SAMARENDRA KUMAR BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this case the petitioner has challenged the order of the trial Court dated August 3, 2015, thereby framing charges against the petitioner in G.R.Case No. 46/14, under Sec. 420 and 406 of the IPC. The petitioner has also challenged the entire criminal proceeding initiated against him pursuant to registering of the FIR being Bidhannagore (North) Police Station Case No. 11/2014 dtd. 9/1/2014, under Sec. 420/406/120B of the IPC. The petitioner has prayed for setting aside of the order of the trial Court framing charges in the said proceeding as well as quashing of the entire criminal proceeding against him as above.

(2.) Mr Chatterjee, Ld. Advocate appearing for the petitioner, has taken the Court through the complaint and the other documents the petitioner has relied on in this case. The complaint was filed on December 21, 2013, in the Court of Additional Chief Judicial Magistrate at Bidhannagore, under Sec. 156 (3) of the Cr.P.C. The opposite party No. 2 in this case, was the complainant. Pursuant to the directions of the Court, police registered the FIR, as mentioned above. The crux of the allegations made against the present petitioner, has been, that the petitioner has deceived and cheated the complainant/opposite party No. 2 by falsely representing that an amount of Rs.30,00,000.00 has been returned to the complainant in terms of a memorandum of understanding, previously entered into between the parties, for settlement of petitioner's immovable property, where as it was not actually done so. Allegedly, the petitioner has with malafide intention and ulterior motive, represented falsely in his letter dated August 21, 2013, to have enclosed an account payee cheque of Rs.30,00,000.00, as a refund of the entire 10% advance, taken earlier by the petitioner from the opposite party No. 2, of the total consideration amount of ? 3 crores. It is further alleged that actually there was no account payee cheque enclosed with the petitioner's letter dated August 21, 2013. The complainant has alleged that the petitioner neither had any intention to return the money taken by him in advance nor any bona-fide mindset to perform the terms of the memorandum entered into between them for settling the immovable property of the petitioner. Allegedly, the petitioner having no such intention to comply with or execute the terms of the memorandum, has deceived the opposite party No. 2 from the very inception of their inter se transaction and dishonestly induced him to part with his substantial amount of money. Mr Chatterjee however indicates that the allegations as above against his client is only baseless and unfounded insofar as the entire amount of Rs.30,00,000.00has already been deposited in the office of the Additional Chief Judicial Magistrate, Bidhannagore 24 Parganas (North), by the petitioner for the purpose of keeping the same, in an interest bearing fixed deposit account. He says that the direction of the Court would facilitate withdrawal of the same by the complainant. Therefore, according to Mr Chatterjee, there cannot be held to be existent any prima facie material against the petitioner, so far as the alleged offence of cheating or criminal breach of trust is concerned. By referring to the fact that a suit of specific performance has already been filed by the complainant, Mr. Chatterjee has taken this Court to the order of the Civil Judge Junior Division passed in the said case (being T.S. No.131/2013), to submit that the complainant has failed to secure any order of injunction, there, as the Court found existence of no prima facie case. He has relied on various precedents to substantiate petitioner's ground that in absence of any strong prima facie material as to any cognizable offence against him and the allegations against him, having not made up any case at all, to proceed against the petitioner, would amount only to the gross abuse of the process of Court which is, however, to be prevented by this Court in exercise of its inherent power under Sec. 482 of the Cr.P.C. On this score, according to Mr Chatterjee the trial Court's order, framing charges against the petitioner is suffering from gross impropriety and illegality too. Thus he has prayed for setting aside of the impugned order dated August 3, 2015 and also quashing of the entire criminal proceeding against his client.

(3.) The following judgments have been relied on by Mr Chatterjee, on behalf of the petitioner: