Subrata Chowdhury @ Subrata Chowdhuri vs State Of West Bengal & Anr.

UDAY KUMAR, J.: –

By this criminal revisional application filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner, Subrata Chowdhury @ Subrata Chowdhuri, has invoked the inherent and revisional jurisdiction of this Court seeking quashing of the entire proceeding of G.R. Case No. 6653 of 2022 arising out of Memari Police Station Case No. 834 of 2022 dated December 26, 2022, under Sections 420/406/34 of the Indian Penal Code, 1860, now pending before the 6^th Court of the Learned Judicial Magistrate, Purba Bardhaman, including the order of cognizance dated December 13, 2023 passed by the Learned Chief Judicial Magistrate, Purba Bardhaman.

The prosecution case stems from a written complaint lodged by the opposite party no. 2, Dharmadas Pan on December 26, 2022 (registered as Memari Police Station Case No. 834 of 2022 dated December 26, 2022), wherein it was alleged that on March 22, 1991, an agreement for sale was executed between the complainant and the accused persons, including the late father of the petitioner, Gopeswar Prasad Chowdhury. As per the said agreement, the complainant claimed to have paid a sum of Rs. 1,58,000/- in cash to the accused persons for purchasing landed property situated at Mouza Village Barapalasan under Police Station Memari, District Purba Bardhaman. The essence of the accusation is that despite receipt of the consideration money, the accused persons neither delivered possession nor executed a registered deed of conveyance in favour of the complainant, and subsequently transferred the subject property confidentially to third parties without notice, and thereafter denying the complainant his demand for return of the consideration amount paid in pursuance to the said agreement.

Upon receipt of the written complaint, the police initiated the aforementioned Memari P. S. Case No. 834 of 2022 and endorsed the same to the Investigating Officer for investigation. During the course of investigation, the Investigating Officer visited the place of occurrence, prepared a rough sketch map, recorded the statements of witnesses including Rabindranath Chowdhury, Ganesh Mondal and Nimai Chandra Mondal under Section 161 of the Code of Criminal Procedure, collected plot information reports from the office of the BL&LRO, Memari-II, Purba Bardhaman, and seized several money receipts bearing dates between 1992 and 1995 reflecting payments made to petitioner. The Investigating Officer also issued notices under Section 91 of the Cr.P.C. to the complainant and Section 41A of the Cr.P.C. to the accused persons. Upon completion of the investigation, the Investigating Officer submitted Charge Sheet No. 776 of 2023 on November 24, 2023 under Sections 420/406/34 of the Indian Penal Code against the petitioner and two other co-accused persons. Consequently, on December 13, 2023, the Learned Chief Judicial Magistrate, Purba Bardhaman, took cognizance of the offenses upon the police report, driving the petitioner to approach this Court by way of the instant revisional application to quash the aforesaid criminal proceeding.

Mr. Sudip Ghosh Chowdhury, learned counsel appearing on behalf of the petitioner, contended that the entire criminal proceeding is an abuse of the process of Court and deserves to be quashed as there is no prima facie material or essential ingredients to attract the penal provisions of Sections 406 and 420 of the Indian Penal Code. He further submitted that the dispute, if any, is purely civil in nature arising out of an alleged breach of an agreement for sale, for which adequate and efficacious alternative remedies under civil law are available to the complainant. Expanding on his submissions, Mr. Ghosh Chowdhury submitted that the petitioner was in no way personally associated with equity or the inception of the agreement or the initial money transactions, as it was his late father, Gopeswar Prasad Chowdhury, who entered into the agreement with the complainant for sale back in 1991. The complainant failed to comply with the stipulations within the agreed timeframe and failed to fulfill essential terms of the contract. He urged that criminal liability cannot be vicariously transferred to a son upon the demise of his father, and there exists no element of cheating since inception so as to rope the petitioner into a criminal prosecution. In support of his contentions, learned counsel, placing reliance upon the authoritative pronouncement of the Hon’ble Supreme Court in Murari Lal Gupta v. Gopi Singh, [(2005) 13 SCC 699], wherein it was held that merely because an agreement for sale was entered into which the petitioner failed to honour, a criminal prosecution under Section 420 or Section 406 of the Indian Penal Code cannot be maintained, prays for quashing of the impugned criminal proceeding.

Per contra, Mr. Kallol Mondal, learned Public Prosecutor appearing for the State, stoutly opposed the prayer for quashing and submitted that the petitioner was fully aware of the transaction, having put his signature upon the agreement and having received money under proper receipts issued subsequently. He argued that the signature of the petitioner's father on the agreement deed and the subsequent collection of money by the petitioner in lieu of execution of the sale, create a strong presumption of a dishonest intention right from the inception. The Investigating Officer has collected sufficient and clinching materials during investigation, including statements of independent witnesses under Section 161 of the Cr.P.C., the agreement deed, and contemporaneous money receipts, which unequivocally substantiate the allegations levelled by the complainant. Mr. Mondal further submitted that the matter is at a nascent pre-trial stage, and there is no illegality, irregularity, or impropriety in the order of cognizance passed by the learned Magistrate upon consideration of the police report. Hence, he prays for the outright dismissal of the revisional application for being devoid of merit.

Having heard the learned counsels for the contesting parties and upon a meticulous perusal of the materials on record, including the case diary, the charge sheet, and the annexures, I find that the following questions emerge for effective and proper disposal of this revision: Firstly, Whether the allegations made in the FIR and the materials collected during investigation, taken at their face value, disclose the essential ingredients of the offenses punishable under Sections 420 and 406 read with Section 34 of the Indian Penal Code against the petitioner? Secondly, Whether the dispute between the parties is essentially civil in character, cloaked in the garb of a criminal proceeding, and whether the continuation of the criminal proceeding constitutes an abuse of the process of Court warranting interference under Section 482 read with Section 401 of the Code of Criminal Procedure?

To resolve the aforesaid questions effectively, I deem it appropriate to evaluate the factual matrix, the applicable statutory parameters, and the relevant judicial precedents separately in respect of each question.

On a meticulous examination of the foundational facts, the written complaint lodged by Opposite Party No. 2, and the materials compiled in the Case Diary including the statements of witnesses, the 1991 agreement for sale, and the seized money receipts spanning from 1992 to 1995, I notice that the entire transaction originates from an agreement for sale executed on March 22, 1991.

The primary contracting party was undisputedly the petitioner's late father, Gopeswar Prasad Chowdhury. Although the prosecution places reliance on subsequent money receipts and the alleged failure to execute a conveyance deed or deliver possession in respect of the purchased property, the factual substratum reveals a purely civil, contractual arrangement concerning immovable property between the parties. I fail to trace any factual foundation or material in the case diary demonstrating that the petitioner, at the very inception of the transaction in 1991, harboured any fraudulent or dishonest intention to cheat the complainant.

It is elementary that to sustain a charge under Section 420 of the Indian Penal Code, the prosecution must establish the core ingredients of ‘cheating’ under Section 415 of the IPC namely, a deception practiced by the accused ab initio (from the very beginning), fraudulent or dishonest inducement of the victim to deliver property, and resultant wrongful loss to the victim coupled with wrongful gain to the accused. Without a dishonest intention to cheat at the time of making the promise or entering into the agreement in 1991, a subsequent breach of contract cannot metamorphose into a criminal offense of cheating. Similarly, to attract the offence of “criminal breach of trust” under Section 405/406 of the Indian Penal Code, a clear entrustment of property or dominion over property coupled with a subsequent dishonest misappropriation must be shown to be present. In transactions involving agreements for sale, the payment of advance money forms part of a reciprocal contractual obligation, which does not constitute “entrustment” in the strict sense of criminal law unless specific statutory parameters are satisfied.

The position of law in this regard is no longer res integra. In Murari Lal Gupta (supra), the Hon'ble Supreme Court categorically held that merely because an agreement for sale was entered into and a party failed to honour it subsequently, it cannot be said that the petitioner cheated the complainant/respondent, and prosecution under Section 420 or Section 406 of the Indian Penal Code cannot be maintained. Applying this ratio to the case at hand, the materials collected by the Investigating Officer, even if accepted in their entirety, it cannot be said that the essential ingredients required to constitute offenses under Sections 420 and 406 of the Indian Penal Code are satisfied inasmuch as inference of any fraudulent or dishonest inducement at the inception having been made to the complainant to part with the consideration amount are conspicuously missing against the petitioner. Consequently, first Question is answered in the negative.

Turning to the consideration of second question, looking closely at the timeline and the nature of the grievance, I find that the present factual matrix at best point toward a civil dispute regarding the non-fulfilment of a contractual obligation arising from an agreement executed over three decades ago in March 1991 whereas the criminal complaint was instituted in December 2022, marking an inordinate, unexplained delay of over 31 years. Furthermore, the original vendor, the petitioner's father, has passed away, and the petitioner is sought to be roped into criminal liability as a legal heir for a contractual default allegedly committed decades ago. The complainant’s appropriate and efficacious remedy lay in instituting a civil suit for specific performance of the contract or for recovery of money within the period of limitation. Instead, the criminal machinery was activated to bypass civil limitations and coerce the petitioner.

It is a well-established canon of criminal jurisprudence, reiterated by the Apex Court in a catena of decisions, that courts must guard against the misuse of criminal machinery for settling civil scores or enforcing civil liabilities. When a dispute is fundamentally civil in nature such as breach of contract, property disputes, or specific performance claims, the parties should not be permitted to convert civil disputes into criminal cases by applying a cloak of criminality. Section 482 of the Code of Criminal Procedure vests this Court with inherent power to prevent the abuse of the process of any court and to secure the ends of justice, a power that must be exercised unhesitatingly when a criminal proceeding is manifestly attended with mala fide or is instituted with an ulterior motive for settling civil scores.

The Hon'ble Supreme Court in its judgment passed in Indian Oil Corpn. v. NEPC India Ltd. & Ors., [(2006) 6 SCC 736], and subsequent rulings has repeatedly cautioned against the tendency to convert civil disputes into criminal prosecutions, noting that it puts an unnecessary burden on the criminal justice system and results in harassment of citizens. In the present case, evaluating the inordinate 31-year delay, the civil character of the transaction, and the attempt to pass on a civil contractual liability onto a legal heir through a criminal forum, it becomes clear to my mind that allowing G.R. Case No. 6653 of 2022 to proceed further against the petitioner would be a gross abuse of the process of Court. Therefore, Question No. 2 is answered in the affirmative, establishing that this is a fit case for invoking my revisional and inherent powers to quash the impugned proceedings.

In the light of the aforesaid discussions, findings, and the settled principles of law, I am of the unhesitating opinion that the continuation of the criminal proceeding against the petitioner lacks any legal leg to stand on and constitutes an unwarranted abuse of the process of the Court.

Accordingly, C.R.R. No. 2318 of 2024 stands allowed.

The entire criminal proceeding being G.R. Case No. 6653 of 2022 arising out of Memari Police Station Case No. 834 of 2022 dated December 26, 2022, under Sections 420/406/34 of the Indian Penal Code, now pending before the 6^th Court of the Learned Judicial Magistrate, Purba Bardhaman, along with the order of cognizance dated December 13, 2023 passed by the Learned Chief Judicial Magistrate, Purba Bardhaman, are hereby quashed qua the petitioner, Subrata Chowdhury @ Subrata Chowdhuri.

Interim order, if any, stands vacated.

Pending connected application (CRAN 1 of 2025) also stand disposed of accordingly.

There shall be no order as to costs.

Let a copy of this judgment along with the Trial Court Records be transmitted immediately to the Trial Court for information and necessary compliance.

Case diary, be returned to the Learned Counsel for the State.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.