Calcutta High Court (Appellete Side)
Ballabh Das Maliah @ Ballav Das Muliah @ ... vs The State Of West Bengal & Anr on 6 September, 2018
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In The High Court At Calcutta
Criminal Revisional Jurisdiction
06.09.18
CRR 909 of 2014
Ballabh Das Maliah @ Ballav Das Muliah @ Ballabh Maliah & Ors.
-vs-
The State of West Bengal & Anr.
Mr. Manjit Singh
Mr. Anand Keshri
... for the petitioners.
Mr. S.G. Mukherjee
Mr. Ranabir Sengupta
... for the State.
The petitioners have assailed the order dated February 13, 2014 passed by the learned
Judicial Magistrate, 1st Class, 6th Court at Asansol, Burdwan in connection with G.R. No. 13 of
2011 under Sections 420/467/468/471/423/120B of the Indian Penal Code, 1860 arising out of
Raniganj Police Station Case No. 03 of 2011 dated January 3, 2011 thereby rejecting the prayer
for discharge under Section 239 of the Code of Criminal Procedure, 1973.
I have heard learned advocates for the respective parties.
Mr. Manjit Singh, learned advocate for the petitioners invites my attention to the petition
of complaint, which was forwarded under Section 156(3) CrPC on the basis of which the police
case under reference was started. The contention of the defacto complainant/opposite party no. 2
as it transpires from the complaint is that he has a landed property which originally belonged to
and was possessed by Kshtipati Nath Maliah and his name was duly been recorded in the RS
record of rights and he died on February 11, 1980 and at the time of his death he left behind
Kumar Rani Kamla Devi(wife), Pushpendranath Maliah(son), Premendranath Maliah(son), Ballav
Das Maliah(son), Pushpanjali Punj(daughter) as his legal heirs to inherit the estate.
Premendranath Maliah was one of the co-sharer of the properties and after his death the
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complainant had inherited the property by inheritance as co-sharer and till this date no partition
was made by metes and bounds and properties is an ejmali properties of Searsole Rajbari Estate.
My attention is invited to paragraph 11 of the complaint which reflects that the
complainant several times requested petitioners herein the accused persons to settle the matter,
but lastly on November 16, 2010 they denied to settle the matter and also refused to give the
share of the complainant/opposite party though he is entitled to get it.
Mr. Singh, further submits that the property sold by the petitioners is the exclusive
property allotted in their favour. So they have exercised their right to alienate the same to the
purchaser and argued that there is an element of civil dispute by and between the parties.
To fortify his stand Mr. Singh has referred to a decision in the case of Md. Ibrahim & Ors.
-v- State of Bihar & Anr., reported in 2009(8) SCC 751 relying on the observations made in
paragraphs 14 and 15 to argue that when the accused sells the property to another person
claiming himself to be the owner and executing sale deed, in such a case it is the purchaser who
is cheated and not the owner of the property. Purchaser may lodge a complaint under Section 420
Indian Penal Code that he was cheated as accused made false representation of ownership and
not the owner. The aforesaid observation made by the Hon'ble Apex Court in the aforesaid
paragraph is reproduced herein for profitable consideration of the case--
"When a sale deed is executed conveying a property claiming ownership thereto, it may be
possible for the purchaser under such sale deed, to allege that the vendor has cheated him by
making a false representation of ownership and fraudulently induced him to part with the sale
consideration. But in this case the complaint is not by the purchaser. On the other hand, the
purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried
to deceive him either by making a false or misleading representation or by any other action or
omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver
any property or to consent to the retention thereof by any person or to intentionally induce him to do
or omit to do any thing which he would not do or omit if he were not so deceived. Nor did the
complainant allege that the first appellant pretended to be the complainant while executing the sale
deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in
favour of the second accused or the second accused by reason of being the purchaser, or the third,
fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the
sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in
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section 415 are not found, it cannot be said that there was an offence punishable under Sections
417/418/419/420of the Code.
A clarification When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term 'fraud' is not defined in the code. The dictionary definition of 'fraud' is " deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines 'fraud' with reference to a party to a contract. In Dr. Vimla v. Delhi Administration, AIR 1963 Supreme Court 1572, this Court explained the meaning of the expression ''defraud' thus:-
" The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The impugned order reflects that prayer of the petitioners/accused persons for their discharge on the ground was that the dispute between the defacto complainant and the accused persons are purely civil in nature and the defacto complainant has already filed a civil suit still pending was declined by the learned Magistrate. It is submitted that the petitioners herein have been falsely implicated by the defacto complainant. While arguing before the learned Magistrate that the criminal case is not maintainable as the allegation levelled against the petitioners in the complaint under Section 156(3) Cr.P.C. as purely civil in nature relied upon a decision of the Hon'ble Apex Court reported in 2012 4 ACR 40 wherein it has been held that if there is a flavour of Civil nature in a proceeding u/s 156(3) of Cr.P.C. regarding cheating and breach of trust, the complaint must disclose relevant mater of ingredients of Sections 405/406/420/34 IPC otherwise the same cannot be agitated in criminal proceeding.
Bearing in mind the background of the dispute by and between the parties, particularly taking into consideration the observation so made by the Hon'ble Apex Court in Md. Ibrahim case (supra), the order dated February 13, 2014 passed in G.R. No. 13 of 2011 is liable to be set aside.
Accordingly, the revisional application being CRR 909 of 2014 is disposed of with direction to the learned Magistrate to revisit the application for discharge under Section 239 Cr.P.C. in terms of the observation and the principles laid down in the case of Md. Ibrahim(supra) after giving an opportunity to the defacto complainant/opposite party no.2.
Urgent xerox certified copy of this order, if applied for, be given to the petitioner after completion of all legal formalities.
sh ( Shivakant Prasad, J.)