Patna High Court
Shri Malay Chatterji & Ors vs The State Of Bihar & Anr on 5 April, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.793 of 2009
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1. Shri Malay Chatterji S/O Late Nut Behari Chatterji R/O House No. 4, 2nd Street,
Shanti Niketan, P.S. Nanakpura, New Delhi-110021
2. Smt. Chandana Chatterji W/O Shri Malay Chatterji R/O House No. 4, 2nd Street,
Shanti Niketan, P.S. Nanakpura, New Delhi-110021
3. Smt. Archana Mukherjee W/O Sri Bijon Kumar Mukherjee R/O 168/C, 2nd
Floor, Block G, New Alipur, P.S. New Alipur, Kolkata-700053
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Smt. Pratibha Prasad W/O Late Ramesh Prasad Moh- Makhaniakuan, P.S.
Pirbahore, Distt. Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Amit Srivastava, Adv.
Mr. Girish Pandey, Adv.
For the Respondent No.2: Mr. Durganand Jha, Adv.
For the State : Mr. Manoj Kumar Jha, AC to GA-1.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 5th-04-2012
Petitioners/accused have filed instant writ with a prayer to
quash order of cognizance dated 25.08.2008 passed by Sri Ramayan
Ram, Judicial Magistrate, 1st Class, Patna whereby and whereunder
petitioners have been summoned to face trial for an offence
punishable under Sections 120B, 406, 420, 467, 468 IPC in
connection with Complaint Case No. 1848C of 2008 along with entire
prosecution so launched on the basis of Complaint Case No. 1848C of
2008.
2. Briefly stated, the prosecution was launched by filing a
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Complaint Case No. 1848 of 2008 before the learned Chief Judicial
Magistrate, Patna at the behest of O.P. No.2, Pratibha Prasad against
Dr. Prasoon Kumar Banerjee (since deceased), Dr. Praveer Kumar
Banerjee, Archana Mukherjee, Chandana Chatterjee, Maloy Kumar
Chatterjee for an occurrence alleged to have committed on 16.11.1998
and onwards disclosing therein that husband of complainant Late
Ramesh Prasad along with Vijay Prakash were builders and for that
purpose they used to purchase lands from the land holders. In the
aforesaid event, they came across the news that the accused persons
have got substantial land at Mohalla-Shashtrinagar measuring 4.35
Acres and accordingly they contacted, negotiated and then the deal
was finalized. However, during course thereof it was disclosed at the
end of accused persons that land fell under Urban Ceiling Proceeding.
So, it was disclosed by the accused persons that the case be looked
after by them and after conclusion of the Ceiling case, the land will be
transferred in their favour. In token thereof, the accused persons after
receiving part payment; 10 Lacs by Dr. Prasoon Kumar Banerjee, 2.50
Lacs each by Archana Mukherjee and Chandana Chetterjee, executed
deed of agreement on 16.11.1998, 23.12.1998 and 03.01.1999
respectively with regard to different area of different plot number.
Complainant's husband contested Ceiling case along with his partner,
Vijay Prakash and as, subsequently, Urban Ceiling Law was repealed
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therefore proceeding terminated. Then thereafter the husband of
complainant along with his partner made persisting request including
she herself after demise of her husband to execute sale deed because
of the fact that apart from Rs.15 Lacs paid at the time of execution of
agreement, Rs.17.50 Lacs was paid to the accused at different
occasion through the bank draft. But the accused persons through their
conduct have shown carrying an intention to deceive and cheat,
negotiated, received payment and finally sold away the concerned
plots to third person. By such action accused persons have illegally
digested Rs.32.50 Lacs.
3. The learned Chief Judicial Magistrate transferred the
complaint petition to the court of Magistrate for holding an inquiry
under Section 202 of the Cr.P.C. during course of which complainant
was examined on S.A. Apart from examination of three witnesses on
her behalf certain documents have also been furnished and then by the
order impugned the learned Magistrate summoned the petitioners as a
result of which petitioners became aggrieved and have filed the instant
petition.
4. It has been submitted on behalf of the petitioners that
whatever narration has been made in the complaint petition gives a
clear-cut impression that it does not happen to be justifying the
criminal prosecution rather attracts civil cause on account of non
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honouring the terms of agreement even in worst case accepting the
prosecution version in its entirety for an argument sake. It has further
been submitted that complainant was very much apprehensive with
regard to fate of the criminal prosecution and so had launched three
Title Suits bearing numbers 118/2008, 119/2008, 120/2008 before the
competent civil court. Then submitted that it is wrong to say that
petitioners have violated any terms of contract rather it happens to be
the complainant herself at fault. Also submitted that actually the
complainant has become annoyed with partner Vijay Prakash who had
finally negotiated with the petitioners and got the fruit. The
complainant neither continued her joint effort with Vijay Prakash with
whom husband of complainant had jointly negotiated with the
petitioners and on account thereof, Vijay Prakash separately
negotiated and got the deal finalized. After death of complainant's
husband, her Bhainsur and son had negotiated separately and
independently with the petitioners on new terms and conditions but
could not be able to arrange the considerations amount within the
stipulated period therefore as per terms of agreement, the negotiation
became inoperative and non executable. Not only this, although the
terms of agreement did not put any obligation upon petitioners to
return back the amount so paid to the petitioners as an earnest money,
in case there happens to be default on the part of otherside, even then
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petitioners felt pity on account of complainant becoming a widow and
so returned back all the amount whatever they received at their end
(after bifurcating half as well as having separate payment relating to
Vijay Kumar) but to utter surprise, the complainant herself returned
back the bank draft with a note of caution that now the matter will be
decided through litigation. Also submitted that even today the
petitioners felt pity upon her and are ready to return back the amount
whatever stands to her share.
5. It has further been submitted that although the
cognizance has been taken under Sections 406,420, 467, 468 of the
IPC as a major Sections but none of the Sections is applicable in light
of the fact that petitioners are the land holders and further they have
not deceived the complainant in such a way to part with her
belongings nor had created any false document on this score.
6. Learned counsel for the petitioners has referred the
following decisions:-
1. AIR 2000 SC 2341, 2. AIR 2000 SC 754, 3. (2005) 10
SCC 228, 4. (2005) 13 SCC 699, 5. (2007) 12 SCC 1, 6. (2009) 3
SCC 78, 7. (2009) 9 SCC 682, 8. (2010) 10 SCC 361, 9. 2003(4)
PLJR 208 (SC). 10. AIR 2011 SC 1090.
7. On the other hand, learned counsel for O.P No.2
submitted that intention is the mental state of the accused which could
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not be perceived at the time of negotiation. The subsequent conduct of
the parties is the theme which suggests the action of the accused and
further, whether the action attracts criminal prosecution. If the
conduct of the accused suggests that negotiation was taken up with
mala fide intention to put the complainant to wrongful loss to have
themselves under wrongful gain and for materializing the same, when
any document is created to inspire confidence and relying thereupon
when the accused succeeded to get the valuable part with from the end
of victim which, if would have been known to victim, could not be
parted with, certainly attracts criminal prosecution and so the learned
lower court had summoned the petitioners rightly. Then submitted
that any cause may give and attract the criminal cause as well as civil
cause. Mere having a colour of civil dispute will not discard the
criminal prosecution unless and until it is conclusively found and held
that in the facts and circumstances of the case criminal prosecution is
unwarranted as mens rea is absent.
8. So far present case is concerned, admittedly, Vijay
Prakash was subsequently gained over by the petitioners by this way
or that way on account thereof he deflected. But the fact remains that
negotiation was finalized, the deed of agreement was executed and
under the aforesaid event, the complainant has been deprived of Rs.32
Lacs and odd illegally by the petitioners who have retained it and
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further by such action, complainant has been put to wrongful loss.
Therefore, the order impugned is legal, just and proper and does not
warrant interference. Also referred the following decisions:-
1. 2000(3) PLJR 56(SC), 2. AIR 1989 SC 885, 3. 2006(1)
PLJR 600, 4. (2007) 4 BBCJ 128, 5. (2009) IV PLJR 991.
9. Also submitted that whatever factual aspect has been
raised on behalf of petitioners is a matter of trial and on the basis
thereof the order impugned cannot be struck down.
10. Learned AC to GA-1 submitted that for the purpose of
taking cognizance and summoning the accused under Section 204 of
the Cr.P.C., only prima facie material has to be seen. It is evident
from the order impugned that the learned lower court had found the
same. So far other parts are concerned, has followed the argument
raised on behalf of O.P. No.2
11. Section 406 is a penal provision for criminal breach of
trust which has been defined under Section 405 of the IPC. For better
appreciation the same is incorporated which is as follows:-
"405. Criminal breach of trust.- Whoever, being in any
manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses of disposes of that property in
violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust, or wilfully
suffers any other person so to do, commits ―criminal breach of
trust‖.
Explanation 1.- A person, being an employer [of an
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establishment whether exempted under section 17 of the
Employees' Provident Funds and Miscellaneous Provision Act,
1952 or not] who deducts the employee's contribution from the
wages payable to the employee for credit to a Provident Fund or
Family Pension Fund established by any law for the time being in
force, shall be deemed to have been entrusted with the amount of the
contribution so deducted by him and if he makes default in the
payment of such contribution to the said Fund in violation of the
said law, shall be deemed to have dishonestly used the amount of
the said contribution in violation of a direction of law as aforesaid.
Explanation 2.- A person, being an employer, who deducts
the employee's contribution from the wages payable to the
employee for credit to the Employees' State Insurance Act, 1948,
shall be deemed to have been entrusted with the amount of
contribution so deducted by him and if he makes default in the
payment of such contribution to the said Fund in violation of the
said Act, shall be deemed to have dishonestly used the amount of
the said contribution in violation of a deduction of law as aforesaid.‖
(12)--To attract application of Section 406, the following
ingredients are absolutely necessary to be proved:-
(a) The accused must be entrusted with property or
dominion over property
(b) The person so entrusted
(i) dishonestly misappropriated or converted to his own use
that property
(ii) dishonestly used or disposed of that property or
willfully suffer and any other person to do so, in violation of
(A) any direction of Law, prescribing the mode in which
such trust is to be discharged
(B)Any legal contract made touching the discharge of such
trust.
13. In likewise manner Section 420 is a penal provision
and the definition Clause, may be taken with aid of Section 415 of the
IPC as Section 420 IPC may be identified with its aggravated form.
"415. - Whoever, by deceiving any person fraudulently or
dishonestly induces the person so deceived to deliver any property to
any person, or to consent any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived,
and which act or omission causes or is likely to cause damage or harm
to that person in body, mind, reputation or property, is said to
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‗cheat'.‖
Explanation- A dishonest concealment of facts is a
deception within the meaning of this section.
14. Section 420 IPC deals with that species of cheating
which involves delivery of property or destruction of valuable
security. So far ingredient of Section 415 IPC is concerned, deception
is the first and foremost element.
15. Sections 467 and 468 happen to be penal provisions
and is found guided by Section 463 as well as 464 of the IPC.
Section 463:- Whoever make any false documents or false
electronic record of a document or electronic record with intent to
cause damage or injury to the public or to any person or to support
any claim or title or to cause any person to part with property or to
enter into any express or implied contract or with intent to commit
fraud or that fraud may be committed, commits forgery.
"464. Making of false document.- A person is said to
make a false document or false electronic record.
First- Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or
part of a document;
(b) make or transmits any electronic record on
part of any electronic record;
(c) affixes any digital signatures on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the digital
signature, with the intention of causing it to be
believed that such document or part, of
document, electronic record or digital
signature was made, signed, sealed, executed,
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transmitted or affixed by or by the authority
of person by whom or by whose authority he
knows that it was not made, signed, sealed,
executed or affixed; or
Secondly- Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed with
digital signature either by himself or by any other person,
whether such person be living or dead at the time of such
alteration, or
Thirdly- Who dishonestly or fraudulently causes any person
to sign, seal, execute or alter a document or an electronic
record or to affix his digital signature on any electronic
record knowing that such person by reason of unsoundness
of mind or intoxication cannot or that by reason of
deception practiced upon him, he does not know the
contents of the document or electronic record or the nature
of the alteration.‖
Explanation 1:- A man's signature of his own name may
amount to forgery.
Explanation 2:- The making of false document in the name
of a fictitious person, intending it to be believed that the
document was made by a real person, or in the name of a
deceased person, intending it to be believed that the
document was made by the person in his lifetime, may
amount to forgery.
Explanation 3:- For the purpose of this section, the
expression ―affixing digital signature‖ shall have the
meaning assigned to it in clause (d) of sub-section (1) of
Section 2 of the Information Technology Act, 2000.
16. After conjoint reading of both the Sections it is evident
that Section 463 IPC attracts wherever fake document or fake
electronic record is made/prepared in order that it may be used as
genuine prejudicial to other valuable right while Section 464 IPC
deals with process of the construction of fake document in following
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way:-
(a) by making, signing, sealing or executing a document
(b) by alteration of a document
(c) by causing a person, who is innocent at the contents or
nature at the alteration, of a document, to sign it.
17. Now coming to the material record, from cursory
perusal as well as having minute observation thereof clearly indicates
that there is no allegation with regard to preparation of any false,
forged document nay there happens to be any sort of allegation that
petitioners were not at all competent to execute the document having
no title, possession with regard to land covered under deed of
agreement. Both the parties have entered into an agreement at
different stage in different way by executing deed of agreement
containing different terms. The claim of the petitioners happens to be
that as the complainant failed to honour the terms of agreement by
tendering remaining consideration amount within the stipulated period
therefore as per terms of the agreement, the agreement became nonest
in the eye of law while, on the other hand, it is version of the
complainant (respondent 2nd party) that she is ready to perform her
part and as the petitioners escaped themselves from performing and
discharging their obligation as such three Title Suits bearing no.
118/2008, 119/2008 and 120/2008 have been filed and the same are
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still pending. The process of escapement has been overtly identified as
criminal act for which instant case has been filed. However, admitted
facts remain over subsistence of deed of agreement. Whatever
controversy arose happens to be over its enforcement. So creation of
the false document or cheating/deception by way of creation of false
document appears to be misconceived and on account thereof, prima
facie application of 467, 468 is not attracted. In likewise manner
carrying of dishonest intention since the beginning of negotiation is
also of no worth in the background of the fact that the negotiation was
not at all materialized with the O.P. No.2 at an earliest round rather it
was in between her husband and Vijay Prakash at one side and
petitioners at other. Vijay Prakash neither happens to be a party of
Title Suit Nos 118/2008, 119/2008 and 120/2008 nor he supported the
plea of O.P. No.2 by having his presence at the side of O.P. No.2
rather O.P. No.2 herself outcast him. Furthermore, from the counter
affidavit filed on behalf of O.P. No.2, it is evident that there is no
explanation relating to annexure-12, letter dated 19.07.2008 sent by
O.P. No.2 returning back the cheques of Rs.13,50,000 issued by
petitioners in her favour after deducting the amount to the extent of
falling under share of Vijay Prakash.
18. The methodology for identifying and justifying
application of the relevant Sections has properly been discussed in
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2011(7) SCC 59 wherein at para-15, it has been held as such:-
"15. Criminal breach of trust is defined under Section 405
IPC and Section 406 thereof deals with punishment to be awarded to
the accused, if found guilty for commission of the said offence i.e.
with imprisonment for a term which may extend to three years, or
with fine, or with both. Section 420 IPC deals with cheating and
dishonestly inducing delivery of property. Cheating has been defined
under Section 415 IPC to constitute an offence. Under the aforesaid
section, it is inbuilt that there has to be a dishonest intention from the
very beginning, which is sine qua non to hold the accused guilty for
commission of the said offence. Categorical and microscopic
examination of the FIR certainly does not reflect any such dishonest
intention ab initio on the part of the appellant. Section 506 IPC deals
with punishment for criminal intimidation. Criminal intimidation,
insult and annoyance have been defined in Section 503 IPC but the
FIR lodged by the complainant does not show or reflect that any such
threat to cause injury to person or of property was ever given by the
appellant to the complainant.‖
19. It is needless to remind that pendency of civil suit will
debar prosecution for criminal offence however with exception when
both have got independent identity. Thus for that purpose allegation as
a whole should be taken into consideration to search out whether both
have properly been demarcated or are intermingle with each other. So
far present controversy is concerned, taking into account the
averments as well as statement of the witnesses now remains no room
of controversy that instead of attracting the penal provisions as
disclosed above the dispute happens to be purely civil in nature and
when there happens to be background of civil dispute, then the
criminal proceeding is unwarranted and for that para-17 of the above
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referred decision is quoted below which goes as follows:-
"17. In our opinion, the matter appears to be purely civil in
nature. There appears to be no cheating or a dishonest inducement for
the delivery of property or breach of trust by the appellant. The
present FIR is an abuse of process of law. The purely civil dispute, is
sought to be given a colour of a criminal offence to wreak vengeance
against the appellant. It does not meet the strict standard of proof
required to sustain a criminal accusation. In such type of cases, it is
necessary to draw a distinction between civil wrong and criminal
wrong as has been succinctly held by this Court in Devendra v. State
of U.P., relevant part thereof is reproduced hereinbelow: ((2009 7
SCC 495, SCC p.505, para 27)
―27. ... A distinction must be made between a civil wrong
and a criminal wrong. When dispute between the parties constitute
only a civil wrong and not a criminal wrong, the courts would not
permit a person to be harassed although no case for taking cognizance
of the offence has been made out.‖
20. In a leading decision AIR 1992 SC 604 State of
Hariyana & Ors. Versus Bhajan Lal & Ors. The Hon'ble Apex
Court has identified following categories including others wherein
prosecution can be quashed and those are :-
"(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case
against the accused.
(2) Where the allegations in the
first information report and other
materials, if any, accompanying the
FIR do not disclose a cognizable
offence, justifying an investigation by
police officers under Section 156(1)
of the Code except under an order of
a Magistrate within the purview of
Section 155 (2) of the Code.
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(3) Where the uncontroveretd
allegations made in the FIR or
complaint and the evidence collected
in support of the same do not disclose
the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the
FIR do not constitute a cognizable
offence but constitute only a non-
cognizable offence, on investigation is
permitted by a police officer without
an order of a Magistrate as
contemplated under Section 155(2) of
the Code.
(5) Where the allegations made
in the FIR or complaint are so absurd
and inherently improbable on the
basis of which no prudent person can
ever reach a just conclusion that
there is sufficient grounds for
proceedings against the accused.
(6) Where there is an express
legal bar engrafted in any of the
provisions of the Code or the
concerned Act (under which a
criminal proceedings is instituted) to
the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding
is manifestly attended with malafide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge."
21. The facts of the case having under criteria no.1,3, 7 as a
result of which, the instant criminal proceeding appears to be
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unwarranted.
22. Thus, looking into the matter from all angles, the
prosecution of the petitioners for commission of the alleged offence
would be clear abuse of the process of law. Accordingly, order dated
25.08.2008passed by Sri Ramayan Ram, Judicial Magistrate, 1 st Class, Patna in connection with Complaint Case No. 1848C of 2008 summoning the petitioners to face trial stands quashed.
23. Consequent thereupon, petition is allowed.
24. Parties will bear their own costs.
(Aditya Kumar Trivedi, J) Patna High Court The 5th Day of April 2012 Md. Perwez Alam/AFR