Calcutta High Court (Appellete Side)
Siddharth Sethia & Ors vs State Of West Bengal & Anr on 22 March, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
22.03.2023 Ct.-42 Item No.26 CRR 3637 of 2022 Siddharth Sethia & Ors.
-Vs-
State Of West Bengal & Anr.
For the petitioners: Mr. Ayan Bhattacharya, Adv., Mr. Meghjit Mukherjee, Adv. For the defacto complainant:
Mr. Sourav Chatterjee. Adv., Mr. Pushan Kar, Adv., Mr. Sagnik Majumdar, Adv., Ms. Anaya Das, Adv., Mr. Pritam Kumar Das, Adv., Ms. Salmohi Ghosh, Adv.
On or about 29th April, 2014 a Memorandum of Understanding (MOU) was signed between the opposite party No.2/complainant and the petitioner No.1 for development and commercial exploitations of certain property situated in the vicinity of New Town, Kolkata.
As per the terms of the MOU the opposite party No.2 through his company M/s Harmony Vinimay Pvt. Ltd issued two cheques of Rs.51 lakhs and Rs.50 lakhs respectively in favour of M/s Intimate Promoters Pvt. Ltd. Subsequently, on 16th September, 2014 the opposite party No.2 through his company paid a further sum of Rs.1 crore in favour of M/s Intimate Promoters Pvt. Ltd. Petitioner No.2 and 3 are the Directors of the said M/s Intimate Promoters Pvt. Ltd. Subsequently, on or about 7th April, 2015 and 11th April, 2015 M/s Intimate Promoters Pvt. Ltd. had refunded the said sum of Rs.2.01 crores to the company of the opposite party No.2. On 13th March, 2020, in order to develop the said land as per proposal of HIDCO, a portion of the said land was exchanged between the HIDCO and M/s Intimate Promoters Pvt. Ltd.2
Subsequently, on 2nd March, 2021 the petitioners had sold the said land to third parties by a deed of conveyance.
Feeling aggrieved the petitioners filed a court complaint before the learned Chief Metropolitan Magistrate, Calcutta against the petitioners alleging, commission of offence under Sections 420/406 read with Sections 34 and 120B of the IPC. It is the grievance of the opposite party No.2 that keeping him and BKS Infraprojects LLP who was subsequently authorized by the opposite party No.2 to develop the said property, the accused sold the entire land to third parties and has not refunded the said sum of Rs.2.01 crores taken from the said BKS Infraprojects LLP, thereby misappropriated the said sum.
The petitioners have prayed for quashing of the aforesaid complaint case being CS/49908 of 2021 on the ground that the complainant failed and neglected to perform his part of obligation as per the MOU. The opposite party No.2/developer failed to obtain approved sanction plan of the project. It was agreed that the development work would commence within 6 months + 3 months grace period of HIDCO Road passing through or adjoining the properties under development but such development work has not been commenced as yet. Therefore, the opposite party No.2 sold out the said property in favour of third party.
Thus, it is submitted by the learned Advocate for the petitioner under the above facts the complaint case ought to be quashed.
The learned Advocate for the petitioner, in support of his contention, relies on a decision of the Hon'ble Supreme Court in Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699, it is contended by the learned Advocate for the petitioner that the opposite party No.2 failed to fulfill his part within the time specified in the MOU. There is absolutely no averment in the 3 complaint so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which it can be said that the petitioners had cheated the opposite party No.2.
Mr. Sourav Chatterjee, learned Advocate for the opposite party No.2, on the other hand submits that it is the petitioners who failed to comply with the terms of MOU. It was stipulated in the MOU that conversion shall be the responsibility of the owner - to be completed in six months. But conversion of the land was made only on 21st October, 2019. The petitioners have failed to take appropriate measures for construction of road up to the project which was their responsibility. Without discharging their obligation the petitioners transferred the property to a third person. Under such circumstances, culpable intention of the petitioners is easily presumed and in view of the factual background Section 482 of the Cr.P.C cannot be attracted. In support of his contention the learned Advocate for the opposite party No.2 refers to the decision of Kamlesh Kumari & Ors. vs. State of Uttar Pradesh & Anr. reported in (2015) 13 SCC 689. He also refers to another decision of a Coordinate Bench of this Court in the case of Sanjay Pandey & Anr. vs. State of West Bengal & Ors. reported in 2019 SCC OnLine Cal 3833.
In reply the learned Advocate for the petitioners refers to another decision of the Hon'ble Supreme Court in Nageshwar Prasad Singh @ Sinha vs. Narayan Singh & Anr. reported in (1998) 5 SCC 694.
I have heard the learned Advocates for the parties. The instant revision needs to be heard at length. Since the private opposite party has entered appearance, a copy of the application be served upon the learned Advocate for the private opposite party by 24th March, 2023.4
Since the instant revision arises out of a complaint case requirement of service of notice upon the State of West Bengal is dispensed with. The instant revision be listed under the heading specially fixed matter on 18th April, 2023.
The learned trial court shall not proceed with the case till 18th April, 2023.
(Bibek Chaudhuri, J.)