AI Structured Summary
Not yet generated for this judgment
Judgment
Kanchan Chakraborty, J.—The C.R.R. 1310 of 2011 and C.R.R. 1331 of 2011 are disposed of by the common order below as both are arising out of same case being Ekbalpur police station case No. 115 dated 4.7.2005. Sk. Sakil filed the application CRR 1310 of 2011 challenging the order dated 28.3.2011 passed by the learned C.J.M., 24 Parganas (South), thereby rejecting the prayer for further investigation into the case. The C.R.R. 1331 of 2011 has been filed by Jujhar Singh @ Hazra Singh praying for quashing of the charge-sheet/proceeding so far as he is concerned.
Sk. Sakil, the petitioner of CRR 1310 of 2011 lodged one F.I.R. with Ekbalpur Police station on 5.7.2005 stating therein that in the year 2003 he sold his taxi and accumulated as sum of Rs. 5,30,000/- and was thinking of investing said money in some financial scheme. He asked Sanjay Dey, (opposite party No. 2) for some ideas regarding investment of that money. Sanjay afterwards and his wife Anusua (opposite party No. 3) as well parents of Sanjay told Sakil that they were facing financial crisis and wanted to borrow Rs. 5,30,000/- from him. They assured him that they would pay back the amount within a month and in order to convince him, they agreed to hand over license of their distributorship business and also promised to hand over peaceful vacant possession of a flat owned by Anusua Dey at premises No. 46, New Parnashree Pally School Road. They also agree to hand over the original deed in respect of the said flat. Sk. Sakil agreed to their request and on 20.1.2004 O.P. No. 2 Sanjay prepared a money receipt mentioning therein that he would hand over the license of the distributorship business as well as the flat at premises No. 46, New Parnashree Pally school road in favour Sk. Sakil in case he fails to repay the loan amount within a month. On that particular day i.e., 20.1.2004 the opposite party No. 2 received Rs. 530000/-from Sakil and handed over him the money receipt and original license of the distributorship business. When the date of repayment came and Sk. Sakil was unwilling to give Sanjay and Anusua further time, Sanjay and Anusua agreed to execute a deed of mortgage in respect of the flat mentioned above and prepared a memorandum on 14.2.2004, executed on 16.2.2004 to that effect but they failed to repay the amount within the time and on various pretexts, caused gross delay in handing over the flat. Sk. Sakil afterwards came to know that Anusua in connivance with her husband, father-in-law, mother-in-law sold the flat to Hazra Singh (petitioner in C.R.R. 1331 of 2011), son of late Jain Singh. So, the opposite party No. 2, 3 and Kalisadhan Dey and his wife committed offence of criminal conspiracy and cheating on and from 20.1.2004. On the basis of said F.I.R., the case was investigated into and charge-sheet dated 31.12.2007 was filed against Sanjay Dey and Anusua Dey u/s 120B/ 420 of IPC. Kali Sadhan Dey, the father of Sanjay Dey was not charge-sheeted. Sk. Sakil filed an application in the Court of learned C.J.M. praying for further investigation into the case. The learned C.J.M. allowed such prayer and directed to further investigate into the case. The Second report of investigation in from of charge-sheet dated 1.2.2011 was filed wherein the opposite party No. 2, 3 and 4 has been charge-sheeted for committing offence u/s 120B and 420 IPC. Sk. Sakil, being dissatisfied with the manner in which the further investigation was done, filed another application praying for directing the Deputy Commissioner of police, D.D., Kolkata to cause further investigation because the opposite party No. 2, 3 and 4 were exonerated from the charges u/s 468 and 471 of IPC although there was a clear case of forgery by all of them and that Hazra Singh has been shown as the same man as Juzhar Singh in the charge-sheet which was entirely wrong.
That prayer of further investigation was rejected by the learned C.J.M. on 28.3.2011 which has been challenged by Sk. Sakil in C.R.R. 1310 of 2011.
Hazra Singh the opposite party No. 4 in C.R.R. 1310 of 2011 prayed for quashing of the proceeding so far as he is concerned by filing the C.R.R. 1330 of 2011 on the ground that no case, prima facie, is made out against him u/s 420/ 120B IPC.
Mr. Gupta, learned Counsel on behalf of Sk. Sakil referring a decision of the Apex Court in Azija Begum Vs. State of Maharashtra and Another, , contended that fair and proper investigation is always conductive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. Every citizen has a right to get his or her complaint properly investigated. Equal protection of law is covered by the guarantee under Article 14 of Constitution. These are very vital issue in a democratic set up which must be taken care of by Court.
He contended that while the case was further investigated it was found that Anusua Dey sold the flat in question in favour of Hazra Sk. by executing a deed of sale wherein Jujhar Singh signed as purchaser. Jujhar Singh is a separate entity and Hazra Singh in connivance with Sanjay Dey and Anusua Dey forged that document in order to misappropriate the money taken by Sanjay Dey from Sk. Sakil and to deprived him of taking possession of flat at Parnashree Pally Road. Although the case was further investigated, the I.O. did not seize the original deed for verification of signature of Jujhar Singh and Hazra Singh in order to come to a conclusion that both are the same person. He also contended that when there was a clear case of forgery, the I.O. with mala fide intention, omitted the section 468 and 471 of IPC in the charge-sheet. Mr. Gupta contended that the learned C.J.M. was entirely misconceived in rejecting the prayer of further investigation and discussed about the right of a mortgagee unnecessarily.
Heard Mr. Sandipan Ganguly, learned Counsel appearing for the Hazra Singh @ Jujhar Singh he contended that whether Hazra Singh @ Jujhar Singh purchased the mortgaged property or not from Anusua Dey cannot be a question required to be decided by the Court and subject matter of investigation into the case. He contended that purchase of mortgage property per se does not give rise of any offence. In the event, the said mortgage was invoked; the purchaser is liable to face the consequences thereof as if no sale had taken place. Therefore, the I.O. was correct in not filing charge-sheet 468 and 471 of the IPC against Hazra Singh @ Jujhar Singh as well as other accused persons. He contended that no case is made out against Hazra Singh@ Jujhar Singh. He was a bona fide purchaser against money and is in possession of the flat. He was no way connected with the loan transaction between Sanjay Dey and Sk. Sakil. He stated further that the learned C.J.M. was absolutely right in not directing any further investigation into the case.
Mr. Binoy Kumar Panda, learned Counsel appearing on behalf of the State has taken side of Mr. Ganguly and contended that there was no case against Hazra Singh or Jujhar Singh or that Hazra Singh and Jujhar Singh are the same person and that no case of forgery has been made out.
I have carefully gone through all the charge-sheets specially the FIR and the statements recorded by the I.O. in course of the investigation, further investigation and re-further investigation. It is clear therefrom that the flat at Pannasri Pally Road belonging to Anusua Dey was sold out to Hazra Singh by execution a deed of convenience. It appears also that the investigating officer upon thorough investigation came to know that Hazra Singh and Jujhar Singh are the same man. It is also found that nick name of Jujhar Singh was Hazra Singh. That property was kept on mortgage by Sanjay Dey and Anusua Dey against the loan taken by Sanjay Dey from Sk. Sakil. Jujhar Singh/Hazra Singh was not in the picture when the loan transaction was made and the property was mortgaged. He not having any participation in any such inducement by Sanjay Dey and Anusua Dey, cannot be said to have committed any offence of cheating. The FIR makes it abundantly clear that no aspersion and allegation is made against him. It is nowhere mentioned in the FIR that Jujhar Singh/Hazra Singh was a party to conspiracy of cheating. In his statement before police, Hazra Singh/Jujhar Singh made it clear that although his name Jujhar Singh but he is known as Hazra Singh and he used to sign in the name of Hazra Singh. In support of his such statement, he produced many documents before the I.O. which has been mentioned clearly in the charge-sheet. Apparently, there is no prima facie case made out against Jujhar/Hazra Singh. He purchased a mortgage property and for that only he cannot be connected with the alleged crime committed by Sanjay, Dey and Anusua Dey. He is possessing that flat after purchasing the same. He has to face the consequence if the mortgagee wants to invoke the mortgage. This will be purely a civil dispute wherein Sk. Sakil, Sanjay Dey, Anusua Dey, Jujhar/Hazra Singh would be parties. It is true that High Court should not assume the role of a Trial Court and embark upon an enquiry as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence when exercising power u/s 482 Cr.P.C. If on consideration of the allegation it appears that the ingredients of any offence are disclosed, the prosecution cannot be quashed. But where it appears to be contrary, interference of High Court would be justified. Accordingly, I am of view that Jujhar Singh/Hazra Singh is not required to face the trial for committing any offence under sections 420/ 468/ 472/ 120B IPC. The proceeding so far Jujhar Singh/Hazra Singh is concerned is accordingly quashed. The C.R.R. 1331 of 2011 is allowed.
As far as question of rejection of further investigation is concerned, I find that there is no denial to the fact that Anusua De sold the flat in favour of Hazra/Jujhar Singh. So, it was not required for the I.O. to collect the original deed since the fact is admitted. It is also clear that Hazra/Jujhar Singh was not in the picture when alleged inducement was made by Sanjoy De and subsequently be Anusua De. Therefore, he cannot be liable to face trial for committing offence u/s 420/ 120B IPC. Whether the deed was a forged one or genuine one is not a question to decide by Court because Jujhar/Hazra Singh already admitted in his Revisional application that he being same and one person purchased the flat by that deed wherein he signed as Hazra Singh(nickname) although Jujhar Singh is shown as the. Purchaser. He cannot deny the fact that it was his signature in the deed. The I.O. himself found that Jujhar Singh and Hazra Singh are same and one man and that he was the purchaser of the mortgaged property. That being so, there remains no case of forgery. It might be a sham transaction but the deed was not forged one. It is open to Sk. Sakil to challenge the genuinity of the transaction and may also try for invoking the mortgage by taking recourse of Civil Suit. Therefore, I find that there was no need to reinvestigate into the case and the learned C.J.M. was justified to reject the prayer. The order, therefore, is not required to be upset. Accordingly, the C.R.R. 1310 of 2011 stands dismissed.
Learned Court, however, be proceeded with the case against Sanjay Dey and Anusua De. Both the C.R.R. 1310 of 2011 and C.R.R. 1331 of 2011 are disposed of accordingly.