DIPAK SAHA RAY - (1.) THE present case arises out of an application under Section 482 of the Code of Criminal Procedure 1973 for quashing the criminal proceeding of B.G.T. Case No. 2347 of 2006 arising out of Thakurpukur P.S. Case No. 226 of 2006 dated 12.8.2006 under Sections 420/323/504/506 of the Indian Penal Code which is pending before the learned 1st Judicial Magistrate, Alipore, South 24 Parganas.
(2.) THE relevant facts of the present case are, in a nutshell, as follows: O.P. No. 2 herein as defacto complainant filed a petition of complaint before the learned Chief Judicial Magistrate, Alipore, South 24 Parganas which was sent to the O.C., Thakurpukur P.S. for investigation after treating the same as FIR under Section 156(3) of the Code of Criminal Procedure. Accordingly, Thakurpukur P.S. case No. 226 of 2006 dated 12.8.2006 was started under Sections 420/323/504/506 of the Indian Penal Code. In the said petition of complaint the defacto complainant has alleged therein inter alia that as per the request of the accused person the defacto complainant entrusted him to construct his building after demolishing the existing structure. Accordingly, on 26.2.2003, the defacto complainant accepted the quotation submitted by the accused person. An agreement was also executed between them. In the said agreement, it was mentioned that the accused person would pay the total cost of Rs. 3,85,000/- part by part. It is also alleged that the accused person did not pay the bills of the defacto complainant for the last 8 months amounting to Rs. 1,35,000/-. It has been further alleged that inspite of several requests the accused refused to pay that amount. On the contrary, he and his sons started harassing him (the defacto complainant). Subsequently, on 22.2.2004, in the afternoon when the defacto complainant went to the house of the accused and demanded the outstanding amount etc., the accused and his sons and others abused him and assaulted him with fist and blows and also threatened to kill him. The defacto complainant has further contended in his petition of complaint that the petitioner/defacto complainant sent demand notice to the accused on 27.4.2004; but the accused refused to receive the said notice. It is alleged that the accused person and his sons and others committed offences under Sections 420/323/504/506 of the Indian Penal Code. It is the case of the petitioner that the defacto complainant/O.P. No. 2 herein filed a case with an ulterior motive to harass him. It is alleged that the dispute between the parties is purely civil in nature and civil remedy is available. It has also been alleged that the petition of complaint does not disclose necessary ingredient of offences under Section 420 IPC. It is further alleged that the ingredient of offences under Sections 323/504/506 IPC are also found absent in the contents of FIR.
(3.) THE learned counsel for the petitioner has submitted that the defacto complainant/O.P. No. 2 herein in his petition of complaint has never stated that the accused person dishonestly induced the defacto complainant to execute the said agreement and that no allegation whatsoever has been made in the said petition of complaint that the accused person had an intention to cheat the defacto complainant from the very inception; on the other hand, from the petition of complaint, it is evident that the accused made payment part by part and he did not pay Rs. 1,35,000/- out of Rs. 3,85000/-. It is further submitted that the petition of complaint was filed after the lapse of more than 2 years and as per the provision of Section 468 of the Code of Criminal Procedure, initiation of case under Section 323/504/506 IPC are barred by limitation. The learned counsel for the opposite parties that is State and O.P. No. 2 have submitted that during investigation a prima facie case was established and thereafter charges have also been framed against the accused person after hearing both the parties. So, at this stage the proceedings should not be quashed.;