PRASHANT KUMAR, J. - (1.) IN this application petitioner prayed for quashing the FIR, entire criminal proceeding / investigation in connection with Pakur Nagar(T) P.S. Case No. 2 of 2004 corresponding to G.R. Case No. 3 of 2004 under Section 406, 408 and 120B of the IPC pending in the court of Chief Judicial Magistrate, Pakur.
(2.) THE brief facts of the case is that in the year 2001 informant wished to purchase a second hand Truck and expressed his desire to co -accused Jamil Mistry. It is further stated that the said Jamil Mistry took him to Calcutta on 30.11.2001 and introduced with petitioner (Somnath Chandra) and Shantanu Chandra. It is further stated that the petitioner and co -accused shown him a second hand Truck bearing registration number WB 23 -7354. It is stated that the informant agreed to purchase the said truck on payment of Rs. 2,50,000/ -. It is further stated that the informant had given advance of Rs. 2,500/ - and promised to pay rest of the amount within a week and returned to Pakur. It is alleged that at Pakur the informant prepared two bank drafts each of the value of Rs. 1,20,000/ - and informed the petitioner and co accused Shantanu Chandra for taking the same. It is stated that on 4.12.2001 the petitioner and other accused persons came to his residence at Pakur and received bank drafts and cash Rs. 7500/ -. It is further stated that thereafter the informant went to Calcutta for taking the delivery of the Truck, but he had been told by the accused persons that there was some delay in preparation of papers, therefore, he had been asked to come after one month. It is then alleged that when the informant went after one month, he had been informed that the said Truck sold to some other person on higher price, however, accused persons assured that they will deliver another truck to the informant. It is stated that the informant went to Calcutta, several times and requested the accused persons for delivery of truck, but they did not give any heed to his request. It is then alleged that when the informant asked the accused persons to return his money, they refused to do so and threatened to implicate him in case. Accordingly the present FIR filed. It is submitted that the petitioner is innocent and he has been falsely implicated in this case. It is further submitted that if the allegation made in the FIR is taken to be true on its face value, no offence under Section 406, 408 and 120B of the IPC is made out. It is then submitted that the case comes under the purview of civil dispute arising out of breach of contractual obligation, therefore, criminal case is not maintainable. Learned Counsel for the petitioner placed reliance on a decision of Hon'ble Supreme Court reported in 2009 (2) JLJR 1. It is further submitted that for the same offence a complaint was filed by the informant vide P.C.R. No. 223 of 2002 in the court of CJM, Pakur and the same is pending. Therefore the present case on police report is barred under the law as no person can be prosecuted for the same offence twice. It is also submitted that there is inordinate delay in lodging the FIR and therefore on that ground also the FIR and the entire criminal proceeding initiated on the basis of such FIR is liable to be quashed.
(3.) ON the other hand, it is submitted by learned Counsel for the O.P. No. 2 that from the allegation made in the FIR, pima facie offence of criminal breach of trust and cheating are made out. It is submitted that it is settled law that only because a civil proceeding can be initiated, it would not necessarily mean that the criminal proceeding should be barred. It is then submitted that the complaint case has been filed by the informant under Section 138 of N.I. Act because the cheque of Rs. 23,000/ - given by the accused -petitioner was dishonoured by the bank due to insufficient fund. Thus the offence alleged in the complaint case is totally different from the offence committed in the present case. Thus in the instant case doctrine of double jeopardy has no application. It is further submitted that the delay in lodging the FIR has been explained in the written report. Moreover the delay in lodging the FIR is no ground for quashing the criminal proceeding. ;