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2018 DIGILAW 204 (CAL)

Aashiama Realty v. State of West Bengal

2018-02-01

DEBI PROSAD DEY

body2018
JUDGMENT : Debi Prosad Dey, J. The petitioner company through its authorized representative filed a petition of complaint before the learned 2nd Additional Chief Metropolitan Magistrate-II, Kolkata disclosing commission of offence by the opposite party nos. 2 to 5 and two others namely Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay punishable under Sections 420/406/120B of the Indian Penal Code. Learned Magistrate accordingly after compliance of the provisions of Section 200 of the Code of Criminal Procedure issued process against all the accused persons. 2. The order was challenged before the learned revisional Court on the ground that there was a clause of arbitration and the learned Trial Court did not comply Section 202 of the Code of Criminal Procedure at the time of issuing process. The learned 1st revisional Court accepted such proposition and allowed the revisional application and thereby set aside the order passed by the learned Chief Metropolitan Magistrate, 19th Court, Calcutta. This application under Section 482 of the Code of Criminal Procedure is filed against the order dated 16.06.2016 passed by the learned Additional District & Sessions Judge, Bench No. II, Bichar Bhawan, Calcutta in Criminal Revision Case No. 162 of 2014. 3. With the leave of the Court the opposite parties have filed affidavit-in-opposition wherefrom it transpires that that one Ram Chandra Chattopadhyay died on 16.04.2012 and Smt. Bimala Chattopadhyay died on 03.11.2005, though process was issued against them also by the learned Court. The case of the prosecution, in brief. is that one Anil Krishna Saha projected himself as the power-of-attorney holder of the rightful owners of such land and executed an agreement of development of such land with the complainant. Rs. 45 lacs was paid to opposite party no. 2. It is evident from the documents annexed with the application that such power-of-attorney was executed in favour of Anil Krishna Saha in the year 1990. The agreement was executed by and between the parties on 23rd October 2013. It is crystal clear to show that the opposite party no. 2 had definite knowledge about the deaths of Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay. Such factum of deaths of the aforesaid two persons has been disclosed by opposite party no. 2 in his affidavit-in-opposition, therefrom it may certainly be held that such Anil Krishna Saha, opposite party no. 2, had definite knowledge of the deaths of Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay. Such factum of deaths of the aforesaid two persons has been disclosed by opposite party no. 2 in his affidavit-in-opposition, therefrom it may certainly be held that such Anil Krishna Saha, opposite party no. 2, had definite knowledge of the deaths of Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay. The power-of-attorney executed by Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay (since deceased) came to an end on the dates of their deaths. Secondly, the averments in the petition of complaint further reveals that opposite party no. 2 did not adhere to any of the terms of such agreement and did not do anything despite receipt of Rs. 45 lacs from the petitioner company. 4. The quintessence of cheating is deception. Despite having knowledge about the deaths of the aforesaid persons, Anil Krishna Saha, opposite party no. 2, executed such power-of-attorney on behalf of some dead persons. That clearly reveals that opposite party no. 2 had no intention of giving effect to the agreement dated 23rd October 2013 executed by and between the parties and thereby he has compelled the petitioner company to part with Rs. 45 lacs in favour of opposite party no. 2. Secondly, it is also evident from the documents annexed with the revisional application that the land in question was sold away prior to execution of such agreement by opposite party nos. 3, 4 and other accused persons. This action on the part of the rightful owners cannot be beyond the knowledge of the opposite party no. 2 and his family members since they were parties to such sale and opposite party no. 2 despite having knowledge about such sale of such properties had executed such agreement with the petitioner company. The complainant filed such petition of complaint before the Court of learned Magistrate and the learned Magistrate after considering the facts and circumstances of this case issued process against the accused. However, due to lack of knowledge, the complainant could not mention in his petition of complaint that Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay had expired in the meantime. Such fact has only been disclosed in the affidavit-in-opposition of opposite party no. 2. The agreement dated 23rd October 2013 is non-existent in law since the opposite party no. 2 is not in a position to give effect to such agreement. Such fact has only been disclosed in the affidavit-in-opposition of opposite party no. 2. The agreement dated 23rd October 2013 is non-existent in law since the opposite party no. 2 is not in a position to give effect to such agreement. Learned revisional Court has erroneously relied on the contents of such agreement and thereby allowed the revisional application. In effect, the agreement was executed and used as an instrument to cheat the petitioner company and accordingly the said agreement is not a valid one in the eye of law. 5. Learned Advocate appearing on behalf of the petitioner has relied on the following reported decisions: (i) Judgments Today 1999 (6) SC 618 (Trisuns Chemical Industry v. Rajesh Agarwal) (ii) (2014) 1 C. Cr. L.R (Cal) 150 (Shyamal Kumar Goswami v. Ashim Mukherjee). 6. In Trisuns Chemical Industry's case (supra) the Hon'ble Apex Court has specifically held that despite having such agreement of arbitral clause the Hon'ble High Court was not at all justified in setting aside the order of summons issued by the trial Court. 7. In Shyamal Kumar Goswami's case (supra) it has been observed by our High Court that non-compliance of Section 202 of the Criminal Procedure Code can only vitiate the entire proceeding when action causing non-compliance of Section 202 of the Criminal Procedure Code can only vitiate the proceedings if it substantially affect the case of the accused resulting in failure of justice in terms of Section 465 of the Code of Criminal Procedure. 8. Learned Advocate appearing on behalf of the opposite party no. 2 has referred the following decisions: (i) (2013) 1 C. Cr. L.R (SC) 510 (Udai Shankar Awasthi v. State of Uttar Pradesh (ii) (2014) 4 WBLR SC 378 (Chatterjee Petrochem Co. v. Haldia Petrochem Ltd.) (iii) 2013 (1) AICLR 364 (Sameer Bharati v. State of Haryana) (iv) 2015 (3) AICLR 257 (Mehmood UI REhman v. Khazir Mohammad Tunda). 9. 2 has referred the following decisions: (i) (2013) 1 C. Cr. L.R (SC) 510 (Udai Shankar Awasthi v. State of Uttar Pradesh (ii) (2014) 4 WBLR SC 378 (Chatterjee Petrochem Co. v. Haldia Petrochem Ltd.) (iii) 2013 (1) AICLR 364 (Sameer Bharati v. State of Haryana) (iv) 2015 (3) AICLR 257 (Mehmood UI REhman v. Khazir Mohammad Tunda). 9. In Uday Shankar Awasthi's case (supra) the Hon'ble Supreme Court has observed that the provisions of Section 202 of the Criminal Procedure Code is mandatory in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. The provisions of Section 202 of the Code of Criminal Procedure Code has been made mandatory only in order to protect the innocent persons from being harassed by unscrupulous persons,. In the case under reference opposite party no. 2 being aware of the sale of the land in question and about the deaths of rightful owners had executed such agreement in order to compel the petitioner company to part with Rs. 45 lacs. As such the learned Magistrate found sufficient materials against the opposite party No. 2 and other accused persons and thereafter issued summons without invoking Section 202 of the Code of Criminal Procedure. 10. In the Chatterjee Petrochem's case (supra) arbitration clause contained in the principal agreement is valid and the appellant is entitled to invoke the arbitration clause. In the case under reference it may safely be said such agreement was executed by opposite party no. 2 in order use the same as an instrument for deceiving the petitioner company and the agreement in question is not at all valid in law. Therefore, no question arises for giving effect to any clause of such agreement. 11. In Sameer Bharati's case (supra) the Apex Court observed that prior to issuance of summons in a case under Section 138 of the Negotiable Instruments Act it is incumbent upon the learned Magistrate to observe about prima facie case. The aforesaid case is not at all applicable in the facts and circumstances of this case. 11. In Sameer Bharati's case (supra) the Apex Court observed that prior to issuance of summons in a case under Section 138 of the Negotiable Instruments Act it is incumbent upon the learned Magistrate to observe about prima facie case. The aforesaid case is not at all applicable in the facts and circumstances of this case. It is absolutely clear from the facts and circumstances of this case that learned Magistrate duly applied his mind with regard to the facts divulged in the petition of complaint and thereafter issued process. However, the trial Court is at liberty to take appropriate steps in respect of the deaths of Ram Chandra Chattopadhyay and Smt. Bimala Chattopadhyay. The remaining decisions referred by the opposite party no. 2 with regard to the powers conferred under Section 482 of the Code of Criminal Procedure upon the High Court. The said decisions are not being discussed since those are settled principle of law. 12. Having regard to the facts and circumstances of this case I am of the considered view that the learned revisional Court could not appreciate the actual facts and circumstances of this case and thereby misguided itself by relying on the arbitral clause of such agreement. The order passed by the learned Additional District & Sessions Judge, Bench II, Bichar Bhawan, Calcutta in Criminal Revision No. 162 of 2014 dated 16th June 2016 is set aside and the order of learned Metropolitan Magistrate, 19th Court, Calcutta in CNS No. 41317 dated 26th September 2014 is restored. The CRR No. 2612 of 2016 stands allowed. CRAN 3216 of 2017 is also disposed of. 13. Let a copy of this order be forwarded to the learned trial Court, as expeditiously as possible for appropriate steps. 14. Parties will be at liberty to get photostate copies of this judgment upon completion of all necessary formalities.