- (1.) CHALLENGING the legality and validity of their prosecution under Section 406/420/120b of the Indian Penal Code in connection with the Case No. 290/c/03, now pending before the Learned Sub-Divisional Judicial Magistrate, kalyani the petitioners moved the instant criminal revision invoking inherent jurisdiction of this Hon'ble Court for quashing of the said proceedings as well as the order of taking cognizance.
(2.) THE case of the complainant as its reflects from the allegations made in the petition of complaint are as follows; (a) In the year 1992 the complainant who is a resident of Delhi came down to West Bengal and decided to permanently settle here at Kalyani town and also to start a business of Fabric Print. At that time as the complainant was vigorously searching for a plot of land at Kalyani Town through the witness Mohan Bapari was introduced with the accused persons as well as with Late Binapani Das, the mother of the accused persons and with Late Bimal Das, one of the brother of them. (b) The accused persons as well as Binapani Das and Bimal Das offered for sale of plot of land situated at B-5/31 (C. A) situated at Kalyani and further represented there is no difficulty in selling the said plot. (c) As the complainant desire to purchase the said land in the name of his wife the accused persons agreed to sell the same at Rs. 4,10,000/ -. (d) In this regard on October 26, 1994 the accused persons paid a sum of Rs. 20,000/- to the Late Bimal Das and on November 17, 1994 a sum of rs. 3,60,000/- to Late Binapani Das. (e) Following the payment of the aforesaid amount of money on november 17, 1994 itself the Late Binapani Das further executed a registered irrevocable power of attorney at her residence in presence of Sub-Registrar, kalyani came there. (f) Out of total consideration amount of Rs. 4,10,000/-the complainant paid Rs. 3,80,000/- whereas in the registered power of attorney the consideration amount was shown as 1,50,000/- to evade the proper duty. (g) In order to transfer any property situated within the Kalyani notified Area as the prior permission of the Government of West Bengal is necessary the complainant repeatedly contacted the accused persons and requested the accused persons as well as the Late Binapani Das and Late Bimal das for obtaining the necessary permission but they on various pretext tried to avoid them and assured the complainant that within a short time they would hand over to him all the relevant papers including the Lease Deed after obtaining necessary permission from the statutory authority they shall execute the Sale deed. (h) In the meantime both Binapani Debi and Bimal Das expired when the complainant requested the accused persons to take steps for mutation when he was told by the said accused persons that they have already made necessary application for mutation in that regard. (i) Sometime in the May, 2003 the complainant made an enquiry at the office of the Estate Manager, Kalyani and came to learn that the accused persons neither applied for mutation or for permission of transfer and he further came to learn the Government has not yet executed any Lease Deed in favour of any of the plot holder. (j) Thereafter the complainant once again met the accused persons and requested them to take steps in this regard when the said accused persons flatly refused to do anything. (k) The accused persons by their advocate's letter dated June 16, 2003 also denied everything about the aforesaid deal.
(3.) THE learned advocate Mr. Biplab Mitra appearing in support of this application for quashing vehemently contended as follows; (i) The dispute is absolutely civil in nature and no criminal prosecution is maintainable. (ii) The remedy against alleged non-performance of agreement of sale by the transferor, when such sale is accompanied by delivery of possession of land, is available under Section 53 (A) of the Transfer of Property Act. (iii) There is no allegation that payment has been received by any one of the accused persons. (iv) There has been a long delay of nine years in filing the complaint from the date of payment. (v) The persons who received the payments are dead. (vi) The allegation that the complainant on several occasions approached the accused persons for obtaining necessary permission from the statutory authorities for transferring the plot of land in question clearly indicates that for transfer of any leasehold land situated within the territory of Kalyani notified Area prior permission of the Government was necessary was very much known to the complainant. (vii) On the allegations that the accused persons being the legal heirs of Late Binapani Debi without applying for mutation and for permission for transfer of the land before the statutory authority falsely claimed that such steps have been taken, no case of the offences punishable under Section 420/406 of the Indian Penal Code can be said to have been made out. In support of his contention Mr. Mitra relied on two decisions of the hon'ble Apex Court relating to the case of Ram Biraji Singh and Anr. Vs. Umesh singh and Anr. , reported in (2006) 3 SCC (Cri) 176 and Suresh Vs. Mahadevappa Shivappa Dananava, reported in AIR 2004 SC 1047. ;