Calcutta High Court (Appellete Side)
Arun Kumar Bhowmick vs Kallol Biswas on 11 April, 2016
Author: R. K. Bag
Bench: R. K. Bag
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4.2016.
p.b.
CRR 2181 of 2014
Arun Kumar Bhowmick
Vs.
Kallol Biswas
Mr. Sandipan Ganguly,
Mr. Dipanjan Dutt.
....for the petitioner.
Mr. Aniket Mitra,
Mr. Jayanta Pandit.
....for the O.P.
The petitioner has preferred this revision under Section 482 of the Code of
Criminal Procedure praying for quashing of the proceeding of Case No.C-44 of
2013 pending before the court of learned Additional Chief Judicial Magistrate,
Barrackpore.
It appears from record that the opposite party filed a petition of complaint
before the court of learned Additional Chief Judicial Magistrate, Barrackpore,
against four accused persons including the present petitioner praying for
forwarding the said petition of complaint to the Officer-in-Charge of the
concerned police station under Section 156(3) of the Code of Criminal Procedure
for registration of the FIR and causing investigation. Accordingly, Dum Dum
Police Station Case No.387 dated August 19, 2011 was registered. The police
investigated the said criminal case and submitted final report under Section 173
of the Code of Criminal Procedure on December 23, 2011. The opposite party
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filed an application praying for further investigation of the criminal case without
accepting the final report. On December 6, 2012 learned Magistrate refused to
direct for further investigation of the criminal case, but treated the objection
application filed by the opposite party as complaint and proceeded with the
hearing of the said case. On February 20, 2014 learned Magistrate examined the
opposite party and issued process against the petitioner and other accused
persons for the offence under Sections 420/506/120B/34 of the Indian Penal
Code. The petitioner has prayed for quashing of the said complaint case on the
ground that no offence is made out against the petitioner from the petition of
complaint and from the evidence adduced before learned Magistrate by the
opposite party.
Mr. Dipanjan Dutt, learned counsel led by Mr. Sandipan Ganguly, learned
counsel for the petitioner submits that the opposite party has not made any
specific allegation against the petitioner either in the petition of complaint or in
the statement recorded by learned Magistrate under Section 200 of the Code of
Criminal Procedure. According to Mr. Dutt, the petitioner drafted the documents
on behalf of both the opposite party and the alleged co-accused persons as an
advocate and as such no offence is made out against him.
On the other hand, Mr. Aniket Mitra, learned counsel for the opposite party
has referred to paragraph 4 of the petition of complaint and submitted that the
petitioner in connivance with the other co-accused persons deceived the opposite
party to the tune of Rs.8,93,000/- and drafted the documents on behalf of the
co-accused persons and the opposite party for the purpose of deceiving the
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opposite party and as such, the offence under Sections 420/120B/34 of the
Indian Penal Code is made out against the petitioner. Mr. Mitra further submits
that the trial is already started and one prosecution witness has already been
examined before the trial court and as such it will not be a fit case for quashing
the proceeding against the petitioner.
On consideration of the petition of complaint filed by the opposite party
before the court of learned Magistrate, I find that the opposite party/complainant
entered into an agreement with the co-accused persons like Subir Roy,
Ramendra Narayan Dutta and Utpal Dutta for purchase of a flat and a car
parking space at Niharika Apartment, 14/22, N. N. Road, P.S. Dum Dum,
Kolkata - 700078 at a consideration of Rs.25,57,500/- and an additional
consideration money of Rs.4,50,000/- for the car parking space. It is alleged in
the said complaint that the deed of conveyance in respect of the said flat was
executed showing the price of the flat as Rs.19,37,500/- and thereby the opposite
party was deceived for Rs.6,20,000/-. It is further alleged that the opposite party
was compelled to give subsequently a sum of Rs.2,73,000/- as ancillary
expenditure after obtaining possession of the flat. The opposite party has alleged
that the co-accused persons Subir Roy, Ramendra Narayan Dutta and Utpal
Dutta misappropriated Rs.8,93,000/- by deceiving the opposite party from the
very inception of the transaction. The only role of the present petitioner is that he
drafted the deed of agreement, and other documents in connection with the
purchase of the flat by the opposite party. While the opposite party gave
statement before learned Magistrate under Section 200 of the Code of Criminal
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Procedure, he only alleged that the present petitioner is a Lawyer and he
prepared the deed. There is no specific allegation of collusion against the present
petitioner either in the petition of complaint or in the statement given by the
opposite party before the court of learned Magistrate, though the general
allegation of collusion is levelled against all the accused persons of the case. By
applying the test laid down by the Supreme Court in "State of Haryana v.
Bhajanlal" reported in 1992 SCC (Cri) 426 in the facts of the present case, I am
of the view that the opposite party has failed to make out any case against the
present petitioner for prosecuting him for the offence under Sections
420/506/120B/34 of the Indian Penal Code only because the petitioner has drafted the documents on behalf of other co-accused persons and the opposite party.
In view of my above findings, I would like to hold that the continuation of the criminal proceeding against the present petitioner will be an abuse of process of the court and as such the criminal proceeding is liable to be quashed against the present petitioner under Section 482 of the Code of Criminal Procedure. As a result, the criminal proceeding being Case No.C-44 of 2013 pending before the court of learned Additional Chief Judicial Magistrate, Barrackpore, is quashed so far as the present petitioner Atanu Bhowmick is concerned. I would like to make it clear that the said criminal proceeding will continue against the other co- accused persons before the learned Magistrate.
The criminal revision is, thus, disposed of.
5Let a copy of the order be sent down to the learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(R. K. Bag, J.)