CRR No. 1005 of 2014. Case: Pradip Sengupta Vs The State of West Bengal. High Court of Calcutta (India)
| Case Number | CRR No. 1005 of 2014 |
| Counsel | For Appellant: Mr. Sekhar Kumar Basu and Mr. D. Basu, Advs. and For Respondents: Mr. Dipak Kumar Sengupta, Mr. Manjit Singh and Mr. Amarta Ghose for the State |
| Judges | R. K. Bag, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 156, 156(2), 156(3), 170, 173, 173(2), 220, 482; Constitution of India - Articles 226, 227; Indian Penal Code 1860, (IPC) - Sections 120B, 302, 34, 384, 406, 420, 498A |
| Judgement Date | June 26, 2014 |
| Court | High Court of Calcutta (India) |
Judgment:
R. K. Bag, J.
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This criminal revision is preferred by the petitioner for quashing the criminal proceeding being G. R. Case No. 1111 of 2013 arising out of Bidhannagar (South) Police Station Case No. 225 of 2013 dated 19.12.2013 under Sections 420/406/120B/34 of the Indian Penal Code and under added Section 384 of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas.
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The Opposite Party No. 2 - Sushil Kumar Agarwala is a Director of M. L. A. Developers and Constructions Pvt. Ltd., a company within the meaning of the Companies Act, 1956 and having its registered office at City Mall, Sevok Road, Siliguri-734001. The Opposite Party No. 2 filed one petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure for forwarding the said petition of complaint to the Inspector-in-charge of Bidhannagar (South) Police Station to treat the same as F.I.R. and to take up the investigation. Accordingly, Bidhannagar (South) Police Station Case No. 225 of 2013 dated 19.12.2013 was started. The contents of the petition of complaint treated as F.I.R. disclose that the company of the Opposite Party No. 2 was looking for a land in and around Siliguri for constructing a Five Star Hotel and in that connection sometimes in the month of January, 2011 the petitioner and one Madhav Das Fomra had come in contact with the Opposite Party No. 2 through brokers. The petitioner and Mr. Fomra represented that the Siliguri Jalpaiguri Development Authority granted lease of land measuring 5 acres appertaining to C. S. Plot No. 296(P), 297(P), 301(P), J. L. No. 81 of Mouza-Gourcharan, situated at Hotel Block, Sector Commercial of Himachal Vihar Complex, Matigara, Siliguri in favour of M/s. Lipika Enterprises under registered deed of lease dated 9th October, 2007 for a period of 99 years. The petitioner and Mr. Fomra further represented that by and under a memorandum of understanding dated 12th October, 2007 the said M/s. Lipika Enterprises represented by its Director - M. P. Agarwala had appointed the petitioner and Mr. Fomra to develop the said land and thereby to enjoy the usufruct and benefit arising out of the said property. The petitioner and Mr. Fomra also represented that by virtue of the said memorandum of understanding between M/s. Lipika Enterprises and others, the petitioner and Mr. Fomra acquired 62.5 % right over the said plot of land including the area on which construction is made and the benefit arising therefrom at a total consideration of Rs. 8 crore.
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It was decided in a meeting between the petitioner, Mr. Fomra, Mr. M. P. Agarwala and the Opposite Party No. 2 at the residence of the petitioner that the petitioner and Mr. Fomra would transfer their right accrued by virtue of memorandum of understanding dated 12th October, 2007 in favour of the company of the Opposite Party No. 2 and therefore two separate memorandum of understanding were executed-one between the company of the Opposite Party No. 2 and Mr. Fomra and another between the company of the Opposite Party No. 2 and the present petitioner in presence of M. P. Agarwala of M/s. Lipika Enterprises on 17.02.2011. The Opposite Party No. 2 made payment of Rs. 10,00,000/- in favour of the present petitioner and Rs. 10,00,000/- in favour of Mr. Fomra by issuing two pay orders at the time of execution of the said memorandum of understanding dated 17.02.2011. The Opposite Party No. 2 also handed over several account payee cheques in favour of Mr. Fomra, M.P. Agarwala and the petitioner, but those account payee cheques were taken back and Rs. 90,00,000/- was paid in cash to all of them in the residence of the petitioner. Thus, the Opposite Party No. 2 made total payment of Rs. 1,10,00,000/- in favour of Mr. Fomra, M.P. Agarwala and the present petitioner in the residence of the petitioner.
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It was recorded in the memorandum of understanding dated 17.02.2011 that the possession of the land is delivered in favour of the company of the Opposite Party No. 2, but actually the possession was not delivered at the time of execution of the memorandum of understanding. When the Opposite Party No. 2 raised objection with regard to incorporation of the fact of making delivery of possession of land in the memorandum of understanding, the Opposite Party No. 2 was made to believe that possession of the land would be delivered after obtaining necessary approval from Siliguri Jalpaiguri Development Authority. Mr. Fomra, M. P. Agarwala and the petitioner did not make delivery of possession of the land on various pretexts for more than one year. Ultimately, the Opposite Party No. 2 received copy of letter addressed to the Siliguri Jalpaiguri Development Authority by Mr. Fomra on 24.11.2012, wherefrom it is clear to the Opposite Party No. 2 that Mr. Fomra is wrongfully attempting to frustrate the entire transaction as Mr. Fomra did not mention about the fact of receiving Rs. 90,00,000/- in cash from the Opposite Party No. 2. The Opposite Party No. 2 also got a copy of letter dated 08.01.2013 from Siliguri Jalpaiguri Development Authority calling upon Mr. Fomra, Mr. Agarwala and the petitioner to explain the nature of the entire transaction and the reply of the said letter was given in due course. Thereafter, the Opposite Party No. 2 tried to contact Mr. Fomra, M. P. Agarwala and the present petitioner, but they denied the entire transaction. The Opposite Party No. 2 reported the entire incident to the Inspector-in-charge of Bidhannagar (South) Police Station on 28.11.2013 and the gist of the incident was recorded in the said police station vide G. D. Entry No. 2748. Mr. Fomra, M. P. Agarwala and the petitioner hatched a conspiracy between themselves with intention to deceive the Opposite Party No. 2 by making dishonest and fraudulent representation for making wrongful gain of Rs. 1,10,00,000/- from the Opposite Party No. 2. Accordingly, the criminal case was started against Mr. Fomra, M.P. Agarwala and the present petitioner on the allegation of committing offence under Sections 420/406/120B/34 of the Indian Penal Code on 19.12.2013 at Bidhannagar (South) Police Station.
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Mr. Sekhar Kumar Basu, Learned Senior Counsel appearing on behalf of the petitioner contends that the Opposite Party No. 2 started Matigara Police Station Case No. 173 of 2013 on 08.04.2013 against Mr. Fomra, M.P. Agarwala and the present petitioner in respect of the same offence for which the Opposite Party No. 2 again filed a petition of complaint before the Court of Learned Chief Judicial Magistrate, Barasat under Section 156(3) of the Code of Criminal Procedure with prayer to forward the same to the Inspector-in-charge of the Bidhannagar (South) Police Station for registration of F.I.R. and causing investigation. Mr. Basu submits that the Opposite Party No. 2 has suppressed the fact of starting Matigara Police Station Case No. 173 of 2013 against the present petitioner and others on 08.04.2013 at the time of filing the petition of complaint before the Court of Learned Chief Judicial Magistrate...
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