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2014 Supreme(Cal) 519
IN THE HIGH COURT AT CALCUTTA
Subrata Talukdar, J.
Sushil Mohata & Ors.
Vs.
The State of West Bengal & Anr.
CRR 718 OF 2013 With CRR 3431 OF 2012
Decided On: 20.08.2014
Advocate Appeared:
For the petitioners: Sri Sekhar Basu, Learned Senior Counsel; Sri Sandipan Ganguly, Learned Counsel
For the opposite party no.2:Sri Avik Dutta, Learned Counsel; Sri Syed Julfikar Ali, Learned Advocate
Headnote:
CRIMINAL LAW - CHEATING - CLUB MEMBERSHIP FEES - SOUTH CITY PROJECT - VICARIOUS LIABILITY - DIRECTORS AND OFFICERS - SECTION 418/420/406/504 AND 506 OF THE INDIAN PENAL CODE - QUASHING OF CRIMINAL PROCEEDINGS - INHERENT POWERS OF THE HIGH COURT UNDER SECTION 482 CRPC - APPLICABILITY OF IRIDIUM'S CASE (2011(1) SCC 74) - ELEMENTS OF CRIMINAL LIABILITY - INTERPRETATION OF THERMAX'S CASE (2011(13) SCC 412) - PRINCIPLE OF VICARIOUS LIABILITY - JUDGMENTS OF THE HON'BLE APEX COURT IN A.K.SINGHANIA V. GUJARAT STATE FERTILIZER CO. LTD. & ANR.; MANNALAL CHAMARIA & ANR. V. STATE OF WEST BENGAL & ANR.; MANOJ JALAN V. STATE OF WEST BENGAL & ANR; HANUMAN MAL TATER & ANR. V. THE STATE OF WEST BENGAL & ANR. - SUBSTANCE OF ALLEGATIONS AGAINST EACH OF THE INDIVIDUAL PETITIONERS - QUASHING OF CHARGES UNDER SECTIONS 504 AND 506 IPC - APPLICABILITY OF RATIO OF IRIDIUM'S CASE.
Fact of the Case:
The petitioners, Directors/Officers of South City Projects (Kolkata) Limited, challenged the proceedings in Case no.C-2144 of 2012 and C-2794 of 2012 pending before the Learned 10th Judicial Magistrate at Alipore and the Learned 7th Judicial Magistrate, Alipore, respectively, as well as the orders passed in the said proceedings. The complainant, attracted by the Club facilities offered in South City Projects, agreed to purchase a high-priced residential unit and submitted an application along with an application money of Rs.1 lac. She paid 50 percent of the Club membership fees amounting to Rs.30,000 and the balance 50 percent of the Club membership fees also amounting to Rs.30,000 at the time of taking over possession of the residential unit. Despite full payment and taking possession of her allotted residential unit in the year 2008, the said flat was not registered till 20th September, 2010. The complainant alleged that in spite of the STC of sale embodied in the Deed of Declaration registered on 31st October, 2005 and specifically mentioned in para-2.8.1(a) thereof the Club membership is yet to be handed over to her. The petitioners moved this Court for quashing of the proceeding in the said complaint case no C-2144 of 2012 including the order dated 29th August, 2012 taking cognizance of the same.
Finding of the Court:
The Court held that the ratio of the judgment reported in 2011 (1) SCC 74 in the matter of Iridium India Telecom Limited Vs. Motorola Incorporated & Ors. shall apply in the facts and circumstances of the present case. The Court found substance in the submission of the OP2 that the existing area of land of 3.1 acres demarcated within the project area for construction of the independent Club segment was not intended to be touched for any other use. The Court also found substance in the argument of the OP2 that the new residential tower of 15 floors which has been constructed on the land earmarked for the Club by the name and style of ‘Cyprus’ was not part of the initial offer made to the prospective allottees. The Court held that the elements of criminal liability pertaining to the offence of cheating bear their prima facie imprint on the transaction entered into between the parties. The Court also held that the principle of vicarious liability cannot lie in respect of each of the petitioners and there are no specific averments in the petition of complaint against each of the Officers/Directors and, in the absence of such specific averments the petitioners cannot be held liable merely on the basis of the posts held by them in the accused no.1 Company. However, the Court held that on a consideration of the charges under Section 504 and 506 IPC the only allegation in the complaint in connection with the explicit act under said sections is against the accused no.9, who is not a petitioner to the present CRR 718 of 2013. In that view of the matter the charges under Section 504 and 506 IPC, which are essentially charges pertaining to intentional insult and provocation to breach of peace and criminal intimidation cannot be fastened on to each of the petitioners except the accused no.9.
Issues: Whether the ratio of the judgment reported in 2011 (1) SCC 74 in the matter of Iridium India Telecom Limited Vs. Motorola Incorporated & Ors. shall apply in the facts and circumstances of the present case. Whether the elements of criminal liability pertaining to the offence of cheating bear their prima facie imprint on the transaction entered into between the parties. Whether the principle of vicarious liability cannot lie in respect of each of the petitioners and there are no specific averments in the petition of complaint against each of the Officers/Directors and, in the absence of such specific averments the petitioners cannot be held liable merely on the basis of the posts held by them in the accused no.1 Company. Whether the charges under Section 504 and 506 IPC, which are essentially charges pertaining to intentional insult and provocation to breach of peace and criminal intimidation cannot be fastened on to each of the petitioners except the accused no.9.
Ratio Decidendi: The ratio of the judgment reported in 2011 (1) SCC 74 in the matter of Iridium India Telecom Limited Vs. Motorola Incorporated & Ors. shall apply in the facts and circumstances of the present case. The elements of criminal liability pertaining to the offence of cheating bear their prima facie imprint on the transaction entered into between the parties. The principle of vicarious liability cannot lie in respect of each of the petitioners and there are no specific averments in the petition of complaint against each of the Officers/Directors and, in the absence of such specific averments the petitioners cannot be held liable merely on the basis of the posts held by them in the accused no.1 Company. The charges under Section 504 and 506 IPC, which are essentially charges pertaining to intentional insult and provocation to breach of peace and criminal intimidation cannot be fastened on to each of the petitioners except the accused no.9.
Final Decision: CRR 718 of 2013 is disposed of. CRR 3431 of 2012 is also disposed of on the above terms and, on a parity of reasoning, the prayer for quashing of proceedings in complaint-case no.2794 of 2012 presently pending before the Learned 7th Judicial Magistrate, Alipore along with its connected orders, including the order dated 30th May, 2012, is refused, except to the extent indicated above. There will be, however, no order as to costs.
Subrata Talukdar, J.: By filing CRR 718 of 2013 and CRR 3431 of 2012 the petitioners challenge the proceedings in Case no.C-2144 of 2012 and C-2794 of 2012 presently pending respectively before the Learned 10th Judicial Magistrate at Alipore and the Learned 7th Judicial Magistrate, Alipore as also the orders passed in the said proceedings. With the consent of the parties both the matters are taken up for analogous hearing as they arise out of identical allegations connected to purchase of flats with facilities at South City Project in which the petitioners are the Officers/Directors.
CRR 718 of 2013:-
1) The petitioners claim that they are Directors/Officers of a Company by the name of South City Projects (Kolkata) Limited (hereinabove referred to as the said Company and/or South City Projects for short) having its registered office at 375, Prince Anwar Shah Road, Kolkata-700068. The petitioners no.2 and 3 further claim that they have ceased to become the Directors of the said Company with effect from 14th of May, 2012, i.e. prior to the filing of the complaint.
In support of their above contention the petitioner nos.2 and 3 rely upon documents marked Annexure P-1 of CRR 718 of 2013. The petitioners allege that the Opposite Party no.2 (for short the OP2) in CRR 718 of 2013 filed a complaint before the Learned Chief Judicial Magistrate, Alipore alleging commission of offences by the petitioners punishable under Sections 418/420/406/504 and 506 of the Indian Penal Code (for short the IPC) which was registered as Case no. C2144 of 2012.
In her complaint it is stated that the OP2 and her father-in-law came to learn from hand bills and/or souvenirs that flats are available in South City Projects. The flats were available to intending purchasers with facilities such as shopping mall, land scape garden, residents Club with all modern facilities, international school with football ground and a swimming pool etc. With respect to the Club, named and styled as South City Club the hand bills and/or souvenirs advertised as follows:-
“Promising a resort like experience, the South City Club has a perfect getaway for the entire family. Spread over 3 acres (180 cottahs), the multi-facility Club offers social and entertainment activities along with an air conditioned sport centre, guest room, banquet facilities for function. The Club will provide dedicated parking space for members and guests.
The South City Club will have the largest swimming pool within a residential complex in the city, along with that a children’s pool, sports pool and a leisure pool. It will also have tennis and squash courts, an indoor cricket arena, billiards and pool tables besides a card room. There will be a fine dining restaurant with banquet facilities, pub, lounge, health Club, spa and a crèche for toddlers.”
According to the complainant, attracted by the Club facilities offered she agreed to purchase a high priced residential unit in South City Projects and submitted an application in prescribed format along with an application money of Rs.1 lac which was duly acknowledged by the petitioners-accused through money receipt.
In May, 2004 allotment offer was issued to the complainant vide memo no.UN/1/0193. By the said allotment the complainant was allotted a residential unit in South City Projects as per Standard Terms and Conditions (for short STC) of sale. By the said allotment letter the complainant was asked to pay 50 percent of the Club membership fees of Rs.60,000, i.e. Rs. 30,000 along with first money instalment through 3 separate cheques amounting to Rs.6,45,812, Rs.30,000 and Rs.5,500 respectively.
The complainant duly paid 50 percent of the Club membership fees amounting to Rs.30,000 which was acknowledged by the petitioners-accused. She paid the balance 50 percent of the Club membership fees also amounting to Rs.30,000 at the time of taking over possession of the residential unit being allotted to her being no. I, Floor 13, Tower no.1 (Oak) having a
