- (1.) This application is filed by Sri Jawahar Lai Ghose, Sri Sumit Mitra and Sri Ranit Mitra, all partners of M/s. Santo Enterprise, praying for an order quashing the criminal proceeding of G.R. No. 1229/97 pending in the Court of the learned Sub-Divisional Judicial Magistrate, Barrackpore on the ground as follows. In the year 1992 they entered into an agreement with the opposite party No. 1, Sri Mihir Kumar Ghose for sale of a flat in favour of the said opposite Party and in terms of the agreement, the flat was duly transferred in the name of the said opposite party by registered sale deed on 1.7.1994. But, therefore, on 9.4.1997, the opposite party filed a complaint before the Court of Sub-Divisional Judicial Magistrate Barrackpore against these petitioners under sections 420 and 120B/34, I.P.C. alleging, inter alia that the petitioners had taken a sum of Rs. 14,200/- in excess of the amount which had been agreed upon under the deed' of agreement for sale and did not refund that money in spite of reminders and the said complaint was sent by the learned Magistrate to the police for investigation after treating it as F.I.R. under section 156(3) of the Code of Criminal Procedure. On the basis thereof, Baranagar P.S. Case No. 114 dated 27.4.97 was started. Subsquently, I.C. Baranagar P.S. submitted a charge sheet against the petitioners stating that a prima facie case under sections 420 and 120B/34, I.P.C. had been made out against the petitioners; it has been further stated by the petitioners that the opposite party No. 1 along with another filed a civil suit before the Court of 3rd Munsif, Sealdah, against these petitioners on the self-same facts praying for a declaration to the effect that he was entitled to receive compensation, damages and refund of alleged excess money to the tune of Rs. 14,200/- and for permanent injunction. It has also been stated that the petitioners filed an application before this Hon'ble Court praying for an order referring the dispute to arbitration. Being aggrieved and dissatisfied with the order dated 6.12.1997 passed by the learned Sub-Divisional Judicial Magistrate, Brrackpore to the effect that on the basis of the said charge sheet, cognizance be taken and notice be issued on the accused persons to appear before this Court on the date fixed, the petitioners have preferred the present application under section 482 of the Code of Criminal Procedure for quashing the proceeding before the Court of S.D.J.M. Barrackpore.
(2.) Neither the O.P. No. 1, Sri Mihir Kumar Ghose, nor the O.P. No. 2, State of West Bengal, has appeared at the time of hearing in spite of ha.ing received the notice.
(3.) Mr. S. Ghose, learned Advocate for the petitioners, has contended that in the first place no criminal case can be against the petitioners since the allegations constitute, if at all, a civil wrong and by no means the ingredients of the offences under Section 420 or 120B/34, I.P.C. as alleged are made out. On a perusal of the copy of the complaint in question filed by the petitioners (vide Annexure 'A'), it is found that as per the agreement entered into between the petitioners and the O.P. No. 1, the O.P. No. 1; admittedly paid a sum of Rs. 3,28,920/- to the petitioners on account of purchase of a flat and it is also undisputed that the petitioners delivered possession of a newly constructed flat in favour of the O.P. No. 1 as per the terms of the agreement.;