RITA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been filed by petitioner Smt. Rita Das challenging an order dated 27.12.2013 passed by learned Metropolitan Magistrate, 8th Court, Calcutta in G.R. Case No. 1308 of 2009 arising out of Girish Park Police Station Case No. 95 dated 25.07.2009 under Sections 420/406/467/468/471/120B of the Indian Penal Code. Said order dated 27.12.2013 shall be referred to as impugned order hereinafter. Petitioner has filed her revisional application under Section 397/401/482 of the Code of Criminal Procedure. Petitioner has prayed for setting aside the impugned order and for a direction for further investigation in the case. Brief facts, as alleged in the revisional application are that the petitioner, being owner of 54, Anath Nath Dey Lane, Kolkata 700037 entered into a development agreement with Gourab Das, proprietor of M/s. Loknath Construction for developing the property of the petitioner. In terms of agreement twelve flats were constructed. Eight flats were sold out by petitioner and said Gourab Das and petitioner got her proportionate share. For the rest four flats she received her share from Gourab Das and executed a power of attorney in his favour. Since then the petitioner had no idea about the acts of said developer Gourab Das. Under such circumstances Senior Branch Manager, Bank of Baroda lodged a complaint against the petitioner and Gourab Das and one Bablu Dey in the Court of Additional Chief Metropolitan Magistrate, Calcutta under Section 156 (3), Code of Criminal Procedure, 1973.

(2.) The case made out in the complaint that the three accused persons approached the Bank for housing loan placing an agreement dated 15.11.2004 for sale of a flat to Bablu Dey by petitioner and Gourab Das at 54, Anath Nath Dey Lane, Kolkata 700037. They had shown money receipts showing payment of Rs.2,00,000/- by Bablu Dey to developer Gourab Das. Relying upon their representation the bank authority disbursed housing loan of Rs.4,50.000/- to the developer Gourab Das under instruction of purchaser Bablu Dey. Accused persons gave undertaking that they would deposit the original sale deed with the bank as mortgage of the flat. Such undertaking was not complied with on repeated calls and requests. Accused Bablu Dey made payment of some EMIs and stopped payment since April, 2007 to the bank. On search the bank authority discovered that Bablu Dey does not reside in any such flat and also there is no existence of such flat in the premises. Bank authority informed police authorities but when no action was taken by police then lodged the complaint under Section 156 (3) of the Code of Criminal Procedure which was forwarded by learned Additional Chief Metropolitan Magistrate, Calcutta to O.C. Girish Park Police Station for investigation. After investigation charge-sheet has been submitted by police before the learned Additional Chief Metropolitan Magistrate, Calcutta. According to the petitioner said charge-sheet was submitted mechanically and whimsically without holding investigation and without examining the petitioner during the purported investigation. Her specific allegation is that she never signed on the purported agreement for sale and her signature was forged. She made a prayer before the learned Court below for a direction for further investigation under Section 173 (8) of the Code of Criminal Procedure but her prayer has been rejected. Being aggrieved by and dissatisfied with that order this revisional application has been filed by petitioner.

(3.) At the time of hearing this case learned Advocate for the petitioner has submitted that in the Court below charge-sheet has been submitted alleging offences under Sections 420/120B of the Indian Penal Code against three accused persons including the present petitioner as accused no. 1 but in fact there was not sufficient materials for submitting charge-sheet against her. He further argued that there is no material to show that since inception the accused persons had intention to deceive the Bank of Baroda and had there been such intention the purchaser Bablu Dey would not make payment of some instalments (EMI) to the bank. His further arguments is that as per the decision of this High Court in the case of Krishna Kumar Bangur Vs. The State of West Bengal and Anr., 2008 1 CalCriLR 508 and a decision of the Hon'ble Apex Court in the case of Vir Prakash Sharma Vs. Anil Kumar Agarwal and Anr., 2008 1 CalCriLR 28 , the whole proceeding pending in the Court below is liable to be quashed. He has further argued that although the petitioner brought to the notice of the learned Magistrate in the Court below that her signature in the purported agreement for sale is a forged signature but the learned Court below has not ordered for reinvestigation causing miscarriage of justice. On the other hand, learned Advocate for the State has drawn my attention to various pages in the copy of case docket (C.D.) of investigating Police Officer and has advanced his arguments that the accused persons approached before the bank for housing loan for purchase of one flat by accused Bablu Dey from land owner petitioner and developer Gourab Das but on search bank authority has discovered that there is no existence of such flat at the alleged premises. According to him, the loan of Rs.4,50,000/- was disbursed to Bablu Dey by the bank on the basis of representation of land owner and developer and relying upon their agreement for sale. As such, it is obvious that prima facie ingredients to constitute an offence under Section 420 of the Indian Penal Code are well founded. He has submitted that the ratio of the cited decisions does not fortify the submissions of learned Advocate for the petitioner according to the facts and circumstances of this case. He has further argued that the petitioner is a party to the agreement for sale and all along she is involved in the transactions of sale of flats in the premises in question. As such, she cannot avoid her liability.