- (1.) THESE two applications under Section 482 of the Code of Criminal Procedure have been taken out for quashing the proceedings being C.G.R. 265/2009 pending in the Court of learned Chief Judicial Magistrate, Alipore South 24 parganas arising out of Balygunge police station case no. 9 of 2009 dated 20.1.2009 under Section 420/120B of the IPC. Since in both the applications, quashing of a particular proceedings has been sought for on common causes, they are disposed of together by the following order.
(2.) ONE Rohit Shroff filed a petition of complaint in the Court of learned C.J.M., Alipore on 21.1.2009 and the same was referred to Balygunge police station under Section 156 (3) Cr.P.C. for investigation and submit report. On the basis of said F.I.R., the Balygunge police station case no. 9 of 2009 dated 20.1.2009 was started against the petitioners. Rohit Shroff, in his petition of complaint, contended that his family members were in urgent need of a specious office space in an around Salt Lake area. Being attracted by an advertisement in a newspaper of M/s Renault Developers Private Limited, he contacted the petitioners who were representing M/s Renault Developers Private Limited as its Director. They assured Mr. Shroff that they were in a position to fulfill his requirement of a specious office space as they had under taken the project already and that they would provide the office space to Mr. Shroff and his relations by August, 2008, positively, if not earlier. As insisted by the petitioners, Mr. Shroff booked 2176 Sqt. Office space no. 5 on the 5th floor against consideration money of Rs. 1,33,80,250/- besides one covered car parking space and open car parking space at premises no. 3A, Rammohan Mullick Gargen Lane, Kol- 700010. On 3.9.2007, Mr. Shroff and his relations were induced to pay Rs. 56,00,000/- for booking of the said space. On 7.11.2007, Mr. Shroff and his relations were induced by the petitioners to enter into an agreement with M/s Renault Developer Private Limited and to pay Rs. 32,00,000/- on 7.11.2007, Rs. 10,00,000/- on 4.1.2008, Rs. 12,88,888/- on 6.5.2008 and Rs. 20,00,000/- on 30.6.2008, totaling Rs. 1,30,80,000/-. In order to convince Mr. Shroof and his relations, the petitioners had taken them to the construction site and assured them that it would be completed within the time scheduled. But, in the utter surprise, Mr. Shroff and her relations found that till that date, the petitioners were not at all ready to provide them with the office space. The petitioners also started avoiding Mr. shroof and her relations willfully and deliberately. Being suspicious, Mr. Shroof and his relations had been to the construction site and found that only super built structure was erected. An enquiry revealed that the petitioners mortgaged/charged the said property and raised huge amount of money to the tune of Rs. 50,000000/- from the market and that fact was never disclosed to Mr. Shoorf and his relations. Mr. Shroof had written a letter to the petitioners on 6.11.2008 drawing their attention to the serious omission in the matter of not providing to the office space to them by August, 2008 as per the representation and undertaking of the petitioners against payment of money amounting to 1,30,80,000/-. Inspite of receiving the letter, the petitioners neither replied to the same nor made any contact with Mr. Shroof and his relations. Mr. Shroof, the de facto complainant had reasons to believe that the petitioners being actuated by an evil intention of gobbling up the huge amount of money of Mr. Shroof and his relations made false fraudulent misrepresentation of providing them with an office space of their choice which they never intended to provide right from the very inception. They misappropriated the money paid by them dishonestly by entering into a criminal conspiracy amongst themselves by deceitful means. Thereby, they cheated Mr. Shroof and his relations. The petitioners being accused in that particular case have come up with these applications praying for quashing of the proceedings, mainly, on the following grounds : i) that the dispute is of civil in nature and no criminality is attributed to the petitioners; ii) that no offence of cheating has been made out prima facie against the petitioners in the F.I.R. iii) that there was an agreement for sale and parties to that entered into the said agreement at their own will. There was no inducement on the part of the petitioners to allure the de facto complainant and others to book space in the proposed construction; iv) that money was paid in terms of the contract and the petitioners have not misappropriated the same for their wrongful gain; v) that there was disclosure of mortgage at the time of agreement and the property has not been sold to any third party as yet; vi) that parties also taken recourse of Consumer disputes redressal commission; vii) that since no case of cheating is made out in the F.I.R. prima facie, simple breach of agreement does not constitute offence of cheating especially when no criminality is attributed to the petitioners. Both the sides filed supplementary affidavits and affidavits-in-reply annexing bunch of documents. It is pertinent to mention here that the criminal prosecution was initiated in the year 2009 and the investigation into the case is still pending due to order of stay passed by this Court. It is also pertinent to mention here that an application under Section 9 of the Arbitration and Conciliation Act filed by the opposite party no. 2 and others in the Court of learned District Judge, Alipore which was registered as Misc. Case no. 616 of 2009. One Sri Raghu Nath Ghose was appointed as an Arbitrator also. The matters are pending.
(3.) MR. Sandipan Ganguly, learned Counsel on the behalf of the petitioners contended that in order to attract the provisions of Section 420 IPC, fraudulent and dishonest intention at the time of making promise or representation is a sine quo non. Pure and simple breach of contract of sale does not constitute offence of cheating. In support of his contention, MR. Ganguly referred to the decision of Apex Court in Dilip Kumar and others Vs, Jagnar Singh and Anr. Reported in AIR 2009 SC 3191. MR. Ganguly referred to the another decision of the Apex Court in Murarilal Gupta Vs. Gopi Singh reported in (2006) 2 SCC (Cri) 430 and contended that in absence of any averments in the complaint so as to infer fraudulent or dishonest inducement having been made by the petitioner, pursuant to which the respondent parted with his money, it can not be said that the petitioner had cheated the respondent. MR. Ganguly has referred to a decision of this Court in Kingsukh Neyogi Vs. State of W.B. & Anr. Reported in (2008) 1 C. Cr.L.R. (Cal) 789 and contended that mens rea is a necessary ingredient without which a breach of trust may not result in criminal breach of trust. In order to constitute an offence punishable under Section 420 of IPC, the dishonest intention must be shown to exist at the time of making of the inducement. Mr. Debapriya Gupta, learned Counsel appearing on behalf of the opposite party no. 2 contended that there is no rule of law that existence of a civil dispute invalidates the criminal prosecution. The F.I.R. disclosed each and every details of facts indicating clearly how the O.P. no. 2 and his relations were induced and deceived by the petitioners. It has been specifically mentioned in the F.I.R. that the petitioners created an atmosphere which attracted the opposite parties to book the office space against huge amount of money and enter into the agreement. The F.I.R. also disclosed clearly that the petitioners had mortgaged the entire property and collected huge some of money which was not disclosed by them to the opposite parties at the time the agreement was entered into by them. There was, Mr. Gupta contended, deliberate and willful misrepresentation from the side of the petitioners. They knew very well at that time that the entire construction was kept under mortgage as the petitioners had taken loan from different banks. Therefore, he contended that this Court should not quash the proceedings. He contended further that the merely because the matter was taken to consumer redressal forum or an arbitration proceeding, criminal prosecution against the petitioners is not prohibited when the acts of the petitioners constitute a criminal offence which is made out even prima facie. In support of his contention Mr. Gupta referred to the decision of Honble Apex Court in X.W. Palanit car and Ors. Vs. State of Bihar and Ors. Reported in 2002 (1) SCC 241. Mr. Gupta contended further that when the issues involved are of considerable importance to the parties in particular, and world of trade and commerce in general, High Court should not exercise his inherent power under Section 482 of the Code of Criminal Procedure and quash the proceedings. Reference has also been taken from the decision of Apex Court in Iridium Indian Telecom Limited Vs. Motorwal incorporate and Ors. Reported in AIR 2011 SC 20 in this regard. Mr. Ghosh, learned Counsel appearing for the opposite party state of West Bengal contended that quashing of this prosecution at this stage would be against the principle of law. At best, the petitioners may try their luck by invoking Section 239 of Cr.P.C.;