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2018 DIGILAW 678 (CAL)

Minati Dutta v. State of West Bengal

2018-09-13

MD.MUMTAZ KHAN

body2018
JUDGMENT : 1. This revision has been preferred by the petitioner/accused person praying for quashing of the proceedings of GR Case No. 2751 of 2011 arising out of Baguihati Police Station Case No. 325 of 2011 dated June 17, 2011 under Section 420/468/471 of the Indian Penal Code pending before the court of learned Judicial Magistrate, 1st Court, Barasat, North 24 Parganas as also the order dated February 15, 2018 passed by the learned Judicial Magistrate, 1st Court, Barasat thereby framing charge against the petitioner for commission of offence punishable under Section 420 of the Indian Penal Code. 2. On June 14, 2011, O.P. No.2 filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Barasat stating therein that the petitioner was inducted as tenant under her at Ghosh Para, Krishnapur, P.S., Baguihati, Kolkata on a monthly rental basis where she is running her industry under the name and style Maccoil Chemicals Pvt. Ltd. Petitioner promised that she will pay the rent without making any default but since June, 2008 petitioner has defaulted payment of rent. When petitioner was requested to pay the dues she falsely claimed that she had paid all the dues from the month of June, 2008 to March, 2010 and that she (O.P. No. 2) has received the same by putting her signature on the exercise book but in fact petitioner has not paid any rent nor she (O.P. No.2) has put her signature on the alleged exercise book and that the Petitioner has forged her signature and by practicing fraud cheated her. 3. On the basis of that complaint which was forwarded to the P.S. under section 156(3) Cr.P.C. for treating the same as FIR, a Baguihati P.S. Case No. 325 dated June 17, 2011 was started against the petitioner. Thereafter, on completion of investigation a charge-sheet was submitted against the petitioner for the offence under Section 420/468/471 IPC. 4. On February 15, 2018, learned Magistrate after hearing framed a charge under Section 420 IPC against the petitioner by the impugned order. 5. It was submitted by Mr. Thereafter, on completion of investigation a charge-sheet was submitted against the petitioner for the offence under Section 420/468/471 IPC. 4. On February 15, 2018, learned Magistrate after hearing framed a charge under Section 420 IPC against the petitioner by the impugned order. 5. It was submitted by Mr. Sekhar Basu, learned senior advocate appearing for the petitioner that the main allegation against the petitioner was with regard to forgery for the purpose of cheating but the learned Magistrate did not found any such material with regard to the alleged forgery and as such did not frame any charge for the offence punishable under Section 468/471 IPC. According to Mr. Basu when the main allegation of forgery for the purpose of cheating was not found by the learned Magistrate there was no scope to frame charge under Section 420 IPC and framing of charge under Section 420 IPC is an abuse of process law and the instant proceeding is liable to be quashed. 6. O.P. No.2 did not appear inspite of service of notice. 7. Ms. Faria Hossain, learned advocate appearing for the state by producing photo copy of the Case Diary fairly submitted that save and except the oral testimony of two charge sheet witnesses no such document/exercise book with regard to alleged forged signatures of the complainant was seized during investigation. 8. I have considered the submissions of the learned Advocate appearing for the respective parties and gone through the documents on record as also the Case Diary. It is evident from the documents on record and the copy of the Case Diary that primarily the dispute between the petitioner and O.P.2 was with regard to the issue of payment of rent for a certain period. Though the petition of complaint is silent with regard to the date of commencement of tenancy of the petitioner in that premises but from the documents on record namely rent receipts etc shows since prior to the disputed period petitioner was staying there as tenant. The dispute over issue of payment of rent is for a limited period namely since June, 2008. Admittedly, no such-document/exercise book bearing forged signature of the petitioner was seized during investigation. The dispute over issue of payment of rent is for a limited period namely since June, 2008. Admittedly, no such-document/exercise book bearing forged signature of the petitioner was seized during investigation. In the absence of any such material collected during investigation and only on the basis of averments made in the FIR, there was no scope to frame any charge under Section 468/471 IPC and in fact no charge was framed for the same. Evidently, the alleged forgery was for the purpose of cheating, so in the absence of any such ingredients with regard to the forgery there was no scope to frame any charge under Section 420 IPC. Learned Magistrate after going through the materials collected during investigation did not believe the story of forgery but went on to frame charge under Section 420 IPC without assigning any cogent reason. There is also error apparent in the impugned order. It is completely silent with regard to the charge under Section 468/471 IPC for which charge sheet was submitted. At least learned Magistrate should have specified the reason why no charge was framed under Section 468/471 IPC. I do find merit in the submission of the learned Advocate for the petitioner that when the main allegation of forgery for the purpose of cheating was not found by the learned Magistrate there was no scope to frame charge under Section 420 IPC and framing of charge under Section 420 IPC is an abuse of process law. 9. The dispute between the parties is primarily over payment of rent for the period in question which appears to be of civil in nature and the remedy lies before the Civil Court. O.P. No. 2(complainant) can approach the Civil Court to redress her grievance. Therefore, considering the entire facts and circumstances of the case and submissions of the learned advocates appearing for the respective parties, I am of the view that the impugned order passed by the learned court below framing charge under Section 420 IPC is not sustainable in law and the criminal proceeding in the present form and the allegations made therein and in the absence of any material collected during investigation the same is not maintainable and liable to be quashed. 10. 10. Accordingly, the proceeding of G.R. Case No. 2751 of 2011 pending before the court of learned Judicial Magistrate, 1st Court, Barasat, North 24 Parganas as also the order impugned passed by the learned Judicial Magistrate, 1st Court, Barasat are quashed and set aside. 11. In the result the instant Criminal revision succeeds. 12. The instant revision (C.R.R. No. 619 of 2018) thus disposed of. 13. Urgent photostat certified copy, if applied for, to be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.