitioner, Mr. B. Gogoi, learned counsel appearing on behalf of the opposite party submits that the instant petition is not maintainable as the husband of the opposite party has not been impleaded as party respondent herein as he was also a party to the booking of the flat in question. According to Mr. Gogoi, learned counsel for the opposite party, the petitioner played deception on the opposite party as he failed to deliver the flat to her as per the agreement made at the time of accepting the advance money of Rs. 9 Lacs from her. 8. The impugned order passed by the learned Special Judicial Magistrate, Assam, Guwahati reads as under: "Complainant is present. Today the date is fixed for n/o. I have perused the complaint petition, initial Deposition and the witness examined u/s 202 Cr.P.C. I have heard the learned counsels. I have found sufficient ground for proceeding against the accused Kishore Das u/s 420 IPC only. Accordingly, the cognizance u/s 420 IPC is taken. Issue summon to the accused person. Complainant is to take steps. Fixing 1. 11.16 for appearance." 9. I have found sufficient ground for proceeding against the accused Kishore Das u/s 420 IPC only. Accordingly, the cognizance u/s 420 IPC is taken. Issue summon to the accused person. Complainant is to take steps. Fixing 1. 11.16 for appearance." 9. On perusal of the documents annexed to the petition, it appears that the opposite party and her husband, namely, Naba Kumar Das jointly submitted an application in prescribed form for booking a flat in the proposed site, namely, Esha Enclave by making an advance payment of Rs. 9 Lacs and accordingly. the petitioner issued a receipt in favour of the opposite party vide Money Receipt SI. No. 100, dated 02.08.2013. Thereafter, as the opposite party and her husband did not make any correspondence with the petitioner and no outstanding amount was also paid even after lapse of considerable time, the petitioner issued a letter, dated 13.11.2013 to them requesting to pay the said balance amount within 15(Fifteen) days of receipt of the said letter. In response thereto, the husband of the opposite party' sent a letter to the petitioner expressing his inability to pay the balance amount due to some personal problems and expressed his willingness to purchase the flat. By the said letter, the husband of the opposite party also requested the petitioner to return the booking amount to his account from where the payment was initially made, if the terms and conditions permitted. 10. Thereafter, on 09.09.2014 the husband of the opposite party received Rs.2 Lacs only from the petitioner as part payment of the return money and accordingly issued an acknowledgement receipt in favour of the petitioner's firm. However, by a pleader's notice, dated 25.05.2016, the opposite party asked the petitioner to return back the entire amount paid to him towards advance payment for booking of a flat within a period of 10 days from the date of receipt of the notice. Thereafter, the opposite party filed a complaint case being C.R. Case No. 229472016 in the Court of the learned Chief Judicial Magistrate, Kamrup (M), Gauhati against the petitioner on 26.07.2016, whereupon, after making necessary enquiry, the Court of the learned Special Judicial Magistrate, Assam at Gauhati took cognizance of the offence under Section 420 IPC against the petitioner and issued Summons accordingly. Section 415 IPC defines 'cheating' as follows: "415. Cheating. Section 415 IPC defines 'cheating' as follows: "415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to constant 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". 11. The above definition of cheating has two parts. While the first part relates to property'. the second part need not necessarily relates to property. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making promise with an intention to retain the property. The essence of the offence is that there should be deception either by express words or implied by conduct which may be direct or indirect. The offence of cheating is punishable under Section 420 IPC and the offence is committed when on the basis of fraud or misrepresentation, the complainant is induced to part with property or valuable security. Therefore, if the alleged victim is not induced to deliver any property or valuable security, the offence under Section 420 cannot be said to have been committed. The concept of deception should be present from the very start of the transaction between the parties. 12. On careful scrutiny of the allegations made in the complaint petition and the initial deposition of the complainant along with the documents annexed to the petition, it is apparent that there was no dishonest intention at the time of initial transaction made by the opposite party and her husband with the petitioner as the proposal to book a flat was made jointly by the opposite party and her husband and as such no dishonest transaction was there on the part of the petitioner and even thereafter, at the instance of the husband of the opposite party, when the petitioner returned an amount of Rs.2 Lacs out of Rs. 9 Lacs received by way of advance money for the said purpose on obtaining acknowledgement receipt thereof. 9 Lacs received by way of advance money for the said purpose on obtaining acknowledgement receipt thereof. The facts and circumstances as emerged from the complaint and the documents annexed thereto, the dispute between the parties appears to be apparently civil in nature being related to contractual obligations and therefore, no criminal liability can be fastened upon the petitioner under Section 420 IPC. 13. Situated thus, this Court is of the considered opinion that the criminal proceeding drawn against the petitioner vide Complaint case No.2294c/2016 is not maintainable. 14. Accordingly, the impugned order, dated 07.09.2016, passed in C.R. No. 229472016, passed by the learned Special Judicial Magistrate, Kamrup (M), Guwahati, whereby cognizance has been taken under Section 420 IPC against the petitioner and the criminal proceeding being C.R. case No. 229472016 are set aside and quashed as prayed. 15. The Criminal Petition stands allowed. 16. Let a copy of this judgment and order be forwarded to the Court of learned Special Judicial Magistrate, Kamrup (M), Guwahati.