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2019 DIGILAW 382 (CAL)

SHASHI MIMANI v. STATE OF WEST BENGAL

2019-03-19

SUBHASIS DASGUPTA

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JUDGMENT : SUBHASIS DASGUPTA, J. 1. This revisional application is for quashing of a proceeding in connection with complaint case 538 of 2015 under Sections 406/420/120B of the Indian Penal Code pending before the learned Additional Chief Judicial Magistrate, Asansol, Paschim Bardhaman. 2. Learned advocate for the revisionist submitted that in the instant prosecution, an endeavour was undertaken to convert a civil litigation into a criminal case for having committed breach of the promise with respect to the terms of the agreement already entered into between the parties. Thus according to revisionist, the criminal intention, being the crux of the offence complained of, not being existed at the time, when the agreement was entered into between the parties the continuation of the proceeding under Sections 406/420 of the IPC will be an abuse of process of the Court for want of required intention so as to establish the culpability, as against the revisionist. 3. Learned advocate, Mr. Panda representing the State submitted repelling the contention of the revisionist that the required criminal intention to cheat the complainant existed at the very beginning of the transaction when the revisionist proceeded to obtain bank loan submitting the property documents of complainant/opposite party No.2 to bank after entering into an agreement with terms that in the event if the property documents of the complainant were not returned within six month from the date of sanction of the loan, the revisionist would pay a sum of Rs.20,000/- every month to the complainant/opposite party No.2 towards compensation. Thus according to State, revisionist even after getting back the property documents from the bank did not return the same to complainant/opposite party No.2 together with the amount of compensation, supposed to be given to complainant, which was sufficient to demonstrate the required intention of revisionist to cheat the complainant/opposite party no.2 4. To address the issue now raises by the revisionist in support of the prayer for quashing some salient facts may be adverted to. 5. Complainant, Md. Abdus Salam had a close acquaintance with revisionist and his wife as well. The revisionist approached complainant, Md. Abdus Salam to become a collateral security in connection with a cash credit facility to be obtained by revisionist from a bank concerned after entering into an agreement there for. 5. Complainant, Md. Abdus Salam had a close acquaintance with revisionist and his wife as well. The revisionist approached complainant, Md. Abdus Salam to become a collateral security in connection with a cash credit facility to be obtained by revisionist from a bank concerned after entering into an agreement there for. A plea was set up that the revisionist was not having the property documents readily available, and as a result of which, the bank, supposed to give lone to revisionist, showed its reluctantly. The complainant, Md. Abdus Salam, being persuaded by the request agreed to stand collateral security enabling the revisionist to obtain cash credit facility from bank depositing the title deeds of the property belonging to him keeping thereby, the property of the complainant mortgaged to bank. 6. An Agreement was entered into between the parties wherein it was promised that revisionist would return the title deeds taking it back from bank to the complainant within six month from the date of sanction of the loan and, if any, default is caused, in any event, a sum of Rs.20,000/- every month would be payable to complainant Md. Abdus Salam. 7. The criminal intention of revisionist subsequently came to be surfaced evident from his action, when revisionist proceeded to alienate the mortgaged property of the complainant to one builder. Having understood the purported action of the revisionist, a civil suit being Title Suit No. 209 of 2007 was filed by complainant Mr. Abdus Salam in the Court of learned Civil Judge (Jr. Divn.) 1st Court at Asansol. 8. Receiving the summons, the revisionist approached the complainant/opposite party no.2 with an assurance to give back the title deeds. The complainant/opposite party after being influenced by the assurance of the revisionist withdrew the title suit receiving two cheques from revisionist, which were ultimately dishonoured. Even after issuance of notice of demand under Negotiable Instrument Act, the amount covered in the dishonoured cheque could not be paid to complainant/opposite party. In this background the instant prosecution came to be surfaced. 9. Adverting to a document of bank, issued by Allahabad Bank, dated 19.11.09, addressed to revisionist, argument was focused at the instance of the revisionist that when revisionist had already deposited a sum of Rs.43.50 lakh to bank, and in consequence thereof the said bank returned the original title deed standing in the name of Md. 9. Adverting to a document of bank, issued by Allahabad Bank, dated 19.11.09, addressed to revisionist, argument was focused at the instance of the revisionist that when revisionist had already deposited a sum of Rs.43.50 lakh to bank, and in consequence thereof the said bank returned the original title deed standing in the name of Md. Abdus Salam, who stood as guarantor to the cash credit loan facility account transaction together with the document connected therewith, the instance continuance of instant prosecution would be an abuse of the process of the Court for want of required intention, supportive of a prosecution under Sections 406/420 IPC. 10. Relying upon a decision reported in (S.C) rendered in the case of Vinod Nastesan vs. State of Kerala and Ors., 2019 1 AICLR 657 learned advocate for the revisionist contended that mere failure to make payment in terms of the agreement would not be itself sufficient to construe a case under Section 406 read with Section 420 IPC. 11. In the case referred above, the complainant complained of offences under Sections 406/420 read with Section 34 IPC alleging failure in the matter of making payment due to payable under agreement to complainant. The accused involved therein approached the High Court seeking quashing under Section 482 of the Code of Criminal Procedure and alleging therein that the dispute involved was purely civil in nature and the averments together with the allegations made in the complaint did not disclose any cognizable offence under Sections 406 and 420 IPC. It was also contended therein that for breach of contract and damages a separate suit was instituted. 12. The High Court under this context quashed the criminal proceeding holding that the continuance of the criminal proceeding involved therein would be nothing, but an abuse of the process of law, and further that the averments contained in the complaint fell sort of ingredients to make out offence under Sections 406/420 IPC. The decision rendered by the High Court was affirmed by the Apex Court reenforing the settled proposition of law that for failure to make payment in terms of the agreement would not itself constitute offence under Section 420 IPC. 13. The case in hand is distinguishable from the facts, covered in the aforesaid decision of the Apex Court on the following grounds. 13. The case in hand is distinguishable from the facts, covered in the aforesaid decision of the Apex Court on the following grounds. (i) The original property documents of complainant/opposite party no.2 were kept deposited first figuring him as an collateral security in order to obtain cash credit facility from a bank. (ii) The agreement was thereafter entered into between the parties promising to return back the property documents belonging to the complaint/opposite party no.2 within a stipulated period of time, failing which the revisionist would pay compensation of Rs.20,000/- per month to complainant/opposite party no.2. (iii) The revisionist made attempt to transfer the mortgaged property. (iv) The complainant/opposite party filed a suit to check such transfer of the mortgaged property belonging to him and obtained an order of injunction. (v) The civil suit was ultimately withdrawn, when the revisionist assured to return title deeds to complainant/opposite furnishing two cheques, which were ultimately dishonoured. 14. Therefore, the agreement, terms of which are alleged to have been violated, does not necessarily to pertain to a loan transaction entered into between the parties. The agreement was, however, entered into for returning the title deeds of the complainant/opposite party no.2, who stood as guarantor furnishing all his title deeds in connection with a cash credit facility extended to revisionist by bank. There was nothing to establish that even after getting back the title deeds standing in the name of complainant/opposite party no.2 together with connected documents by revisionist from Allahabad Bank after a deposit of a sum of Rs.43.50 lakh, such valuable title documents were returned to complainant/opposite party no.2 receiving a receipt there for. 15. The intention of the revisionist being otherwise, favourable to the purpose of offence under Sections 406/420 IPC, the original property documents even after getting the same return from bank with the deposition of sum of Rs.43.50 lakh, could not be returned as such to complainant/opposite party no.2. The averments and the allegations made in the complaint disclosed commission of cognizable offence under Section 420 IPC at least, irrespective of breach of terms of the agreement necessarily entered into between the parties over the issue of getting back the title deeds, deposited with bank in connection with a cash credit facility extended to revisionist, not akin to a loan transaction simplicitor held between the parties themselves. 16. 16. The breach of the terms of the agreement not only resulted the complainant/opposite party no.2 to sustain loss with respect to some money payable to him, but also with respect to original title documents of complainant's property. 17. For the findings made above the revisional application is without any merits. However, liberty is given to revisionist to agitate the issue afresh at the time of framing charge, if any, on the basis of evidence to be adduced during before charge stage. 18. The Court makes it clear that if any point is raised at the time of framing charge, the same will be duly addressed to, by the learned Trial Court without being influenced by observation made in the body of this judgment. 19. This order as such will have no persuasive effect upon the Trial Court while addressing the issue in terms of the points, if any, raised accordingly. 20. The revisional application is thus dispose of. 21. The prayer for quashing as such is refused. 22. Urgent certified copy of this order if applied for, is made available to the parties upon compliance with requisite formalities.