- (1.) This criminal revision is preferred by the petitioner for quashing the proceedings being G.R. Case No. 959 of 2010 arising out of Barasat Police Station Case No. 509 of 2010 dated 10th March, 2010 under Sections 420/406/506/120B of the Indian Penal Code pending before the Court of learned Chief Judicial Magistrate, Barasat, North 24 Parganas.
(2.) The back ground of starting the instant criminal proceeding by the opposite party no. 2 is as follows:- The opposite party no.2 is an N.R.I and U.S.A National who visits India every year for about six months. The opposite party no. 2 decided to devote his retired life as social worker and chose the State of West Bengal for his working place and found two registered Non-Government Organisations viz. Kamakhya Balak Ashram and the Kamakhya Shikhayaniketan for the purpose of carrying out the social work. One Prafulla Kumar Bose since deceased was the President of the above two Non-Government Organisations during the financial years 2002- 2003 to 2005 to 2006. The present petitioner was the General Secretary of the above two Non-Government Organisations during the said financial years 2002- 2003 to 2005-2006. The opposite party no.2 provided a sum of Rs. 31,24,147/- out of total amount of Rs. 33,90,000/- to the said Non-Government Organisations for the scheduled scheme of work with condition that true accounts of the funds with relevant documents and the actual development of the scheduled work will be shown to the opposite party no.2 on demand. The scheduled work included construction of room for girls, one time payment of boarding cost of girls, the cost for school bus, renovation work of kitchen, purchase of Almirah and books for the library. The fund was provided by the opposite party no.2 during a period of fifteen months from 21st December, 2003 to 2nd March, 2005, by issuing several account payee cheques for which the petitioner granted receipts showing the payment as donation under Section 80G of the Income Tax Act, 1961. The opposite party no.2 found the progress of development work of the scheduled scheme to some extent till 2nd March, 2005, but found no development work of the scheduled scheme during Mid-September, 2005. The petitioner did not submit the true accounts of the fund provided by the opposite party no.2 on demand. Subsequently, the petitioner provided two utilisation certificates and audit reports about the funds supplied by the opposite party no.2 at the intervention of the Additional District Magistrate (Treasury), North 24 Parganas. The opposite party no.2 doubted about the genuineness of the audit reports, but could not take proper steps to challenge those audit reports before the appropriate forum. According to the opposite party no.2, the petitioner dishonestly induced the opposite party no.2 to provide fund of Rs. 31,24,147/- for performance of the scheduled work, but the said scheduled work was not done in violation of the terms of providing the fund by the opposite party no.2. Accordingly, the opposite party no.2 filed one petition of complaint before the Court of learned Chief Judicial Magistrate at Barasat on 2nd March, 2010, praying for forwarding the same to the Officer-in-Charge of Barasat Police Station under Section 156(3) of the Code of Criminal Procedure for registration of FIR and causing investigation. It is relevant to point out that Prafulla Kumar Bose, President of both the Non-Government Organisations during the relevant period i.e. 2002-2003 to 2005-2006 died on 4th February, 2010. Accordingly, the said petition of complaint filed by the opposite party no. 2 was registered as FIR and Barasat Police Station Case No. 509 of 2010 was started against the petitioner on 10th March, 2010. The police investigated the case and submitted charge sheet against the petitioner on 22nd January, 2011 under Sections 420/406/506/120B of the Indian Penal Code. The petitioner has challenged the said criminal proceeding before this Court by filing this application under Section 482 of the Code of Criminal Procedure, 1973.
(3.) By referring to the averments made in the petition of complaint treated as FIR, Mr. Sekhar Kumar Basu, learned counsel appearing for the petitioner submits that there was no dishonest intention on the part of the petitioner to induce the opposite party no.2 to provide the fund to the Non-Government Organisation of which the petitioner was the General Secretary at the relevant point of time. The fund was provided by the opposite party no.2 for the purpose of scheduled work of the Non-Government Organisation. It is evident from the averments made by the opposite party no.2 in paragraphs 6 and 7 of the petition of complaint that there was progress of development work of each scheduled scheme to some extent. According to Mr. Basu, the opposite party no.2 himself has admitted in the petition of complaint that there was some progress of development works of each scheduled scheme, though the development may not be upto to the satisfaction of the opposite party no.2 and as such, there was no dishonest intention on the part of the petitioner to induce the opposite party no.2 to supply the fund to the Non-Government Organisation from the very inception of the transaction, and thus, the transaction cannot fall within the ambit of "cheating" defined in Section 415 of the Indian Penal Code. Mr. Basu contends that the petitioner has submitted utilisation certificates and the audit reports for utilisation of the fund provided by the petitioner as reflected in the petition of complaint treated as FIR. According to Mr. Basu, since the opposite party no.2 has not taken any step to challenge the authenticity or genuineness of the audit reports, the audit reports prepared by the auditors of the Non-Government Organisation will be deemed to be final and accepted by the parties including the opposite party no.2. Mr. Basu has urged this Court to consider that the contents of the petition of complaint treated as FIR do not disclose commission of offence punishable under Section 420 of the Indian Penal Code.;