Calcutta High Court (Appellete Side)
Joydip Goswami @ Joydeep Goswami & Anr vs The State Of West Bengal & Anr on 8 January, 2025
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 43 of 2022
Joydip Goswami @ Joydeep Goswami & Anr.
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Omar Faruk Gazi,
Mr. Abhishek Tikadar.
For the State : Mr. Debasish Roy, ld. PP
Mr. Arijit Ganguly,
Ms. Sreemoyi Roy.
For the Opposite Party No. 2 : None.
Hearing concluded on : 08.01.2025
Judgment on : 08.01.2025
Shampa Dutt (Paul), J.:
1. The present revisional application has been preferred praying for
quashing of Airport Police Station Case No. 96/2019 under Sections
420/406/506/120B/34 of the Indian Penal Code being G.R. Case
No. 3386/2019 pending before the learned Additional Chief Judicial
Magistrate, Barrackpore.
2
2. In spite of due service there is no representation on behalf of the
opposite party no. 2/de facto complainant.
3. Learned Public Prosecutor is present and has placed the case
diary along with a memo of evidence.
4. It appears from the written complaint that:-
“…….on 03.07.19 at 15.05 hrs received one Court
complaint which was duly forwarded by the Ld. ACJM
Barrackpore, North 24 Parganas vide MP Case No. 416/19
wherein the complainant namely Soumen Mukherjee S/O
Lt. Bimal Kumar Mukherjee of Vill & PO- Narayanpur, PS-
Jagatdal, North 24 Parganas had made allegations
against 1) Joydip Goswami S/O Lt. Arun Goswami, 2)
Manashi Goswami W/O Lt. Arun Goswami, both of
405/39, Uttar Nilachal, PO-Birati, PS- Airport, Kol-134 to
the effect that the complainant being an Advocate was
engaged to conduct various cases for and on behalf of the
accused persons at Barrackpore Court, Barasat Court and
Baruipur Court. It was agreed by and between the
complainant and the accused persons that the accused
persons would pay a total sum of Rs.7,00,000/- to the
complainant being their Advocate for conducting the cases
as Advocate‟s fees as per agreement. The complainant is
still conducting the cases for the accused persons at the
said Courts but the accused persons only paid
Rs.1,50,000/- to the complainant out of Rs.7,00,000/-.
Several time complainant requested the accused persons
to pay him the rest fees amount of Rs.5,50,000/- but they
flatly told that they will not pay the rest amount and if he
will further demand the money, the accused persons will
teach a good lesson to the complainant and also
threatened him with dire consequences. Subsequently on
the basis of the Court complaint, the instant case has been
started and as per endorsement ASI Arindam Ghosh of
Airport PS took up its investigation………”
5. The Supreme Court in:-
a) Sarabjit Kaur vs State of Punjab and Anr., (2023) 5 SCC
360, decided on March 1, 2023, held:-
3
“13. A breach of contract does not give rise to
criminal prosecution for cheating unless fraudulent
or dishonest intention is shown right at the
beginning of the transaction. Merely on the
allegation of failure to keep up promise will not be
enough to initiate criminal proceedings. From the
facts available on record, it is evident that
Respondent 2 had improved his case ever since the
first complaint was filed in which there were no
allegations against the appellant rather it was only
against the property dealers which was in
subsequent complaints that the name of the
appellant was mentioned. On the first complaint, the
only request was for return of the amount paid by
Respondent 2. When the offence was made out on
the basis of the first complaint, the second complaint
was filed with improved version making allegations
against the appellant as well which was not there in
the earlier complaint. The entire idea seems to be to
convert a civil dispute into criminal and put pressure
on the appellant for return of the amount allegedly
paid. The criminal courts are not meant to be used
for settling scores or pressurise parties to settle civil
disputes. Wherever ingredients of criminal offences
are made out, criminal courts have to take
cognizance. The complaint in question on the basis
of which FIR was registered was filed nearly three
years after the last date fixed for registration of the
sale deed. Allowing the proceedings to continue
would be an abuse of process of the court.”
b) M N G Bharateesh Reddy v. Ramesh Ranganathan & Anr.,
2022 SCC OnLine SC 1061, decided on August 18, 2022,
held:-
“13. The ingredients of the offence of cheating are
spelt out in Section 415 of the IPC. Section 415 is
extracted below:
“415. Cheating – Whoever, by deceiving any
person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any
person, or to consent 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
4which 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”.
Explanation – A dishonest concealment of facts is a
deception within the meaning of this section.”
14. The ingredients of the offence under Section 415
emerge from a textual reading. Firstly, to constitute
cheating, a person must deceive another. Secondly,
by doing so the former must induce the person so
deceived to (i) deliver any property to any person; or
(ii) to consent that any person shall retain any
property; or (iii) intentionally induce 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
such an act or omission must cause or be likely to
cause damage or harm to that person in body, mind,
reputation or property.
15. Section 420 deals with cheating and dishonestly
inducing delivery of property. It reads as follows:
“420. Cheating and dishonestly inducing
delivery of property – Whoever cheats and thereby
dishonestly induces the person deceived to deliver
any property to any person, or to make, alter or
destroy the whole or any part of a valuable security,
or anything which is signed or sealed, and which is
capable of being capable of converting into a
valuable security, shall be punished with
imprisonment of either description for a term which
may extend to seven years, and shall also be liable
to fine.”
16. In Hridaya Ranjan Prasad Verma v. State of
Bihar, a two-judge bench of this Court interpreted
sections 415 and 420 of IPC to hold that fraudulent
or dishonest intention is a precondition to constitute
the offence of cheating. The relevant extract from the
judgment reads thus:
“14. On a reading of the section it is manifest that in
the definition there are set forth two separate
classes of acts which the person deceived may be
induced to do. In the first place he may be induced
fraudulently or dishonestly to deliver any property to
any person. The second class of acts set forth in the
section is the doing or omitting to do anything which
the person deceived would not do or omit to do if he
were not so deceived. In the first class of cases the
inducing must be fraudulent or dishonest. In the
5second class of acts, the inducing must be
intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in
mind that the distinction between mere breach of
contract and the offence of cheating is a fine one. It
depends upon the intention of the accused at the
time of inducement which may be judged by his
subsequent conduct but for this subsequent conduct
is not the sole test. Mere breach of contract
cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
transaction, that is the time when the offence
is said to have been committed. Therefore it is
the intention which is the gist of the offence.
To hold a person guilty of cheating it is
necessary to show that he had fraudulent or
dishonest intention at the time of making the
promise. From his mere failure to keep up
promise subsequently such a culpable intention
right at the beginning, that is, when he made
the promise cannot be presumed.”
(emphasis supplied)
17. In Dalip Kaur v. Jagnar Singh a two-judge bench
of this Court held that a dispute arising out of a
breach of contract would not amount to an offence of
cheating under section 415 and 420. The relevant
extract is as follows:
“9. The ingredients of Section 420 of the Penal Code
are:
“(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person
to deliver any property; or
(iii) To consent that any person shall retain any
property and finally intentionally inducing that
person to do or omit to do anything which he would
not do or omit.”
10. The High Court, therefore, should have posed a
question as to whether any act of inducement on the
part of the appellant has been raised by the second
respondent and whether the appellant had an
intention to cheat him from the very inception. If the
dispute between the parties was essentially a
civil dispute resulting from a breach of
contract on the part of the appellants by non-
refunding the amount of advance the same
6
would not constitute an offence of cheating.
Similar is the legal position in respect of an
offence of criminal breach of trust having
regard to its definition contained in Section
405 of the Penal Code. (See Ajay Mitra v. State of
M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])”
(emphasis supplied)
18. Applying the above principles, the ingredients of
Sections 415 and 420 are not made out in the
present case. The grievance of the first respondent
arises from the termination of his services at the
hospital. The allegations indicate that there was an
improper billing in respect of the surgical services
which were rendered by the complainant at the
hospital. At the most, the allegations allude to a
breach of terms of the Consultancy Agreement by
the Appellant, which is essentially in the nature of a
civil dispute.
19. The allegations in the complaint are conspicuous
by the absence of any reference to the practice of
any deception or dishonest intention on behalf of the
Appellant. Likewise, there is no allegation that the
complainant was as a consequence induced to
deliver any property or to consent that any person
shall retain any property or that he was deceived to
do or omit to do anything which he would have not
done or omitted to do if he was not so deceived. The
conspicuous aspect of the complaint which needs to
be emphasized is that the ingredients of the offence
of cheating are absent in the averments as they
stand.
20. Section 405 of the IPC deals with criminal
breach of trust and reads as follows:
“405. Criminal breach of trust – Whoever, being
in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates
or converts to his own use that property, or
dishonestly uses or disposes of that property in any
direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the
discharge of such trust, or willfully suffers any other
person so to do, commits “criminal breach of trust”.”
21. The offence of criminal breach of trust contains
two ingredients : (i) entrusting any person with
property, or with any dominion over property; and (ii)
the person entrusted dishonestly misappropriates or
7
converts to his own use that property to the
detriment of the person who entrusted it.
22. In Anwar Chand Sab Nanadikar v. State of
Karnataka a two-judge bench restated the essential
ingredients of the offence of criminal breach of trust
in the following words:
“7. The basic requirement to bring home the
accusations under Section 405 are the requirements
to prove conjointly (1) entrustment, and (2) whether
the accused was actuated by the dishonest intention
or not misappropriated it or converted it to his own
use to the detriment of the persons who entrusted it.
As the question of intention is not a matter of direct
proof, certain broad tests are envisaged which
would generally afford useful guidance in deciding
whether in a particular case the accused had mens
rea for the crime.”
23. In Vijay Kumar Ghai v. State of West
Bengal another two-judge bench held that
entrustment of property is pivotal to constitute an
offence under section 405 of the IPC. The relevant
extract reads as follows:
“28. “Entrustment” of property under Section 405 of
the Penal Code, 1860 is pivotal to constitute an
offence under this. The words used are, “in any
manner entrusted with property”. So, it extends to
entrustments of all kinds whether to clerks,
servants, business partners or other persons,
provided they are holding a position of “trust”. A
person who dishonestly misappropriates property
entrusted to them contrary to the terms of an
obligation imposed is liable for a criminal breach of
trust and is punished under Section 406 of the Penal
Code.”
24. None of the ingredients of the offence of
criminal breach of trust have been demonstrated on
the allegations in the complaint as they stand. The
first respondent alleges that the Appellant caused
breach of trust by issuing grossly irregular bills,
which adversely affected his professional fees.
However, an alleged breach of the contractual terms
does not ipso facto constitute the offence of the
criminal breach of trust without there being a clear
case of entrustment. No element of entrustment has
been prima facie established based on the facts and
circumstances of the present matter. Therefore, the
ingredients of the offence of criminal breach of trust
8
are ex facie not made out on the basis of the
complaint as it stands.”
c) Vijay Kumar Ghai & Ors. vs. State of West Bengal &
Ors., (2022) 7 SCC 124, decided on March 22, 2022,
held:-
“24. This Court in G. Sagar Suri v. State of U.P. [G.
Sagar Suri v. State of U.P., (2000) 2 SCC 636 : 2000
SCC (Cri) 513] observed that it is the duty and
obligation of the criminal court to exercise a great
deal of caution in issuing the process, particularly
when matters are essentially of civil nature.
25. This Court has time and again cautioned about
converting purely civil disputes into criminal cases.
This Court in Indian Oil Corpn. [Indian Oil
Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006)
3 SCC (Cri) 188] noticed the prevalent impression
that civil law remedies are time consuming and do
not adequately protect the interests of
lenders/creditors. The Court further observed that :
(Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC
India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri)
188] , SCC p. 749, para 13)
“13. … Any effort to settle civil disputes and claims,
which do not involve any criminal offence, by
applying pressure through criminal prosecution
should be deprecated and discouraged.”
27. Section 405IPC defines “criminal breach of trust”
which reads as under:
“405. Criminal breach of trust.–Whoever, being
in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates
or converts to his own use that property, or
dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode
in which such trust is to be discharged, or of any
legal contract, express or implied, which he has
made touching the discharge of such trust, or
wilfully suffers any other person so to do, commits
“criminal breach of trust”.”
The essential ingredients of the offence of criminal
breach of trust are:
(1) The accused must be entrusted with the property
or with dominion over it,
9(2) The person so entrusted must use that property,
or;
(3) The accused must dishonestly use or dispose of
that property or wilfully suffer any other person to
do so in violation,
(a) of any direction of law prescribing the mode in
which such trust is to be discharged, or;
(b) of any legal contract made touching the discharge
of such trust.
28. “Entrustment” of property under Section 405 of
the Penal Code, 1860 is pivotal to constitute an
offence under this. The words used are, “in any
manner entrusted with property”. So, it extends to
entrustments of all kinds whether to clerks,
servants, business partners or other persons,
provided they are holding a position of “trust”. A
person who dishonestly misappropriates property
entrusted to them contrary to the terms of an
obligation imposed is liable for a criminal breach of
trust and is punished under Section 406 of the Penal
Code.
29. The definition in the section does not restrict the
property to movables or immovables alone. This
Court in R.K. Dalmia v. Delhi Admn. [R.K.
Dalmia v. Delhi Admn., (1963) 1 SCR 253 : AIR 1962
SC 1821] held that the word “property” is used in
the Code in a much wider sense than the expression
“movable property”. There is no good reason to
restrict the meaning of the word “property” to
movable property only when it is used without any
qualification in Section 405.
30. In Sudhir Shantilal Mehta v. CBI [Sudhir
Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3
SCC (Cri) 646] it was observed that the act of
criminal breach of trust would, inter alia mean using
or disposing of the property by a person who is
entrusted with or has otherwise dominion thereover.
Such an act must not only be done dishonestly but
also in violation of any direction of law or any
contract express or implied relating to carrying out
the trust.
31. Section 415 IPC defines “cheating” which reads
as under:
“415. Cheating.–Whoever, by deceiving any
person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any
person, or to consent that any person shall retain
any property, or intentionally induces the person so
10deceived 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”.”
The essential ingredients of the offence of cheating
are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that
person–
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any
property; or
(b) intentionally inducing that person to do or omit to
do anything which he would not do or omit if he
were no 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.
32. A fraudulent or dishonest inducement is an
essential ingredient of the offence. A person who
dishonestly induces another person to deliver any
property is liable for the offence of cheating.
33. Section 420IPC defines “cheating and
dishonestly inducing delivery of property” which
reads as under:
“420. Cheating and dishonestly inducing
delivery of property.–Whoever cheats and
thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter
or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and
which is capable of being converted into a valuable
security, shall be punished with imprisonment of
either description for a term which may extend to
seven years, and shall also be liable to fine.”
34. Section 420IPC is a serious form of cheating that
includes inducement (to lead or move someone to
happen) in terms of delivery of property as well as
valuable securities. This section is also applicable to
matters where the destruction of the property is
caused by the way of cheating or inducement.
Punishment for cheating is provided under this
section which may extend to 7 years and also
makes the person liable to fine.
35. To establish the offence of cheating in inducing
the delivery of property, the following ingredients
need to be proved:
11
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the
representation he made was false.
(iii) The accused made false representation with
dishonest intention in order to deceive the person to
whom it was made.
(iv) The act where the accused induced the person to
deliver the property or to perform or to abstain from
any act which the person would have not done or
had otherwise committed.
36. As observed and held by this Court in R.K.
Vijayasarathy v. Sudha Seetharam [R.K.
Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC
739 : (2020) 2 SCC (Cri) 454] , the ingredients to
constitute an offence under Section 420 are as
follows:
(i) a person must commit the offence of cheating
under Section 415; and
(ii) the person cheated must be dishonestly induced
to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or
anything signed or sealed and capable of being
converted into valuable security. Thus, cheating is
an essential ingredient for an act to constitute an
offence under Section 420IPC.
37. The following observation made by this Court
in Uma Shankar Gopalika v. State of Bihar [Uma
Shankar Gopalika v. State of Bihar, (2005) 10 SCC
336 : (2006) 2 SCC (Cri) 49] with almost similar facts
and circumstances may be relevant to note at this
stage : (SCC pp. 338-39, paras 6-7)
“6. Now the question to be examined by us is as to
whether on the facts disclosed in the petition of the
complaint any criminal offence whatsoever is made
out much less offences under Sections 420/120-
BIPC. The only allegation in the complaint petition
against the accused persons is that they assured
the complainant that when they receive the
insurance claim amounting to Rs 4,20,000, they
would pay a sum of Rs 2,60,000 to the complainant
out of that but the same has never been paid. … It
was pointed out on behalf of the complainant that
the accused fraudulently persuaded the complainant
to agree so that the accused persons may take steps
for moving the consumer forum in relation to the
claim of Rs 4,20,000. It is well settled that every
breach of contract would not give rise to an offence
12
of cheating and only in those cases breach of
contract would amount to cheating where there was
any deception played at the very inception. If the
intention to cheat has developed later on, the same
cannot amount to cheating. In the present case, it
has nowhere been stated that at the very inception
that there was intention on behalf of the accused
persons to cheat which is a condition precedent for
an offence under Section 420IPC.
7. In our view petition of complaint does not disclose
any criminal offence at all much less any offence
either under Section 420 or Section 120-BIPC and
the present case is a case of purely civil dispute
between the parties for which remedy lies before a
civil court by filing a properly constituted suit. In our
opinion, in view of these facts allowing the police
investigation to continue would amount to an abuse
of the process of court and to prevent the same it
was just and expedient for the High Court to quash
the same by exercising the powers under Section
482CrPC which it has erroneously refused.”
38. There can be no doubt that a mere breach of
contract is not in itself a criminal offence and gives
rise to the civil liability of damages. However, as
held by this Court in Hridaya Ranjan Prasad
Verma v. State of Bihar [Hridaya Ranjan Prasad
Verma v. State of Bihar, (2000) 4 SCC 168 : 2000
SCC (Cri) 786] , the distinction between mere breach
of contract and cheating, which is criminal offence, is
a fine one. While breach of contract cannot give rise
to criminal prosecution for cheating, fraudulent or
dishonest intention is the basis of the offence of
cheating. In the case at hand, complaint filed by
Respondent 2 does not disclose dishonest or
fraudulent intention of the appellants.
39. In Vesa Holdings (P) Ltd. v. State of Kerala [Vesa
Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC
293 : (2015) 3 SCC (Cri) 498] , this Court made the
following observation : (SCC pp. 297-98, para 13)
“13. It is true that a given set of facts may make out
a civil wrong as also a criminal offence and only
because a civil remedy may be available to the
complainant that itself cannot be ground to quash a
criminal proceeding. The real test is whether the
allegations in the complaint disclose the criminal
offence of cheating or not. In the present case, there
is nothing to show that at the very inception there
was any intention on behalf of the accused persons
13
to cheat which is a condition precedent for an
offence under Section 420IPC. In our view, the
complaint does not disclose any criminal offence at
all. Criminal proceedings should not be encouraged
when it is found to be mala fide or otherwise an
abuse of the process of the court. The superior courts
while exercising this power should also strive to
serve the ends of justice. In our opinion, in view of
these facts allowing the police investigation to
continue would amount to an abuse of the process of
the court and the High Court committed
[Maniprasad v. State of Kerala, 2011 SCC OnLine
Ker 4251] an error in refusing to exercise the power
under Section 482CrPC to quash the proceedings.”
40. Having gone through the complaint/FIR and
even the charge-sheet, it cannot be said that the
averments in the FIR and the allegations in the
complaint against the appellant constitute an offence
under Sections 405 and 420IPC, 1860. Even in a
case where allegations are made in regard to failure
on the part of the accused to keep his promise, in the
absence of a culpable intention at the time of making
promise being absent, no offence under Section
420IPC can be said to have been made out. In the
instant case, there is no material to indicate that the
appellants had any mala fide intention against the
respondent which is clearly deductible from the MoU
dated 20-8-2009 arrived at between the parties.”
6. In Lalit Chaturvedi vs State of Uttar Pradesh & Anr., in
Criminal Appeal No. …….. of 2023 (arising out of SLP (Crl.)
No. 13485 of 2023), decided on February 06, 2024, the
Supreme Court held:-
“……………….. 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
14factum that the chargesheet had been filed on
12.12.2019. This ground and reason is also not valid.
In “Mohammed Ibrahim and Others v. State of
Bihar and Another” (2009) 8 SCC 751, 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).”
Similar elucidation by this Court in “V.Y. Jose and
Another v. State of Gujarat and Another” (2009) 3
SCC 78, 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
15
exercise its jurisdiction under Section 482 of the Cr.P.C.
Section 482 of the 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” (2003)
5 SCC 257, “Indian Oil Corporation v. NEPC India
Ltd.“(2006) 6 SCC 736, “Vir Prakash Sharma v. Anil
Kumar Agarwal” (2007) 7 SCC 373 and “All Cargo
Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain” (2007)
14 SCC 776 …………………….”
7. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and
Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). ………
of 2022 (Arising out of SLP (Crl.) No(s). 39 of 2022), the
Supreme Court held:-
“15. This Court has an occasion to consider the ambit
and scope of the power of the High Court under Section
482 CrPC for quashing of criminal proceedings in Vineet
Kumar and Others vs. State of Uttar Pradesh and
Another, (2017) 13 SCC 369 decided on 31st March,
2017. It may be useful to refer to paras 22, 23 and 41 of
the above judgment where the following was stated:
“22. Before we enter into the facts of the present case it
is necessary to consider the ambit and scope of
jurisdiction under Section 482 CrPC vested in the High
Court. Section 482 CrPC saves the inherent power of the
High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent
abuse of the process of any court or otherwise to secure
the ends of justice.
23. This Court time and again has examined the scope of
jurisdiction of the High Court under Section 482 CrPC and
laid down several principles which govern the exercise of
jurisdiction of the High Court under Section 482 CrPC. A
three-Judge Bench of this Court in State of Karnataka v.
16
L. Muniswamy (1977) 2 SCC 699 held that the High Court
is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends
of justice require that the proceeding ought to be quashed.
In para 7 of the judgment, the following has been stated :
„7. … In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would
be an abuse of the process of the court or that the ends of
justice require that the proceeding ought to be quashed.
The saving of the High Court’s inherent powers, both in
civil and criminal matters, is designed to achieve a
salutary public purpose which is that a court proceeding
ought not to be permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the veiled
object behind a lame prosecution, the very nature of the
material on which the structure of the prosecution rests
and the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice
are higher than the ends of mere law though justice has
got to be administered according to laws made by the
legislature. The compelling necessity for making these
observations is that without a proper realisation of the
object and purpose of the provision which seeks to save
the inherent powers of the High Court to do justice,
between the State and its subjects, it would be
impossible to appreciate the width and contours of that
salient jurisdiction.‟
41. Inherent power given to the High Court under Section
482 CrPC is with the purpose and object of advancement
of justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court
has to thwart the attempt at the very threshold. The Court
cannot permit a prosecution to go on if the case falls in
one of the categories as illustratively enumerated by this
Court in State of Haryana v. Bhajan Lal 1992 Supp (1)
SCC 335. Judicial process is a solemn proceeding which
cannot be allowed to be converted into an instrument of
operation or harassment. When there are materials to
indicate that a criminal proceeding is manifestly attended
with mala fides and proceeding is maliciously instituted
with an ulterior motive, the High Court will not hesitate in
exercise of its jurisdiction under Section 482 CrPC to
quash the proceeding under Category 7 as enumerated in
State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335
which is to the following effect :
17
„102. (7) Where a criminal proceeding is manifestly
attended with mala fides and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge.‟ Above Category 7 is
clearly attracted in the facts of the present case.
Although, the High Court has noted the judgment of State
of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 but did
not advert to the relevant facts of the present case,
materials on which final report was submitted by the IO.
We, thus, are fully satisfied that the present is a fit case
where the High Court ought to have exercised its
jurisdiction under Section 482 CrPC and quashed the
criminal proceedings.”
16. The exposition of law on the subject relating to the
exercise of the extra-ordinary power under Article 226 of
the Constitution or the inherent power under Section 482
CrPC are well settled and to the possible extent, this
Court has defined sufficiently channelized guidelines, to
give an exhaustive list of myriad kinds of cases wherein
such power should be exercised. This Court has held in
para 102 in State of Haryana and Others v. Bhajan
Lal and Others, 1992 Supp. (1) 335 as under :
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
18by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there
is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge.”
17. The principles culled out by this Court have
consistently been followed in the recent judgment of this
Court in Neeharika Infrastructure Pvt. Ltd. v. State
of Maharashtra and Others, 2021 SCC Online SC
315.”
8. The present case falls under category 1, 3 and 7 of Para 102 of
Bhajan Lal (Supra).
9. It appears that the dispute in the present case is regarding the
professional fees allegedly due to the complainant, but the materials
19
on record do not prima facie show that the said amount is due to
the complainant herein.
10. Supplementary affidavit has been filed along with the documents to
show that the complainant/opposite party herein has also initiated
civil proceedings being Title Suit No. 315 of 2021 before the
learned Civil Judge (Junior Division), 3rd Court, Barasat.
11. CRR 43 of 2022 is thus allowed.
12. The proceeding being Airport Police Station Case No. 96/2019
under Sections 420/406/506/120B/34 of the Indian Penal Code
being G.R. Case No. 3386/2019 pending before the learned
Additional Chief Judicial Magistrate, Barrackpore, is hereby
quashed in respect of the petitioners namely Joydip Goswami @
Joydeep Goswami and Manashi Goswami.
13. All connected Applications, if any, stand disposed of.
14. Interim order, if any, stands vacated.
15. Copy of this judgment be sent to the learned Trial Court for
necessary compliance.
16. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)