- (1.) THE petitioner in the instant criminal revisional application sought for quashing of the charge-sheet under Section 420 of the Indian Penal Code submitted in the Court of Learned Metropolitan Magistrate, 5th Court, Calcutta in connection with G. R. Case No. 2462/04 arising out of Hare Street Police station Case No. 573 dated September 24, 2004.
(2.) IT appears from the various averments made in the revisional application and grounds relied upon therein as well as from the written notes of arguments submitted on behalf of the petitioner and the submissions made in support of this application, during the hearing the aforesaid charge-sheet was challenged and prayer for quashing of the same has been made on the following contentions. (a) The basic facts contained in the First Information Report is lacking of essential elements of offence of cheating punishable under Section 420 of the Indian Penal Code and the materials collected during the investigation does not also make out any case of cheating as against the petitioner. (b) There is no allegation of initial deception. (c) There is nothing to show about the existence of fraudulent and dishonest intention on the part of the petitioner right from the beginning of the transaction in question. (d) Over the dishonour of the self-same cheques five separate cases under Section 138 of the Negotiable Instruments Act were instituted about one year eleven months before the lodging of the FIR, which are still pending. (e) In the complaint made under Section 138 of the Negotiable instruments Act nothing has been alleged constituting an offence under Section 420 of the Indian Penal Code. (f) In connection with the self-same transactions complainant having received part payment no case of cheating can be said to have been made out and there cannot be any question of initial deception or existence of dishonest or fraudulent intention on the part of the accused to cheat the complainant right from the beginning when the transaction was entered into. (g) The facts of alleged receipt of dues by the accused from Nasik municipal Corporation was admittedly known to the complainant since september, 2002 despite that the complainant attempted to make out a case of cheating nearly 2 years after.
(3.) MR. Uday Shankar Gupta, the learned Counsel appearing on behalf of the petitioner assisted by Mr. Tirthankar Ghosh and Mr. Manish Dougar submitted before this Court that continuance of any proceeding on the basis of the impugned charge-sheet would be completely an abuse of process of Court. According to Mr. Gupta not only the allegations made in the FIR has not contained the basic facts constituting the commission of an offence punishable under Section 420 of the Indjan Penal Code nor any materials was collected by the police during investigation to constitute such offence, much prior to that nearly one year and eleven months back for dishonour of the self-same cheques six separate cases under Section 138 of the Negotiable Instruments Act were instituted and the same are still pending. He further submitted in the complaints relates to the offence under Section 138 of the Negotiable Instruments Act there was no allegation which constitutes commission of offence of cheating. According to him admittedly as in the instant case part payment has been made and as such it cannot be said that there was any cheating punishable under Section 420 of the Indian Penal Code has been committed by the petitioner. Mr. Gupta further submitted allegations that the accused got the work executed on credit by the complainant on a representation that upon receipt of payment from Nasik Municipal Corporation all the dues would be paid and when the complainant came to know in September, 2002 about the receipt of payment by the accused and inspite of receipt of such payment no payment has been made to the complainant despite thereof no allegation of cheating has been made in the complaint under Section 138 of the Negotiable instruments Act but a story has been fabricated thereupon in 2004.;