Calcutta High Court (Appellete Side)
Sailen Biswas & Another vs The State Of West Bengal & Anr on 23 December, 2024
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3161 of 2023
With
CRAN 2 of 2024
Sailen Biswas & another
-Vs-
The State of West Bengal & Anr.
For the Petitioners : Mr. Md. N. Rahber,
Mr. Muhammad Jawwad.
For the Opposite Party No. 2 : Mr. D. Banerjee,
Mr. Anik Dey.
For the State : None.
Hearing concluded on : 06.12.2024
Judgment on : 23.12.2024
Shampa Dutt (Paul), J.:
1. The present revisional application has been preferred praying for
Quashing of the proceedings being complaint case no.118 of 2023,
alleging the commission of offences punishable under Sections
323/379/420/406/506/34 of the Indian Penal Code, 1860, pending
before the court of the learned Judicial Magistrate, 2nd Court,
Barrackpore, North 24 Parganas.
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2. The petition of complaint filed before the trial Court on the basis of
which the proceeding has been initiated shows that the complainant
has registered the present case against the petitioners on the allegation
that:
―……….The father of the complainant namely Krishna
Kumar Biswas purchased a plot of land measuring about
02 Cottah or 330 Satak or 1440 square feet from Ramjatan
Dosad and Ram Ratan Dosad on 10.10.1980 and after
purchasing constructed a two storied building and has
been living in peaceful possession permanently till today.
The accused no.1 namely Sailen Biswas is a very
dangerous and quarrelsome and greedy person known in
the locality and his son, the accused no.2 namely Romio
Biswas adopted the same nature of his father. On
10.10.1980, the accused no.1 namely Shri Sailen Biswas
purchased a plot of land measuring about 06 Chittak 35
sq. feet or 305 square feet of land adjacent to the plot of
the father of the petitioner by virtue of Sale Deed from
Ramjatan Dosad and Ram Ratan Dosad on 10.10.1980.
Since the purchase of the aforesaid land, the
accused no.1 namely Sailen Biswas neither visited his
place nor took any initiative to clean the area. Whereas the
petitioner along with his father has been maintaining the
area for long.
After purchase of the aforesaid land, the petitioner
came to know that there exists extra 01 (one) Cottah of
land and the petitioners have been enjoying the peaceful
vacant possession without any interruption over the said
property for last 43 (forty three years)………‖
3. It is further stated that in the month of March, 2020, the accused no.1
Shri Sailen Biswas along with his son, the accused no.2 namely Shri
Romio Biswas approached the father of the petitioner, that since there
is no boundary wall over their entire property, it is beneficial for both to
construct a boundary wall and as such the petitioner was agreeable to
the proposal of the above noted accused persons and they also verbally
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ensured in presence of their relatives that the petitioner will be
permitted to keep his four wheeler vehicle at the premises once the
boundary wall is completed. That the petitioner requested several times
to the above noted accused persons namely Sailen Biswas and Romio
Biswas to make a written agreement, but the accused persons always
deferred the same on one pretext after another.
It is further stated that the complainant and his father invested
Rs. 3,00,000/- whereas the petitioners herein/accused persons
invested only Rs. 1,00,000 lakh for the boundary wall. It is stated that
after the completion of the boundary wall, the petitioners have
encroached 110 sq. feet over the property of the father of the
complainant and as such the dispute arose.
4. On perusal of the petition of complaint it appears that entire allegation
as made in the petition of complaint shows that the dispute between
the parties is civil in nature but the complainant has initiated this
criminal case on the said ground.
5. The Hon’ble Supreme Court in Lalit Chaturvedi vs. State of U.P,
Criminal Appeal No. of 2023 (Arising out of SLP (Crl.) No. 13485 of
2023):
―5. This Court, in a number of judgments, has pointed
out the clear distinction between a civil wrong in the
form of breach of contract, non-payment of money or
disregard to and violation of the contractual terms; and
a criminal offence under Sections 420 and 406 of the
IPC. Repeated judgments of this Court, however, are
somehow overlooked, and are not being applied and
enforced. We will be referring to these judgments. The
impugned judgment dismisses the application filed by
the appellants under Section 482 of the Cr.P.C. on the
ground of delay/laches and also the factum that the
4chargesheet had been filed on 12.12.2019. This
ground and reason is also not valid.
6. In ―Mohammed Ibrahim v. State of Bihar‖, this Court
had referred to Section 420 of the IPC, to observe that
in order to constitute an offence under the said section,
the following ingredients are to be satisfied:–
―18. Let us now examine whether the ingredients of an
offence of cheating are made out. The essential
ingredients of the offence of ―cheating‖ are as follows:
(i) deception of a person either by making a false or
misleading representation or by dishonest concealment
or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person
to either deliver any property or to consent to the
retention thereof by any person or to intentionally
induce that person so deceived to do or omit to do
anything which he would not do or omit if he were not
so deceived; and
(iii) such act or omission causing or is likely to cause
damage or harm to that person in body, mind,
reputation or property.
19. To constitute an offence under section 420, there
should not only be cheating, but as a consequence of
such cheating, the accused should have dishonestly
induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a
valuable security (or anything signed or sealed and
which is capable of being converted into a valuable
security).‖
7. Similar elucidation by this Court in ―V.Y.
Jose v. State of Gujarat‖, explicitly states that a
contractual dispute or breach of contract per se should
not lead to initiation of a criminal proceeding. The
ingredient of ‗cheating’, as defined under Section 415
of the IPC, is existence of a fraudulent or dishonest
intention of making initial promise or representation
thereof, from the very beginning of the formation of
contract. Further, in the absence of the averments
made in the complaint petition wherefrom the
ingredients of the offence can be found out, the High
Court should not hesitate to exercise its jurisdiction
under Section 482 of the Cr.P.C. Section 482 of the
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Cr.P.C. saves the inherent power of the High Court, as
it serves a salutary purpose viz. a person should not
undergo harassment of litigation for a number of years,
when no criminal offence is made out. It is one thing to
say that a case has been made out for trial and
criminal proceedings should not be quashed, but
another thing to say that a person must undergo a
criminal trial despite the fact that no offence has been
made out in the complaint. This Court in V.Y.
Jose (supra) placed reliance on several earlier
decisions in ―Hira Lal Hari Lal Bhagwati v. CBI‖,
―Indian Oil Corporation v. NEPC India Ltd.‖, ―Vir
Prakash Sharma v. Anil Kumar Agarwal‖ and ―All
Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain‖.
10. The charge sheet also refers to Section 406 of the
IPC, but without pointing out how the ingredients of
said section are satisfied. No details and particulars
are mentioned. There are decisions which hold that the
same act or transaction cannot result in an offence of
cheating and criminal breach of trust
simultaneously. For the offence of cheating, dishonest
intention must exist at the inception of the transaction,
whereas, in case of criminal breach of trust there must
exist a relationship between the parties whereby one
party entrusts another with the property as per law,
albeit dishonest intention comes later. In this case
entrustment is missing, in fact it is not even alleged. It
is a case of sale of goods. The chargesheet does refer
to Section 506 of the IPC relying upon the averments in
the complaint. However, no details and particulars are
given, when and on which date and place the threats
were given. Without the said details and particulars, it
is apparent to us, that these allegations of threats etc.
have been made only with an intent to activate police
machinery for recovery of money.
11. It is for the respondent no. 2/complainant – Sanjay
Garg to file a civil suit. Initiation of the criminal process
for oblique purposes, is bad in law and amounts to
abuse of process of law.‖
6. The said case is under Sections 323/379/420/406/506/34 of IPC.
None of the ingredients is prima facie present for the offences alleged
against the accused persons/petitioners herein.
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7. CRR 3161 of 2023 is allowed.
8. The proceedings being complaint case no.118 of 2023, alleging the
commission of offences punishable under Sections 323 /379 /420 /406
/506 /34 of the Indian Penal Code, 1860, presently pending before the
court of the learned Judicial Magistrate, 2nd Court, Barrackpore, North
24 Parganas, is hereby quashed in respect of the petitioners namely
Sailen Biswas and Romio Biswas.
9. All connected applications, if any, stands disposed of.
10. Interim order, if any, stands vacated.
11. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
12. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)