Asha Arora, J. - (1.) By the instant application the petitioners have approached this Court for quashing of the proceedings of complaint Case No. 6305 of 2014 under section 406 and 506 of the Indian Penal Code pending before the learned Judicial Magistrate, 5th Court Alipore.
(2.) The facts in brief leading to the present application may be summarized as follows: On 5/4/2014 the opposite party no. 2 herein/complainant filed a petition of complaint with a prayer under section 156(3) CrPC before the learned Chief Judicial Magistrate Alipore alleging commission of offences under section 406 and 506 IPC by the petitioners/accused persons. The aforesaid prayer was rejected by the learned Magistrate and the complainant was examined under section 200 CrPC whereafter process was issued against the accused/ petitioners herein for the offences alleged. Bereft of unnecessary details, the complainant's case is that he and his wife were members of Alambee Cooperative Society and were allotted a flat at premises No. 16 B Lake View Road. The accused persons/petitioners are the officer bearers and members of the said Society who have been looking after the day to day affairs of the Society. Further case is that after allotment of the flat, the complainant paid the amount due in respect of the said flat but the indenture (deed) is in the custody of the petitioner no. 1. By a letter dated 28/11/2002 signed by the petitioner no. 1 as the secretary of the Society, the complainant/opposite party no. 2 was informed that the indenture could not be delivered to him as per clause 23 and 24 thereof since he had not paid the entire dues in respect of the flat in question. It is well within the knowledge of the accused that the loan amount obtained from Alambee Cooperative Society was duly paid and the instalments were paid within the stipulated period. As the complainant has no financial liability in respect of the flat in question, he is entitled to get back the indenture which has been illegally retained by the accused persons. The complainant made several demands asking for the return of the deed but to no effect. Ultimately, the complainant sent a legal notice to the accused persons but in vain. It is further alleged that after receiving the notice, the accused persons started threatening the complainant with dire consequences. With these allegations the petition of complaint has been filed which led to the aforesaid proceeding.
(3.) Learned counsel for the petitioners strenuously argued that the dispute is purely civil in nature clocked in a criminal proceeding. The ingredients of the offence alleged are not disclosed in the petition of complaint as the deed of transfer was not entrusted to the petitioners in their personal capacity. The indenture remained with the society as per clauses 23 and 24 thereof since the complainant did not pay the dues. According to the learned counsel, since no element of criminality is involved, continuance of the proceedings is an abuse of the process of Court. To buttress his submission reliance has been placed on V.Y. Jose and another versus State of Gujarat and another, 2009 1 SCC(Cri) 996. Learned counsel for the petitioner also referred to a recent judgement of the Supreme Court in Criminal Appeal No. 9 of 2019 arising out of SLP(CrL.) No. 5223 of 2018 in the case of Satish Chandra Ratanlal Shah versus State of Gujarat. Referring to the statutory audit report for the year 2014-2015 of the Alambee Cooperative Housing Society at page 52 of the application and the enquiry report of the Directorate of Cooperative Audit, Government of West Bengal at page 67, relevant page 68 of the application, learned counsel for the petitioners sought to impress that it would be evident from these documents which are of unimpeachable character that a substantial amount is due and payable by the complainant. Placing reliance on the case of State of Orissa versus Debendra Nath Padhi, 2005 AIR(SC) 359 (paragraph 20), learned counsel for the petitioners canvassed that this Court may consider such unimpeachable documents while exercising power under section 482 CrPC for quashing the criminal proceeding.;