- (1.) THE judgment of the Court was as follows: This is an application under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure assailing the order dated July 10, 2008 passed by learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No. 148 of 2007 whereby and whereunder the Revisional Application was allowed setting aside the order dated 16.11.2007 in G. R. No. 2411 of 2000 passed by learned M.M.8th Court, Calcutta. THE learned Judge allowed the petition under Section 239 Cr.P.C. and discharged the accused persons.
(2.) THE case of the petitioner/defacto complainant, in short, is that he was appointed one of the trustees to the estate of Smt. Sibraji Gupta by virtue of a registered deed of trust dated 21.7.1989 executed by Smt. Sibraji Gupta being the erstwhile and the sole owner of the premises No. 4, Sarkar Lane, Kolkata comprised in holding No. 145, Calcutta. By the said deed of trust Sibraji Gupta appointed Sidharth Gupta and Biswabandhu Gupta as Trustees of the said Trust estate. THE Trust Deed is irrevocable. THE accused Nos. 2 and 3 by practising fraud and suppressing the material facts and making false declaration committed forgery in order to cheat the complainant and managed to create a forged deed of gift through Smt. Sibraji Gupta by exercising undue influence and coercion upon her. THEreafter, the accused Nos. 2 and 3 set up the accused No.1 as a fictitious licensee in respect of one room of the said premises No.4 Sarkar Lane, Kolkata and filed a proceeding under Section 41 of Presidency Small Causes Act, in the Court of Presidency Small Causes Court, Calcutta being Case No. 406 of 1999: In the said proceeding the accused Nos. 2 and 3 made false statement deliberately in respect of the deed of gift. THEy got an order of eviction in respect of one room of the said premises. THE accused No.1 was never in possession of any room or any portion of 4, Sarkar Lane nor was the licensee thereof. With the intention of wrongful gain the accused No.1 joined the accused Nos. 2 and 3 and accordingly accused No.1 granted consent before the Small Cause Court, Calcutta for getting the order of eviction. By fraudulently obtaining the order of eviction, the accused Nos. 2 and 3 all on a sudden arrived with police at 4, Sarkar Lane on May, 20 of 2000 and asked the complainant and his brother to leave the suit premises. THE complainant raised protest against such activities. THE accused Nos. 2 and 3 forcibly took wrongful possession of the same by dispossessing the complainant by adopting the criminal force, made trespass and misappropriated goods worth Rs.4,00,000/-. Under the circumstances, the complainant filed the case before the learned Court below. The case was sent to the P.S. under Section 156(3) Cr.P.C. After completion of investigation charge-sheet was submitted. The accused persons at the time of framing of charge filed a petition under Section 239 Cr.P.C. praying for discharge. The learned Magistrate upon hearing both sides rejected the petition under Section 239 Cr.P.C. holding that prosecution was able to establish the prima facie case and without trial it was not possible to come to a final decision as to whether the alleged offences were committed or not. Being aggrieved by the said order passed by the learned Magistrate the accused persons filed a revisional application before the learned Chief Judge, City Sessions Court, Calcutta.
(3.) THE learned Chief Judge after hearing both sides allowed the revisional application and set aside the order passed by the learned Magistrate and the accused persons were discharged. It has been held by the learned Judge that the parties are co-sharers and they are in possession of the property by an order of the Court and, as such, there could not be any case of extortion against the accused persons as alleged by the defacto-complainant. THE learned Judge held that there was no existence of the essential ingredients under Section 384 I.P.C. against the accused persons for framing charge. The learned Judge further held that as per the ingredients of Section 207 I.P.C. the prosecution was to prove that the property in question or interest therein had become or was likely to become liable to be taken as forfeiture for such fine, or taken in execution of such decree or order and the accused received such property or delivered such property or interest therein intending thereby to prevent such property from being taken. The learned Judge further held that on the basis of materials on CD. the prosecution could not prove that there was any such case of fraudulent claim of property. The learned Judge held that the charge was groundless and passed the order impugned.;