BINODE BEHARI DEY Vs. STATE

JUDGEMENT

(1.) The petitioner, Binode Behari Dey has filed this revisional application for quashing the charge framed against him by the learned Metropolitan Magistrate, 16th Court, Calcutta in G.R. Case No. 5022 of 1981 under sections 406/420/120B of the Indian Penal Code. It is the contention of the petitioner that there are no materials justifying the framing of charge against him. The gist of the allegations in the F.I.R. lodged by the complainant, Smt. Surabala Dutta is that she fell in great financial hardship after her husband's death and at that time one Banbehari Dey, the accused named in the F.I.R., who is one of her relations dishonestly induced her to part with her gold ornaments so that the same might be used in business and in return he promised to give her Rs. 300/- per month. It is also the allegation that some ornaments of the complainant were kept by Banbehari Day in locker of a Bank opened in the joint names of the complainant and Banbehari, but barring some initial payments of paltry amounts Banbehari did not give any money to the complainant and also did not return the ornaments and rather denied everything. After completion of investigation police submitted charge-sheet against the F.I.R. named accused Banbehari Dey and also against one Ramkrishna Dey and the present petitioner Benode Behari Dey. The learned Magistrate by his order dated 1st August, 1991 held that there are materials on record to frame charge against all the three accused persons under sections 406/420/120B of the Indian Penal Code and accordingly by his order dated 26th September, 1991 he framed charge against all the three accused under the said sections. Of the three accused the petitioner Binode Behari has moved this Court for quashing the charge framed against him on the ground that there are no materials to justify the framing of charge so far he is concerned. After going through the materials which are required to be considered at the stage of considering the question of framing of charge, as placed before me, I find that framing of charge against the present petitioner was not justified.

(2.) The petitioner, it may be mentioned, is a brother of the F.I.R. named accused Banbehari Dey. Neither in the statements recorded under section 167 Cr.P.C. nor in the F.I.R. there is any allegation that the present petitioner induced. or did anything for inducing the complainant to part with her ornaments in favour of Banbehari. The only involvement of the present petitioner in the matter, as it appears from the materials, is that after Banbehari denied everything as alleged when the brother of the complainant and another relation approached Banbehari and asked him to return the ornaments or to tell where the ornaments were lying so that they could get the same released, the petitioner was also present there and he told them that he had already learnt everything from Banbehari and he would look into the matter so that the ornaments could be returned. The petitioner also later gave a list of ornaments which were lying pledged in a jewellery shop at Bowbazar. It also appears that some statement of the accused Banbehari was tape-recorded where Banbehari stated that for getting the pledged ornaments released he would require 40/45 thousand rupees and if that money is paid to him, be and his brother would then go and get the ornaments released, but he would not take with him anybody else. Now practically these are the only materials which refer to the present petitioner in connection with this matter. These materials only indicate that when Banbehari denied everything and the complainant and some of her relations approached Banbehari, at that stage the petitioner who is a brother of Banbehari appeared in the scene. Even then what his role? He, it seems, involved himself at that stage for the purpose of looking into the matter so that the matter might be settled and also later furnished to the complainant a list of ornaments lying pledged in a jewellery shop. There is indeed nothing unnatural or foul in the conduct of the petitioner at that stage by offering himself to lend his services for settling the matter when it came to be known that there were certain allegations and incidents relating to the ornaments of the complainant which involved his brother Banbehari.

(3.) The materials which concern the present petitioner are evidently inadequate for framing of charge against the petitioner under sections 406/420 I.P.C. and I must say these materials are also inadequate for framing a charge against him under section 120B, I.P.C. regarding conspiracy Criminal conspiracy has been defined in section 120A, I.P.C. By that definition when two or more persons agree to do or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy, provided of course no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. In the present case the materials concerning the petitioner are plainly inadequate to attract the definition of criminal conspiracy as contained in section 120A, and to justify the framing of charge under section 120B, I.P.C. against the petitioner. The materials only show that the petitioner appeared in the scene when some relations of the complainant approached Banbehari for realisation of the ornaments given to said Banbehari by the complainant on being induced by him to do so. The petitioner being a brother of Banbehari seems to have offered his services at that stage to get the matter settled and there is nothing unusual in such conduct of the petitioner, he being a brother of Banbehari. It seems that he took information and located where and what items of ornaments were pledged and furnished a list of the same to the complainant. That does not indicate that he entered into any prior conspiracy with his brother Banbehari for inducing the complainant to part with the ornaments in favour of Banbehari or for misappropriating the same.