AVIK GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By filing the instant application under Sec. 482 of the Code of Criminal Procedure the petitioners being the accused persons of G.R Case No.1130 of 2013 under Sec. 420 of the Indian Penal Code pending before the learned Judicial Magistrate, 4th Court at Howrah arising out of Shibpur Police Station Case No.84 of 2015 dtd. 18/2/2015, have prayed for quashing of the above mentioned criminal case on the ground that continuation of the criminal proceeding against the petitioner would be a glaring instance of abuse of the process of the court and they should be immediately discharged to secure ends of justice.

(2.) The opposite party No.2 as defacto complainant had entered into an agreement for development dtd. 19/8/2011 with one Nemai Chand Ghosh and on the basis of such development agreement he developed a residential property being Premises No.73A, Atindra Mukherjee Lane within the police station Shibpur. As per the development agreement the opposite party No.2 had already delivered allocated area of 780 sq. ft to the said Nemai Chand Ghosh. The defacto complainant also paid a sum of Rs.9.00 lakhs to the said Nemai Chand Ghosh but unfortunately he died intestate on 28/11/2013 leaving behind his widow namely Munmun Ghosh, one son and one daughter who are the petitioners of the instant revision. It is alleged by the defacto complainant that during his life time, the said Nemai Chand Ghosh executed one registered and one notarial power of attorney along with the aforesaid agreement for development, on the same date of execution in favour of the defacto complainant for smooth progress in the work of the development. Though, on the death of Nemai Chand Ghosh both the power of attorneys ceased to have its effect, but the development agreement remains in force and applicable to the legal heirs and representatives of deceased Nemai Chand Ghosh. It is the case of the defacto complainant that the opposite party No.2 allegedly approached the petitioners to execute a fresh power of attorney in his name so that he can discharge his duty towards the intending purchasers. On such request the legal heirs of the said Nemai Chand Ghosh claimed a sum of Rs.1.00 lakh from the opposite party No.2. That on 28/2/2013 the opposite party No.2 paid a sum of Rs.1.00 lakh to the petitioners. However, the petitioners have failed and neglected to pay the promised sum of Rs.2000.00 per sq. ft. for the excess area, possession of which they delivered to Nemai Chand Ghosh by the opposite party No.2. Again on 29/12/2013 the petitioners No.1 and 3 left their flat disclosing that they are going to visit their relative's house but all of a sudden petitioner No.3 executed a power of attorney in favour of her mother Munmun Ghosh and fled away to United State of America. The petitioner No.1 also went away to Bangalore. The opposite party No.2 came to know about their departure only on 17/1/2014. It is also alleged by the opposite party No.2 that Mummun Ghosh petitioner No.2 herein lodged a complaint before the District Consumer Redressal Forum, Howrah which was registered as Consumer Case No.444 of 2014 by practicing fraud and cheating upon the opposite party No.2. The petitioner No.2 also obstructed the masons and labourers of the opposite party No.2 from bringing the building materials from premises No.73A, Atindra Mukherjee Lane. She also demanded rent from other apartment owners who purchased flat in the said premises from the opposite party No.2.

(3.) On the basis of the said complaint, police registered Shibpur Police Station Case No.84 of 2015 dated 18ty February, 2015 and finally submitted charge-sheet against the petitioners under Sec. 420 of the IPC before the learned Chief Judicial Magistrate at Howrah. The learned Chief Judicial Magistrate, Howrah upon receipt of the charge-sheet took cognizance of offence under Sec. 420 of the IPC against the petitioners and transferred the case to the 4th Court of the learned Judicial Magistrate, Howrah for trial and disposal.