A criminal proceeding under Section 420, Indian Penal Code is not maintainable if the dispute is purely civil in nature, the accused is not a public servant, there is no specific averment of dishonest intention on the part of the accused from the very beginning of the transaction, and the complaint is barred by the period of limitation.

KALIDAS MUKHERJEE, J.

1. THIS is an application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceedings being Baruipur P.S. Case No. 299/2008 dated 23.07.2008 under Section 420/409/506/34 of the Indian Penal Code now pending before the learned Judge, Special Court, 24 Parganas (South), Alipore being Special Case No. 4 of 2010.

2. THE prosecution case, in short, is that the accused no. 1 introduced himself as the proprietor of Jayanta Motors having its office at Baruipur. There was a verbal agreement between the accused and the complainant that the complainant would pay a sum of Rs. 94,227/- for the purchase of Campo Hand Tractor from the accused person and it was further agreed that the accused person on receipt of Rs.50,000/- would deliver the said Hand Tractor in favour of the complainant.

The complainant believed the accused and on good faith paid Rs.84,000/- during the period from 11.08.1997 to 19.01.1998 to the accused person as advance.

3. THE complainant is a retired person aged about 76 years and from his service benefit he paid the money relying on the accused. But even after the payment of the amount, the accused petitioner did not deliver the said Hand Tractor on repeated reminders verbally. Lastly, on 25.04.1998, the accused person handed over a hand note to the complainant that he will deliver the said tractor within 10.05.1998 and if any extra amount was paid by the complainant that will be returned at the time of delivery of the said tractor deducting Rs.94,227/-.

4. IN spite of such undertaking of the accused person he did not deliver the said hand tractor and the complainant several times went to the office of the accused person and having failed, sent a lawyer's letter to the accused person for getting the said tractor. But the letter returned with the remark "absent" on the different dates.

The complainant informed the O.C. of the matter and lodged G.D. Entry No. 977 dated 13.12.2004. The O.C. Baruipur Police Station issued a notice to solve the matter, but to no effect. The complainant at last requested the accused to return the money amounting to Rs.84,000/-, but the accused person threatened the complainant with dire consequence. It is alleged that the accused person fraudulently and dishonestly induced the complainant to make payment and committed offence of cheating and misappropriated the sum.

5. THE complaint was sent to the Police Station under Section 156(3), Cr.P.C. and on receipt of the complaint Baruipur P.S. Case No. 298 was started under Section 420/409/ 506/34 Indian Penal Code.

6. THE learned Counsel appearing for the petitioners submits that the dispute involved in this case is purely civil in nature between two private parties. It is contended that Section 409 I.P.C. is not maintainable, in as much as, the accused persons are neither public servants nor the amount involved is the Government Fund. It is submitted that the alleged transaction took place in the year 1997-1998 and the Civil Suit being barred by limitation, the instant proceedings under Section 420 Indian Penal Code is not maintainable.

The learned Counsel for the petitioners has referred to and cited the decisions reported in 1995 (I) CHN 264 [Paritosh Kumar Dubey Vs. Steel Authority of India Ltd.]; (2008) 2 CAL LT 190 (HC) [Krishna Kumar Bangur Vs. State of West Bengal and Anr.]; 1992 (2) CLJ 155 [V.Z. Job Vs. The State of West Bengal].

7. THE learned Counsel appearing for the State submits that the accused persons cannot be said to be the public servants and there is no element of Section 420, Indian Penal Code. It is also submitted that the dispute involved in the instant case between two private parties is essentially civil in nature.

8. FROM the complaint which was sent to the P.S. under Section 156(3), Cr.P.C. it is clear that there was an agreement between the complainant and the accused persons for the supply of one Campo Hand Tractor for the sum of Rs.94,227/- and in furtheran