- (1.) This is an application U/s. 482 of the Code of Criminal Procedure filed by Sri Sukumar Jana and Sri Uttam Jana against the O.P., State of West Bengal praying for an order quashing the charge-sheet No. 68/98 dated 9.6.98 in connection with Kotowali P.S. case No. 357/97 dated 8.12.1997 U/ss. 403, 420 and 1208 I.P.C. in G.R. Case No. 1949/97 pending in the Court of SDJM, Midnapore and also for quashing the proceeding of that G.R. case itself. The case of the petitioners is that one Rafika Begam, wife of late Abdul Jaffar, filed a complaint on 2.12.97 in the Court of Chief Judicial Magistrate, Midnapore against this petitioners U/ss. 403, 406, 420, 467 and 120-B IPC praying for an order U/s. 156(3) Cr.P.C. for sending it to police for treating the complaint as an FIR and submitting report after investigation. In that complaint, the complainant also made a prayer for an order issuing of a search warrant for the Bus in dispute. Learned C.J.M. on the basis of that complaint passed an order sending it to the O.C., Kotowali P.S. U/s. 156(3) Cr.P.C. for investigation and report after treating the complaint as an FIR. On the basis thereof, the police started investigation into the case and also seized the Bus in dispute being No. WBG 7836 and handed over the same to the complainant, Rafika Beggm and after completion of investigation submitted charge-sheet. The further case of the petitioners it that before filing of this complaint, the petitioners had entered into an agreement with Abdul Jaffar, since deceased, the husband of the complainant, for purchasing the Bus and made full payment towards its price as agreed upon i.e. Rs. 5 lakhs and had taken delivery of the Bus from the husband of the complainant and the husband of the complainant had affirmed an affidavit filed before the Learned C.J.M., Midnapore on 28.8.95 admitting that he had got the price of the Bus as agreed upon from the petitioners and further that he had also received Rs. 23,000/- as advance out of the agreed hiring charges of Rs. 1,50,000/-. In that affidavit, it was further stated by the Husband of the complainant that this balance amount of Rs. 1,27,000/- would be paid at the time of the proposed change of ownership and he declared that the change of ownership of the Bus would be effected within a period of 3 months from that date. The further case of the petitioners is that the husband of the complainant did not agree to change the ownership of the Bus in favour of the petitioners even after receiving the sum of Rs. 23,000/- and even after the expiry of 3 months as per the contract and receiving the full price of the Bus, as per the agreement. In stead, she has now filed the complaint before the court of Chief Judicial Magistrate suppressing the fact that the petitioners already paid the full price of the Bus as per the agreement. The petitioners allege, that the police submitted the impugned charge-sheet under the above mentioned Sections mechanically and without applying mind. Since admittedly there was an agreement between the parties, even if for the sake of argument it is assumed that the agreement was violated, the remedy of the complainant was lying in a Money Suit before a Civil Court, but under any circumstance, the ingredients of the offences under Section 403 or 406 or 420 or 120-B IPC cannot be said to have been made out and the proceeding started was an abuse of the process of the Court and hence the impugned charge-sheet as well as the entire proceeding of the criminal case before the Ld. Magistrate (G.R. Case No. 1949/97) are liable to be quashed.
(2.) The Ld. Advocate appearing for the O.P. State of West Bengal has contested the petition and has contended that the petition is misconceived and the charge-sheet having been submitted by police after an investigation on their satisfaction as to the making our of a prima facie case in support of the allegations cannot be liable to be quashed under the law.
(3.) The settled principle with regard to quashing of a criminal proceeding has been enunciated by the Apex Court in R.P. Kapoor v. State of Punjab, 1960 AIR(SC) 866. It has been held there that if the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged, no question of appreciating the evidence arises in such a case and it is a matter merely of looking at the complaint or the FIR to decide whether the offence alleged is discharged or not and in such cases it would be ligitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. In another recent judgment (State of U.P. v. O.P. Sharma, 1996 AIR(SC) 2983 ] a three Judge Bench of Hon'ble Supreme Court quoted with approval the following passage from the State of Bihar v. Rajendra Agarwal, 1996 AIR(SCW) 591 "It has been held by this court in several cases that the inherent power of the Court U/s. 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance passed by a Magistrate is concerned, the inherent power could be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At this stage, it is not open for the court either to sift the evidence or appreciate the evidence and come to the conslusion that no prima facie case is made out.";