Calcutta High Court (Appellete Side)
Deb Kr. Bose vs Unknown on 15 March, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1 15.03.2019
Item no.54 Ct. No.22 CHC C.R.R. No.3612 of 2015 In Re: An application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure.
And In the matter of:-
Deb Kr. Bose ... Petitioner Mr. Sandipan Ganguly, Sr. Advocate Mr. Dipanjan Dutt ...for the petitioner This is an application for quashing of a proceeding in connection with C.G.R. Case No.3160 of 2010 pending in the Court of learned Judicial Magistrate, 6th Court, Alipore, South 24 Parganas arising out of Lake Police Station Case No.220/2010 dated 7.9.2010 under Section 420 of the Indian Penal Code. Learned advocate for the revisionist submits that for mere failure to refund the money in terms of the agreement will not itself be sufficient to invite a prosecution under Section 420 of the I.P.C. The salient features involved in this case may be mentioned here in order to approach the issue at the moment. The revisionist happens to be the owner of the flat, which he intended to sell to 2 de-facto complainant against of valuable consideration. An agreement was entered into between them on 19th of July, 2010, agreeing to the effect that in the event of cancellation of agreement for any unforeseen reasons, the purchaser-de-facto complainant within the specified date shall refund advance within 30 days of such intimation in writing by purchaser after deducting 25% of the token advance paid initially.
In terms of the agreement, the de-facto complainant issued two cheques of Rs.16 Lakh each together with a demand draft bearing No.034738 dated 24th July, 2010 for Rs. 64,81,831/-. Subsequently, the de-facto complainant expressed her unwillingness regarding purchase of the flat from the revisionist and the same was accepted by the revisionist. The husband of the defacto-complainant intimated the banker with request to stop payment and as a result thereof the relevant demand draft was cancelled. The revisionist subsequently, offered to return two cheques received earlier deducting Rs.4 Lakhs in terms of the agreement, but the same could not be matured for the reasons best known to the de facto complainant. Over the self-same issue the civil suit was filed by defacto/proposed purchaser of flat but ultimately the said suit was dismissed for default. This is all about the transactions entered into between the parties. 3 The attention of the Court is drawn to a decision by the learned advocate for the revisionist, reported in (2006) 2 Supreme Court Cases (Cri) 430 wherein and whereunder it was decided that mere failure to honour the agreement cannot be said to have constituted cheating, as contended. In the given set of facts, the Court feels inclined to interfere with, though the prayer for discharge was rejected by the court below by order dated 3rd September, 2015 passed by learned Judicial Magistrate, 6th Court, Alipore.
Let there be an order directing stay of all further proceedings, now pending before the learned Judicial Magistrate, 6th Court, Alipore in connection with C.G.R. Case No.3160/2010, for a period of four weeks from hence.
The petitioner is further directed to serve copy of the application afresh upon opposite party including the State of West Bengal intimating that the matter will appear in the list three weeks hence under the heading "Contested Application".
(Subhasis Dasgupta, J.)