The main legal point established in the judgment is the requirement for prima facie evidence of criminal intention at the inception of a transaction to support criminal charges of breach of trust and cheating.

JUDGMENT :

Subhasis Dasgupta, J.

1. This is an application under Section 482 of the Code of Criminal Procedure praying for quashing of a charge-sheet in connection with Airport Police Station Case No. 99 of 2008, now pending before the learned Chief Judicial Magistrate Barasat, North 24 Parganas.

2. On the basis of a complaint forwarded to police under Section 156(3) Cr. P.C, Airport Police station undertook investigation registering a case being No. 99 dated 28.6.08 and ultimately submitted charge-sheet under Section 406/420/120B IPC against the revisionist accused person.

3. Learned advocate for the revisionist submitted that the memorandum of understanding executed by way of an agreement for sale dated 22nd December, 2004 had been admittedly entered into between the parties for execution of a deed of sale of transfer of 11.46 acres, corresponding to 34 Bighas 8 Cottahs 9 Chittacks (approx) land against a valuable consideration, as shown in the agreement, subject to compliance of certain prerequisite conditions by the opposite party no.2. as embodied in the agreement itself, which the OP No.2 having failed to comply, the revisionists could not be fastened with a charge under Section 406/420/120B of the IPC. According to the terms of agreement, the OP No.2 was under obligation to take out a clearance from the Urban Land Ceiling Authorities in order to facilitate the proposed sale, which could not be procured due to apathy exhibited on the part of the OP No.2, rendering non-performance of the obligation with respect to the terms, required to be performed by revisionist, became in capable of being performed. The prerequisite obligations not having been duly discharged by OP No.2/complainant, the deed of conveyance, as proposed to be executed could not be made. The terms incorporated in the agreement for sale being contingent upon performance of such obligations of OP No.1/complainant inclusive of holding joint measurement of the land together with obtainment of Urban Land Ceiling clearance, the allegation of having committed criminal breach of trust together with cheating in consequence of a deep rooted conspiracy, according to revisionist, could not be made out form the averments contained in the complaint petition.

4. The further allegation of having misappropriated compensation, received from the government, for the acquisition of some of the land, agreed to be sold by executing a deed of conveyance, would not be sustainable in the given context of the case, particularly when the terms of the agreement dated 21.12.04 conspicuously authorised 'Vendor' to receive compensation for the land being acquired providing clause there for that "It is specifically agreed by and between the parties that in the case of any portion of the premises mentioned in the schedule- B is acquired by the government/local bodies, HDICO or any other agency either for the construction of road or for development of the area or for any public purposes, the Vendors will be entitled to entire compensation for such acquisition". The entire premises of the complainant case, if completely accepted on their face value, the required culpability, attributable to the acts of the revisionist, could not be ascertainable, without which the continuation of the proceeding would be an abuse of the process of Court, revisionists contended.

5. Learned lawyer for the revisionists also argued with all emphasis that as there was breach of the prerequisite obligations, committed by the OP No.2, in terms of the agreement already entered into between the parties, so the revisionists having understood the reluctant attitude on the part of the OP No.2 rescinded the memorandum of understanding by serving a valid notice on February 3, 2008 forwarding a cheque of Rs.60 lakh in due discharge of his bona fide, so as to get the agreement for sale rescinded and in spite of that a civil suit had already been instituted for specific performance of contract, alleging breach of terms of agreemen