Ashim Kumar Roy, J. - (1.) IN connection with G.R. Case No. 88 of 2010, now pending before the Learned Metropolitan Magistrate, 12th Court, Kolkata arising out of Shakespeare Sarani P.S. Case No. 13 of 2010, the petitioners have been charge sheeted under Sections 420/120B of the Indian Penal Cope. After charge hearing, the learned Magistrate came to a definite finding that a prima facie case for the offences punishable under Sections 420/120B of the Indian Penal Code has been made out against the petitioners and a date is fixed for framing of charge.
(2.) AGGRIEVED by such order, the petitioners have come before this court challenging the same. The learned counsel appearing on behalf of the petitioners vehemently contended that dispute if any is absolutely civil in nature and there was no criminality. He further submitted sometime in August 2007, an agreement for sale was executed between the petitioners, a developer and the de facto complainant and in the said agreement it was agreed that a flat being Flat No. 401 situated at the 4th Floor of the premises No. 86A/2, Suren Sarkar Road, P.S. Beliaghata, Kolkata -700010 with two car parking space, be sold to the de facto complainant against payment of Rs. 15 lakhs. It is further contended in the said agreement there was a clear stipulation that if the developer fails to deliver khas vacant and peaceful possession of the flat to the de facto complainant within 30 days from the date of execution of agreement then the entire amount of Rs. 15 lakhs will be returned to him with an interest @ 24% per annum and the de facto complainant in such an event will also be entitled to damage. It is then contended therefore in the event of failure of the petitioner to deliver the flat to the de facto complainant he is obliged to pay back the consideration amount with interest and damage and on his failure, the remedy available to the de facto complainant is to approach a competent civil court for his remedy and not by lodging the FIR. He further submitted even if it is accepted that before selling of the flat in question, the same was not free from all encumbrances and was held under lease by a third person then in that case, it was for the de facto complainant to satisfy about the title of the property before entering into the sale agreement then in that case it was for the de facto complainant that the buyer to be satisfied about the good title of the property before he entered into the sale agreement and when same was not done, he cannot now allege any criminality against the seller. It is further submitted during the pendency of the application for anticipatory bail of the petitioner they have paid back Rs. 5 lakhs to the petitioner out of the total consideration amount of Rs. 15 lakhs. It is further submitted after lodging of FIR, the de facto complainant filed a money suit but finally the suit was withdrawn with a liberty to file afresh suit but till date no other suit has been filed.
(3.) HEARD the learned counsel appearing on behalf of the petitioners. Considered his respective submission. Perused the materials on record.;