Calcutta High Court (Appellete Side)
Achintya Kumar Bera & Ors vs State Of West Bengal & Anr...Opposite ... on 12 January, 2018
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No. 2855 of 2015
Achintya Kumar Bera & Ors. ...Petitioners
Versus
State of West Bengal & Anr...opposite parties
For the Petitioners : Mr. Prabir Mitra
Mr. Pinak Mitra
Ms.U. Chatterjee
Ms. S. Ghosh
For the O.P. No. 2 Mr. Soumen Dutta
For the State Mr. Ayan Basu
Heard on : 09.01.2018
Judgment on : 12.01.2018
Debi Prosad Dey, J. :-
1.This is an application under Section 482 of the Code of Criminal Procedure for quashing of the proceedings in connection with Charge-Sheet No. 254/2015 dated 30.06.2015 under Section 406/12-B of the Indian Penal Code arising out of Contai Police Station Case No. 118/15 dated 25.03.2015 under Sections 406/120B of the Indian Penal Code corresponding to G.R. Case No. 519/15 pending before the Court of the Learned Additional Chief Judicial Magistrate, Contai.
2. Learned Advocate appearing on behalf of the petitioners contended that the de-facto complainant executed a power of attorney dated 6th May 2010 in favour of her husband/petitioner No. 1 for transfer of her properties and thereafter petitioner No. 1 transferred the properties on the strength of such power of attorney by executing a deed-of-gift in favour of her only son, petitioner No. 2. However, in the meantime opposite party No. 2 executed a registered deed of revocation of power of attorney by revoking the registered deed of Power of Attorney which was executed by Abha Rani Bera in favour of her husband.
3. Learned Advocate appearing on behalf of the petitioner further contended that the opposite party No. 2 had also filed a Title Suit being No. 62 of 2015 before the First Civil Judge (Junior Division), Contai praying for decree of declaration that the deeds of Gift being No. 3165 of 2010 and 5263 of 2010 as well as the alleged power of attorney being No. 63 of 2010 are products of collusion, fraud, undue influence and void and not binding upon Avarani Bera and also prayed for a decree of permanent injunction and other consequential reliefs. It is submitted that the dispute primarily is civil dispute between the parties and therefore, the instant criminal case ought to be quashed. Secondly it is further submitted that the occurrence took place way-back in the years 2010 but the First Information Report under Section 156 b(3) of the Code of Criminal Procedure was filed in the year 2015 and accordingly the said First Information Report is hit by Section 468 of the Code of Criminal Procedure and therefore, the learned trial Court has erroneously taken cognizance of the charge sheet submitted by the appellant.
4. Learned Advocate appearing for opposite party No. 2 however, contended that though primarily it appears that the dispute between the parties is civil in nature but in fact the petitioners are guilty of criminal breach of trust since they in collusion with each other had dishonestly misappropriated and converted the property of the de-facto complainant to their own use by manufacturing series of documents. It is further contended that there is absolutely no bar to continue with the criminal case under reference in view of the settled principle of law that the criminal prosecution cannot thwarted merely because civil proceedings are also maintainable.
5. Mr. Bose learned Advocate appearing on behalf of the State contended that in paragraphs 12 and 13 of her application Abha Rani has categorically explained the reasons for the delay in lodgment of the First Information Report and since the delay has properly been explained by the de-facto complainant, lodgment of the First Information Report is not hit by Section 468 of the Code of Criminal Procedure.
6. The quintessence of the offence as stipulated under Section 405 is that the present accused being entrusted with the property or with dominion of the property, dishonestly misappropriated or converted for their own use of that property. In the context of the given facts and circumstances, it is apparent that the de-facto complainant is the wife of petitioner No. 1. Admittedly the de-facto complainant is a house-wife and 'pardanashin'.
7. Admittedly the properties involved in the case under reference were the property of Smt. Abha Rani Bera. The dispute cropped up in the family over the distribution of share of the property between daughters and in order to avoid to give the share of the properties to the daughters, petitioners No. 1 obtained signatures of the de-facto complainant on some blank papers and thereafter prepared a power of attorney as well as the registered deed of gift. Thereafter the petitioner No. 1 also transferred those properties of the de-facto complainant in favour of son and daughter-in-law. Admittedly the de-facto complainant filed a civil suit and cancelled the said power of attorney. It is further case of the de-facto complainant that on the plea of compromise she was persuaded not to proceed with the civil case for a long period of time and subsequently she came to know that the properties have been transferred in the name of her son and daughter-in-law. Then and there the de-facto complainant lodged the first information report. Therefore, it is crystal clear from the factual aspect of the case that prima facie the lodgment of the first information report is not barred under Section 468 of the Code of Criminal Procedure.
8. The de-facto complainant has filed a civil case in order to clear the cloud in the title of the properties and she has filed this criminal case since the petitioner in collusion with each other have misappropriated the properties of the de-facto complainant, having dominion over the said properties. The investigation has already been culminated by filing of charge-sheet and after going through the materials on record I find no reason to interfere with the charge sheet at this stage.
9. Learned Advocate for the Petitioners has referred the following decisions reported in:
(i) AIR 1974 SC 298 Superintendent and Remembrancer of Legal Affairs, West Bengal v. Birendra Chandra Chakravarty.
(ii) 2000 Supreme Court Cases (Cri) 806 Amresh Tiwari v. Lata Prasad Dubey & Anr.
(iii) (2009) 1 C. Cr. LR (SC) 604V.Y Jose & Anr. v. State of Gujrat & Anr.
(iv) 2004 Supreme Court Cases (Cri) 39. Bharat Damodar Kale & Anr. v State of A.P.
(v) (2007) 3 Supreme Court Cases (Cri) 388 Japani Sahoo v. Chandra Sekhar Mohanty.
10. The decision reported in AIR 1974 SC 290 (Supra) related to a proceeding under Section 409 of the Indian Penal Code wherein the Hon'ble Supreme Court having regard to the facts and circumstances of the case under reference categorically observed that it was a dispute of essentially a civil in nature and that is why the question of fastening the parties under criminal liability did not arise.
11. In the decision reported in 2000 SCC (Cri) 806 (supra) enunciated the principle of law that during pendency of a case before the Civil Court no proceeding under Section 145 of the Code of Criminal Procedure could be proceeded with.
12. In the decision reported in (2009) 1 C. Cr LR (SC) 604 (supra) the self-same principle of law to the effect that no criminal case should be instituted where the nature of the dispute is purely civil in nature.
13. In the decision reported (2007) 2 SCC (Cri) 388 (supra) the Hon'ble Supreme Court has held that the date of filing of the First Information Report should be taken into consideration at the time of consideration of the proceedings under Section 468 of the Code of Criminal Procedure and if it is barred by the law of limitation the subsequent proceedings ought to be declared ultra vires.
14. In the decision reported in 2004 SCC (Cri) 39 (supra) the supreme Court has dealt with the time limit regarding filing of the compliant or institution of the prosecution for computing the period of limitation.
15. The civil cases have been filed by the de-facto complainant in order to get back her property and to remove the cloud of her title over such property. However it is equally true that the petitioner in collusion with each other got such documents executed by the de-facto complainant in order to grab the properties of the de-facto complainant and thereby they have converted the property of the de- facto complainant in their favour or in their names. Therefore, mere pendency of the civil proceedings will not absolve the petitioners of the charge under Section 406/120-B of the Indian Penal Code. The Hon'ble Supreme Court in a decision reported in (1999) 8 SCC 686( Trisuns Chemical Industry v. Rajesh Agarwal & Ors.) has observed that the Criminal prosecution cannot altogether be thwarted merely because the civil proceedings are also maintainable.
16. The allegations against the petitioners are that they had converted the properties of the de-facto complainant in their own names by compelling the de-facto complainant to execute some papers without being aware of the contents thereof. So long the properties are in the names of the petitioners, the offence of criminal breach of trust may safely be termed to be a continuing offence. Secondly the de-facto complainant was prevented from proceeding with the civil cases on the ground of compromise and thereby there was delay in filing the Fiirst Information Report. The said explanation has been properly incorporated in the First Information Report of the de-facto complainant. On that count also the First Information is saved by Section 473 if not Section 472 of the Code of Criminal Procedure.
17. In the premises set forth above, I find no reason to interfere with the charge-sheet submitted against the petitioners by invoking Section 482 of the Code of Criminal Procedure and accordingly the petition stands rejected.
18. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)