GOURI SHANKAR RAJGARHIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE present petitioner who had been arraigned as an accused in connection with Hare Street Police Station Case No. 132, dated March 4,2004 under Section 420 of the Indian Penal Code, corresponding to G. R. Case No. 540/04, now pending before the learned Metropolitan Magistrate, 5th Court, calcutta, after filing of charge-sheet for the self-same offence i. e. an offence under Section 420 of the Indian Penal Code, moved an application in the Court below praying for their discharge from the said case. The learned Magistrate however rejected the prayer for discharge. Against the said order the petitioner moved a criminal revision before the City Sessions Court at Calcutta, but the said criminal revision was dismissed and order passed by the Trial Court was affirmed. Hence this criminal revision.

(2.) MR. Joy Sengupta, the learned Counsel, appearing on behalf of the petitioner submitted that from the allegations made in the First Information report as well as the materials collected by the police during the investigation, the offence for which charge-sheet has been submitted cannot be said to have been made out. Mr. Sengupta draws the attention of this Court to the averment made in the First Information Report as well as the materials collected by the police during investigation and submitted that admittedly out of Rs. 25 lakhs which was given to the present petitioner as an Inter Corporate Deposit, a sum of Rs. 10 lakhs has been returned as well as the interest were also paid. According to him this is a circumstance which clearly shows that there cannot be any offence of cheating. He further submitted that on the allegations contained in the First Information Report coupled with the materials collected by the police during investigation at best a case of civil dispute has been tends to make out. He submitted there is no allegation of initial deception and no case of cheating has been made out except a case of failure to keep promise. Mr. Sengupta in support of its case relied on the following decisions of the hon'ble Apex Court, viz. in the case of S. W. Palanitkarand Ors. v. State of Bihar and Anr. , reported in 2002 SCC (Cr) 129 ; Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. , reported in 2000 SCC (Cr) 786 : 2000 C Cr LR (SC)293 ; Medchl Chemicals fit Pharma (P) Ltd. v. Biological E. Ltd. and Ors. , reported in 2000 SCC (Cr) 615 :2000 C Cr LR (SC) 488 and Harshad Himmatlal Rupani v. The State of West Bengal and Anr. , reported in (2008)1 C Cr LR (Cal) 523.

(3.) ON the other hand, Mr. Tirthankar Ghosh, the learned Advocate, appearing on behalf of the defacto-complainant submitted that although out of rs. 25 lakhs which was given to the company of the petitioner as Inter Corporate deposit, a sum of Rs. 10 lakhs have been returned and a few monthly interests were paid but the petitioner has not refunded balance amount of the said deposit within the stipulated period of 180 days. According to him the said Rs. 10 lakhs and a few interests were paid only to create confidence in the mind of the complainant so as to get the schedule of payment deferred. He further submitted by making such payment the petitioner deceived the petitioner and thereby induced him to extend the date of the payments. He further submitted finally the petitioner executed a memorandum of understanding wherein under he agreed to hand over a flat belonging to his company if not the balance amount of Rs. 15 lakhs is paid within the stipulated period but even after expiry of the stipulated period neither the balance amount has been paid nor the possession of the flat has been handed over to the complainant. He submitted that police very rightly submitted charge-sheet in this case and the learned court belows committed no mistake in rejecting the petitioner's prayer for discharge. Mr. Ghosh in support of his contention relied on a decision relating to the case of Rajesh Bajaj v. State NCT of Delhi and Ors. , reported in (1999)3 scc 259 : 1999 C Cr LR (SC) 234 and submitted that mere part payment or payment of interest will not take out the case from the ambit of an offence under Section 420 of the Indian Penal Code.