Calcutta High Court (Appellete Side)
Subhra Majumdar vs The State & Anr on 27 September, 2019
Author: Jay Sengupta
Bench: Jay Sengupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 2025 of 2017
With
C.R.A.N. 4395 of 2017
Subhra Majumdar
Versus
The State & anr.
For the petitioner : Mr. Uday Sankar Chattopadhyay
Mr. Soumen Bandopadhyay
Mr. Pranoy Basak
..... Advocates
For the Opposite party No. 2 : Mr. Snehotosh Majumdar
Mr. Amar Nath Ghosh
Mr. Sattwik Majumdar
Mr. Urmi Sengupta
......Advocates
For the State : Mr. Rana Mukherjee
Mr. Trina Mitra
Heard lastly on : 25.07.2019
Judgment on : 27.09.2019
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Jay Sengupta, J.:
1. This is an application filed by the petitioner challenging the order dated 13.04.2017 passed by the Learned Additional Sessions Judge, Fast Track Court, Serampore, Hooghly in Criminal Motion No. 86/2013, thereby affirming the order dated 22.05.2012 passed by the Learned Judicial Magistrate, 4th Court, Serampore, Hooghly in GR Case No. 628/2006 corresponding to Serampore Police Station Case No. 177/2006 dated 21.08.2006 under Sections 406, 420 read with Section 120B of the Penal Code and Sections 13A, 13B and 14 of the West Bengal Building (Regulation of Promotion of Construction & Transfer by Promoters) Act, by which the prayer for discharge of the petitioner was rejected.
2. In 2006 the present de facto complainant/opposite party no. 2 filed an application under Section 156 (3) of the Code praying for registration of a First Information Report and investigation into the offences committed by the present petitioner and six others under Sections 406, 420 and 120B of the Penal Code and Sections 13A, 13B and 14 of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act. In the said petition of complaint, the opposite party no. 2, among other things, alleged that she had a shop room in the ground floor of the premises being 527, GT Road, Ballavpore, Police Station Serampore, District Hooghly (the said shop room, for short); the accused nos. 1 to 3 were her landlords while the accused nos. 4, 5 and 6 (the present petitioner) were the partners of one 3 M/s Fairdeal Constructions who were developers, promoters of property in the locality; the opposite party no. 2 and all the accused including the present petitioner entered into an agreement to demolish the existing building in which the said shop room was situated and in its place to construct a multi-storied building; the opposite party no. 2 was to be given a new shop room measuring 300 sq.ft. along with proportionate share in the common facilities and amenities in the proposed new building; induced by the promises given by the accused, she vacated her shop room; it was also agreed that the owner shall be liable to pay a sum of Rs. 5000/- per month if the said shop room was not made ready within four months from the date of such agreement; although construction work for the new building was completed in the year 2004, yet the accused did not deliver the possession of the said new shop room to the de facto complainant; the accused did not even honour their promise to pay Rs. 1,80,000/- that they agreed to subsequently in lieu of non-delivery of possession of the said shop room.
3. Pursuant to a direction passed under Sections 156 (3) of the Code, the instant First Information Report was registered on 23.08.2006. After completion of investigation, the Investigating Agency submitted a charge sheet against all the accused including the present petitioner on 04.11.2006. On 22.05.2012, the Learned Judicial Magistrate, 4th Court, Serampore, Hooghly was pleased to reject the petitioner's prayer for discharge from the case. The petitioner challenged the said order in revision before the Learned Sessions Court, but the same was turned down by the 4 impugned order passed by the Learned Additional Sessions Judge, Fast Track Court, Serampore, Hooghly in Criminal Motion No. 86/2013.
4. Learned Counsel appearing on behalf of the petitioner submitted as follows. No prima facie case was made out so far as the present petitioner was concerned. Although the de facto complainant was enjoying a shop room as a tenant, by the agreement dated 15.07.2002 she was to be given a shop room as an owner. However, paragraph 3 of the said agreement provided that the owner shall deliver possession of the said shop room to the tenant. Therefore, if at all, it was the owner who was responsible for non- delivery of the shop room and not the present petitioner who was merely a partner of the firm that had developed the property. That apart, subsequently an anticipatory bail was obtained by some accused upon a compromise effected between the private parties. Since an arbitration clause was also there in the said agreement, the de facto complainant ought not to have resorted to initiating a criminal proceeding in this regard. Moreover, a civil suit was pending in respect of the property in question.
5. Learned Advocate appearing on behalf of the State submitted as follows. Although it appears that some kind of compromise was arrived at at the time when the anticipatory bail application was moved on behalf of the accused, yet from a proper reading of the statements of witnesses and other materials on record, as was available in the case diary, a clear case of initial deception was made out. The accused had no intention to deliver the 5 property to the de facto complainant and had dishonestly induced her to part with possession of the said shop room.
6. Learned Counsel appearing on behalf of the de facto complainant/opposite party no. 2 submitted as follows. A prima facie case was clearly made out even against the present petitioner as would be evident from a plain reading of the First Information Report. First, the subsequent compromise to receive a payment of Rs. 4,00,000/- for granting consent to the accused obtaining anticipatory bail, was obtained by using undue influence. Even such compromise was not honoured by the accused. Referring to the cross-examination of the present petitioner in T.S. No. 32/2007 as annexed in the affidavit in opposition filed on behalf of the opposite party no. 2, it was submitted that there was a clear reflection about what was the nature of compromise that was arrived at. It also showed that there was no distinction between the owners and the developers so far as the liability to pay the said sum of Rs. 4,00,000/- to the opposite party no. 2 was concerned. Neither the pendency of a civil suit nor the existence of an arbitration clause in the agreement in question can act as a bar to the institution of a criminal case.
7. I heard the submissions of the Learned Advocates appearing on behalf of the petitioner, the State and the opposite party no. 2 and perused the revision petition, the affidavits filed in the case as also a copy of the case diary presented by the Learned Counsel for the State.
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8. In the present case of the accused including the present petitioner first entered into an agreement with the opposite party no. 2/de facto complainant that they would give her a new shop room within four months of the execution of the agreement if she vacated her tenanted shop room in the building in question. It is true that in the agreement it was mentioned that the said shop room would be redelivered to the de facto complainant by the land owners. However, this was agreed to by all the accused and upon such inducement the de facto complainant parted with the possession of her tenanted shop room. It is a disputed question of fact whether the developers were in conspiracy with the land owners or not and as such, cannot be decided before trial.
9. Subsequently, the accused including the petitioner agreed to pay a sum of Rs. 4,00,000/- to the de facto complainant in lieu of non-delivery of possession of a new shop room as a condition for giving consent to the grant of anticipatory bail to the accused. In spite of this, the accused including the petitioner did not even pay the sum as agreed to the de facto complainant. From the subsequent conduct of the accused, it can fairly be prima facie inferred that the accused has the necessary mens rea to defraud the de facto complainant from the very inception.
10. In view of the ratio laid down in Trisuns Chemical Industry vs. Rajesh Agarwal, (1999) 8 SCC 686, the mere existence of an arbitration clause in an agreement which becomes the subject matter of a criminal case of cheating 7 or criminal breach of trust, cannot act as a bar to the initiation of a criminal prosecution.
11. In most cases, cheating and criminal breach of trust arise out of commercial transactions. A particular set of facts can both amount to a civil wrong as well as a criminal offence. On this reliance may be placed on the ratio laid down by the Hon'ble Apex Court in Rajesh Bajaj vs. State (NCT of Delhi), (1999) 3 SCC 259.
12. In the light of the above discussions, I find that a prima facie case is made out even against the present petitioner as would be evident from a plain reading of the First Information Report, the charge-sheet and the other materials available on record.
13. In view of the above, I do not find any merit in the present revisional application. Accordingly, the same is dismissed.
14. However, there shall be no order as to cost.
15. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J)