SANKAR ACHARYYA, J. - (1.) Two petitioners being husband and wife have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against the opposite party with prayer for quashing of the proceeding being Case No. C/10853 of 2013 under Section 406/420/120B of the Indian Penal Code (in short I.P.C.) and all orders including order dated 20.05.2013 passed by learned 14th Metropolitan Magistrate, Calcutta, now pending before the learned 18th Metropolitan Magistrate, Calcutta. Petitioners have been living in United States of America at present. The opposite party is co-brother of the petitioner no. 1. Therefore, the petitioners and opposite party are relatives to each other. The petitioners purchased a flat at 48 A, Indian Mirror Street, Flat No. 2B, Police Station Taltala, Kolkata- 700013 in the year 2004 and that is their only residence in India. For maintaining that property and completing of the registration of purchase of that property by the petitioners, the opposite party was entrusted by petitioner no. 1 giving power of attorney in March 2005 as the petitioners reside permanently in United States of America. In the application petitioners have claimed that they made several payments to the opposite party between March 2005 to January 2011 but due to negligence of opposite party registration of that flat was not completed. Under such circumstances, on 24.01.2013 the petitioners revoked the power of attorney made in favour of opposite party and made fresh power of attorney in favour of one Sanat Kumar Roy to look after the said property.
(2.) After such revocation of the power of attorney the opposite party lodged a complaint against the petitioners in the Court of learned Chief Metropolitan Magistrate, Calcutta under Sections 406/420/120 B of the I.P.C. As per allegations of said complaint, the present petitioners who are accused in the complaint case intended to sell out their flat at 48 A, Indian Mirror Street. Opposite party got the information through website advertisement in 'Acre 99'. The opposite party agreed to purchase that property accepting the offer of the petitioners at a price of Rs.33,00,000/- and also to purchase the furniture and fixtures and electrical fittings of that flat at a further sum of Rs.2,00,000/-. On approach of the petitioners to meet up their some outstanding amounts to various persons the opposite party made payment of Rs.10,80,000/- to different persons and he also paid Municipal taxes and maintenance charges of Rs.17,331/- expecting that the said amount would be adjusted at the time of execution of sale deed in respect of that flat in favour of opposite party. Petitioners did not execute the deed of sale in favour of the opposite party and under their instruction the opposite party was prevented to enter into their flat. On repeated request of the opposite party, the petitioner no. 1 gave assurance and undertakings to make the payment but hatching a criminal conspiracy both the petitioners denied to make any payment to the opposite party. The opposite party entrusted the petitioners making payment of huge amount of money for their selling the said flat to the opposite party. Since inception with intention of cheating the opposite party made glossy representations to the opposite party and allured him to part with and/or delivery of the valued property (money) and thereby cheated the opposite party and committed criminal breach of trust entering into a criminal conspiracy between petitioner no. 1 and petitioner no. 2. On the said petition of complaint learned Chief Metropolitan Magistrate, Calcutta took cognizance and transferred the case to learned 14th Metropolitan Magistrate, Calcutta. On 20.05.2013 the opposite party as complainant was examined on S.A. On oath the opposite party as complainant narrated the case made out in the complaint. Thereafter, learned 14th Metropolitan Magistrate, Calcutta issued summons upon the petitioners as accused.
(3.) In this application petitioners have challenged the said issuance of summons and they have claimed that no case under Section 406/420 of the I.P.C. or under Section 120 B of the I.P.C. could be made out against the present petitioners from the very face value of the proceeding. According to them, the proceeding is liable to be quashed. They have claimed that according to the allegations made in the case of the complaint part transaction was made in the year 2011-2012 as alleged and the complaint was filed on 01.04.2013 which is not maintainable at such distance of time. The petitioners have alleged that in order to grab the flat of the petitioners the opposite party retained valuable documents of the property in his custody and on being asked by petitioners to return the same the opposite party filed the complaint against the petitioners. Being a near relation the petitioners permitted the opposite party to stay in the flat in question but taking advantage of that, petitioners have been ousted from their property by the opposite party by locking the premises. In order to restrain the petitioners and their agents the opposite party filed one after another application under Section 144 of the Cr.P.C. before the learned 10th Metropolitan Magistrate, Calcutta. The petitioners were never interested to sell out their flat to the opposite party and they never entered into any agreement for such sale. Petitioners have stated that the opposite party never paid a single penny to them in pursuant to alleged agreement for sale of the flat. Petitioners have specifically stated in paragraph 32 that as being co-brother the petitioners and the opposite party made financial transaction with each other for helping them out and some amount was given to the petitioners as loan but the non-payment of such loan amount does not make out any offence under Sections 420/406/120 B of the Indian Penal Code. Alleging the aforesaid facts the petitioners have prayed for quashing of the proceedings in Case No. 10853 of 2013.;