Calcutta High Court (Appellete Side)
Pankaj Adhikari vs The State Of West Bengal & Anr on 13 July, 2017
Author: Siddhartha Chattopadhyay
Bench: Siddhartha Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R No. 01 of 2016
Pankaj Adhikari
-Vs.-
The State of West Bengal & Anr.
Present : The Hon'ble Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Naba Kumar Das,
Mr. Pathik Bandhu Banerjee.
For the State : Mr. Partha Pratim Das.
For the Opposite Party No. 2 : Ms. Pratima Mishra,
Ms. Payal Patwari,
Mr. Ashesh Kumar Bhattacherjee.
Heard On : 12.05.2017, 13.06.2017,
29.06.2017.
C.A.V. On : 29.06.2017.
Judgment Delivered On : 13.07.2017.
Siddhartha Chattopadhyay, J.:
The petitioner herein has filed this application under Section 401/482 of Cr.P.C. for quashing of proceeding in connection with English Bazar P.S. case No. 309 of 2011 corresponding to G.R. Case No. 1609 of 2011.
2. According to the petitioner, this case has a chequered history. The de facto complainant has filed an application under Section 156(3) of Cr.P.C. against the petitioner contending inter alia that he was the absolute owner of a schedule of land and he entered into a written agreement with the accused petitioner for promoting the said schedule land. The agreement by and between the parties took place on 04.03.2009. On 31st March, 2011 the complainant found that the accused started construction of building over the schedule land in question of the complainant. He raised protest as there was neither any sanctioned plan, nor his signature was obtained in the plan papers. The accused petitioner handed over the Xerox copy of the 'sanctioned plan' on 31st March, 2011 and after receiving the said Xerox copy, the complainant came to know that the said plan has been sanctioned and that the accused put a forged signature in the said "approved sanction plan papers". Being aggrieved at it, the de facto complainant intimated the same to the concerned authorities which includes District Magistrate, S.D.O., Chairman of English Bazar Municipality, and Superintendent of Police, Inspector-in-charge etc. As no action was taken by the said authorities so he has filed an application under Section 156(3) of Cr.P.C. Thereafter F.I.R. was registered against the accused and law was set into motion. After completion of investigation, the Investigating Officer has submitted charge-sheet under Section 468/420/34 of I.P.C.
3. While the investigation was going on, the de facto complainant has filed an application under Section 13 read with Section 2G of Consumer Protection Act 1986 before the District Consumer Redressal Forum and sought for a relief i.e. to deliver possession of 12 flats as per agreement dated 04.03.2009 out of 20 flats and also to deliver possession of 4 flats measuring 750 square feet each and a space of 15 feet by 10 feet for the purpose of the chamber of the complainant. In addition to that he has also prayed for Rs.7 lakhs and also compensation to the extent of Rs.2 lakhs for harassment and mental agony.
4. The said redressal forum allowed the said application of the de facto complainant (herein private opposite party) and directed the present petitioner to deliver possession of 4 flats measuring 750 square feet each and also asked to deliver possession of a room measuring about 150 square feet for his chamber and the petitioner was further directed to deliver 12 flats of his choice within 60 days. The petitioner was further directed to pay Rs.7 lakhs to the petitioner along with interest at the rate of 9 per cent per annum from the date of filing of this case. Being aggrieved by the said order of the District Consumer Redressal Forum, the present petitioner moved before the State Commission. The order of the District Consumer Forum was allowed in part by the State Commission. Be it mentioned, that the present private opposite party did not contest before the State Commission. However, pursuant to the direction of the State Commission, the present petitioner had delivered cheque bearing no. 656286 dated 18.07.2014 of Rs.2000 and another cheque bearing no. 656287 dated 18.07.2014 for Rs.7,63,000/-. The petitioner has also delivered 5 keys of 4 flats and one chamber. The present private opposite party received the demand draft in open court and also received the 5 keys as per final order of the forum. Thereafter, the District Consumer Redressal Forum has mentioned in order No. 2 dated 22.07.2004 in connection with execution case No. 25 of 2014 'the copy of demand draft and receipt of DHR is kept with the record and the execution case is disposed of with full satisfaction'.
5. Therefore, the present petitioner has obeyed the directions of District Consumer Forum and the direction of the State Commission. The private opposite party decree holder has accepted the said amount and execution case was disposed of with full satisfaction. Be it mentioned, that private opposite party has approached before the District Consumer Forum Authority before filing of charge-sheet in connection with criminal case.
6. It appears that charge-sheet was submitted under Section 420/468 of I.P.C. To constitute an offence under Section 420 of I.P.C., 'whoever cheats and dishonestly induces the person deceived to deliver any property to any person and to make alter or destroy the whole or any part of a valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security'. To establish the charge, the complainant was supposed to show that there is a wrongful loss caused to him and wrongful gain to the accused petitioner. It is not disputed that the de facto complainant entered into an agreement with the accused petitioner for promoting the building in terms of the agreement. The learned Counsel appearing on behalf of the private opposite party contended that signature appeared in the so called sanction plan was sent to question documents cell, who opined that this was not the signature of the de facto complainant. The learned Counsel appearing on behalf of the state candidly submitted that there is no investigation on the part of the prosecution that the said signature has been forged by the accused petitioner. The signature appeared in the sanction plan may not be of the de facto complainant, but that does not mean that the petitioner has forged the signature. The plan was submitted before the municipal authority. This apart, there is nothing on record that from the very inception, the intention of the accused petitioner was to deceive. On the contrary, in terms of the order of the District Consumer Forum read with the order passed by the State Commission, he has fully complied with the same and the de facto complainant has also accepted the execution on full satisfaction. The question of deception was not there from the very beginning. There is no investigation, as pointed out by the learned Counsel appearing on behalf of the state as to who had put the signature in the sanction plan in the name of the de facto complainant. The Investigating Officer, as submitted by the learned Counsel appearing on behalf of the state, did not take the specimen signature of the accused petitioner. To come to a finding the handwriting of the accused petitioner was supposed to be compared with. The grievance of the de facto complainant has been fully satisfied, when he has accepted the keys and money in open court. The charge-sheet speaks that the Investigating Officer has collected specimen signature and sent the same to the expert of question document examination bureau (Column No. 16 of charge-sheet). But in the list of witnesses, the name of the expert has not been mentioned vide Column No. 13. The Column No. 10 of the charge-sheet relates to documents recovered/seized during investigation and to be relied upon by the prosecution. In Column No. 10, there is no reflection that expert opinion was there. The said expert was supposed to depose before the trial court. But his name has not been shown. At the risk of repetition, I may be permitted to say pursuant to the agreement the present petitioner time to time has paid a considerable amount to him and that was before filing of the criminal case. Therefore, initial deception was not there. At the same time in absence of expert report offence under Section 468 I.P.C. does not lie and particularly when the learned Advocate appearing on behalf of the state admitted that there is no investigation in connection with under Section 468 I.P.C.
7. In such circumstances, this court is of the view that the de facto complainant being a lawyer has adopted intellectual truancy to squeeze some more money from the accused petitioner. In my view, there is merit in this revisional application. Accordingly, the criminal revisional application stands allowed with cost of R.20,000/- which is to be paid by the opposite party no. 2 to the accused petitioner within a month from the date of communication of the order. The proceeding of G.R. Case No. 1609 of 2011 stands quashed in respect of the present petitioner.
8. Let a copy of this order and LCR be sent to the learned Court below at once for information and taking necessary action.
9. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.