Calcutta High Court (Appellete Side)
For The vs Special Judicial on 13 March, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1 3.3.2014
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p.b.
C.R.R. No.2448 of 2012 Mr. Kaushik Gupta, Mr. A. B. Bagchi.
.....For the petitioner.
Mr. Sabir Ahmed, Mr. A. Chowdhury, Mr. L. R. Mondal, Mr. S. Chatterjee.
.....For the O.P. No.2.
Ms. Rituparna De.
.....For the State.
The petitioners being accused persons of CGR No.4483/2008 pending in the court of ld. ACJM, Alipore, arising out of Gariahat P.S. Case No.243/2008 dated 20th December, 2008 u/s.420/406/ 120B IPC has filed this application u/s.482 Cr.P.C. praying for quashing the same so far as the petitioners are concerned.
It is the case of the petitioners that they being owners of the building situated at premises no.16U, Dover Lane, P.S. Gariahat, Calcutta - -00 029 entered into an agreement dated 3rd March, 2004 through general power of attorney with one Rathindra Dutta and one Sanjit Mukherjee of M/s. Sima Creation for developing the land after demolition of the existing building as per said terms of agreement. It is submitted O.P. defacto complainant lodged a complaint alleging that though developers took money from him time to time in terms of more than one agreement for providing him specifies space in the proposed building but ultimately did not provide said space. Accordingly, the 2 O.P. defacto complainant lodged said criminal case u/s.420/406/120B IPC against the present petitioners being land owners and those developers. It is alleged that the petitioners were not parties to the contract in between the developers and defacto complainant and hence they should not be made liable for any laches or negligence or even criminal act on the part of the developers. It is further submitted that the petitioners later on also revoked said power of attorney and that they should not have been arrayed in the said criminal case as accused persons.
Mr. Gupta appearing for the petitioners land owners submits that there was not a single document to show that these petitioners ever induced the defacto complainant to part with the money in favour of the developers. According to him, there is also no material to show that the present petitioners were unduly enriched on account of alleged payment of money by the defacto complainant to the developers. According to him, the petitioners should not have been made liable for laches and/or criminal activity with the developers and that the case should be quashed as far as the present petitioners are concerned. In this connection, he also submits that the charge sheet has already been submitted but there is no legal bar to wait for filing an application for discharge in the court of ld. Magistrate and that the petitioners are at liberty to move this forum for quashing of the proceeding in view of ratio as laid down in the case reported in 1998 SCC (Cri) 1400 (Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors.).
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Mr. Ahmed appearing for the O.P. defacto complainant submits that the defacto complainant parted with the money in view of representations made by the accused developers on the basis of the power of attorney executed by the petitioner landlord in their favour. According to him after investigation the charge sheet has already been submitted against the petitioner land owners as well as developers to show at least prima facie case. He accordingly prays for rejecting this application at this stage.
Ms. Dey appearing for the State produced the case diary and submits that the developers being armed with power of attorney executed by the petitioner land owners took money from the defacto complainant on several occasions in the name of development of said property by way of demolishing the structure already standing and raising a new structure. She submits that whether the intention of cheating was appearing from the very inception can only be decided during trial and not at the time of hearing of this application u/s.482 Cr.P.C.
I have considered the submissions of the parties. There is no denial that the petitioner accused persons being land owners executed the power of attorney in favour of the developers under certain terms and conditions. The developers on the strength of said power of attorney entered into an agreement with the defacto complainant and took money from him on different dates in the pretext of providing him definite area in the proposed building. It appears during hearing that during the long period of taking money by the developers from the defacto complainant the petitioner land owners continued to reside in the existing building in the site. Whether the defacto complainant was cheated by the land 4 owners as well as developers jointly and whether the said intention of cheating was existing from the very inception of executing agreement are mixed questions of law and fact.
Admittedly, at the time of disposing of this application u/s.482 Cr.P.C. it is difficult to enter into said mixed questions of law and fact. It is true that in terms of the ratio of the case of Pepsi Foods Ltd. (supra) the accused persons may at any stage of the trial approach this Court for quashing the criminal proceedings u/s.482 Cr.P.C. But in a case where mixed questions of law and fact are to be decided for coming to a conclusion as to the claim of the accused persons as made in this application, it is difficult to entertain this application u/s.482 Cr.P.C.
Considering these aspects, I dispose of this revisional application with liberty to the petitioners to take all the defences taken in this application in the court below in the appropriate stage for ventilating their grievances in this regard. It is further mentioned that the observations made herein are tentative in nature and that the ld. court below should not be influenced by the same at the time of hearing either any application for discharge and/or at the time of hearing on the point framing of charge.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Tarun Kumar Gupta, J.) 5