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2019 Supreme(Cal) 719
IN THE HIGH COURT AT CALCUTTA
Shivakant Prasad, J.
Rajendra Kumar Goyal - Appellant
Vs.
The State of West Bengal & Ors. - Respondent
CRR 1159 of 2016
Decided On : 28-03-2019
For the Petitioner: Mr. Avik Dutta, Syed Julfikar Ali
For the O.P. : Mr. Sabyasachi Banerjee, Mr. Aafreen Panveer
The main legal point established in the judgment is that the dispute pertained to contractual obligations and was a civil matter, not warranting criminal prosecution for cheating.
Headnote:
Criminal Procedure Code - Application under Section 397/401 read with Section 482 - Summary of Acts and Sections: Sections 397/401, 482 of the Code of Criminal Procedure 1972 - The court discussed the provisions of Sections 227, 228, and 245 of the Cr.P.C. and their applicability in the case. The court also referred to legal principles related to framing of charges and discharge of accused persons.
Fact of the Case:
The petitioner applied for membership and facilities at South City Club based on an advertisement promising resort-like experiences. The club facilities were not provided as promised, leading to a complaint case against the managing director of South City Project (Kolkata) Ltd. and South City Recreation Private Ltd. The accused persons were discharged under Section 245(1) read with Section 245(2) of the Code.
Finding of the Court:
The court found that the petitioner's claim was barred by the principle of acquiescence and waiver, as evidenced by the execution and registration of deeds of conveyance waiving the claim in respect of the club issue. The court also held that the dispute pertained to contractual obligations and was a civil matter, not warranting criminal prosecution for cheating.
Issues: The issues included the applicability of Sections 227, 228, and 245 of the Cr.P.C., the validity of the resolution passed by the General Body of Apartment Owners’ Association, and the bar on the petitioner's claim by the principle of acquiescence and waiver.
Ratio Decidendi: The court held that the accused did not have fraudulent or dishonest intention from the beginning, and the dispute was a civil matter. The court also emphasized that the failure to keep a promise subsequently cannot be presumed as an act leading to cheating.
Final Decision: The revisional application was dismissed, and the court found the order passed by the learned Judicial Magistrate Alipore to be meritorious.
JUDGMENT :
Shivakant Prasad, J.
1. This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure 1972. Petitioner has prayed for setting aside of the Order dated 18.02.2016 passed by the learned Judicial Magistrate, (1st Class), 4th Court Alipore, South 24 Parganas in connection with complaint Case No. 2794 of 2012.
2. Petitioner’s case in brief is that being attracted by the advertisement in reference to the description of the South City Club in the Souvenir promising a resort like experience, the South City Club is a perfect get away for the entire family, spread over 3 acres (180 Cottahs), the multi facility club offering, social and entertainment activities, along with an air conditional sports centre, guest room, banquet facilities for function with parking space for members and guests and being eager to stay in an upscale complex with the advertised club facilities and landscape garden bigger than the Eden garden, the petitioner submitted an application in the prescribed form along with the application money of Rs. 1,00,000/- paid on 29.01.2004 duly acknowledged by the concerned authority of the South City Project (Kolkata) Ltd. through money receipt being nos. 672 & 673.
3. An allotment offer being Memo No. UN/1/0194 dated May 7, 2004 was issued in the name of the petitioner and his wife, namely, Chanda Goyal and by that Memo the petitioner and his wife were informed by the authorized signatory of South City Projects (Kolkata) Ltd subject to Standard Terms and Conditions (STC) of sale” regarding description of the unit allotted, price, extras and deposits, nomination and balance payable were explained in details vide allotment offer letter dated 7th May, 2004 by which the petitioner and his wife were asked to pay 50% club membership fees of Rs. 60,000/- i.e. Rs. 30,000/-along with first installment money through three separate cheques amounting to Rs. 5,42,407/-, Rs. 30,000/- and Rs. 5,500/- and the petitioner paid advance Club Membership Fees of Rs. 30,000/- through Cheque No. 696321 dated 06.6.2004 which was duly acknowledged on behalf of the South City Project (Kolkata) Ltd. through Memo Receipt No. C/T-1/60 dated 23.6.2004.
4. It is submitted that the private opposite parties were duty bound to construct the South City Club on the portion of land earmarked for such City Club on the land of 180 Cottahs and to deliver the facilities of said South City Club by providing its membership and for creating landscaped garden bigger than the Eden garden of Kolkata on the land of 90 Cottahs but the opposite parties have not constructed the South City Club and failed to comply with the promise made in the souvenir depriving the petitioner and his wife of the facilities of South City Club since long period of time as a result they have suffered monetary loss and harassment.
5. The petitioner after full and final payment of Club Membership Fees in the year 2006 and 2008 and after taking possession of the Unit/Flat waited for the enjoyment of South City Club till December 2011 but the opposite parties neither provided the Club Membership nor arranged for use of South City Club and as such your petitioner several occasion demanded and requested the private opposite parties to provide Club Membership as well as recreational facilities of full fledged South City Club but each and every occasion it was orally expressed that the Club facilities will be provided within short period of time but in vain.
6. Petitioner informed the matter by a written complain to the Officer-in-charge of Jadavpur Police Station on 25.4.2012 but no action was taken by the concerned Police Officer. As such finding no other alternative a complaint case being no. C/2793 of 2012 was filed under Sections 418/420/406/504/506 of Indian Penal Code against the Managing Director of South City Project (Kolkata) Ltd. and South City Recreation Private Ltd. in the Court of the learned Chief Judicial Magistrate, South 24 Parganas, Alipore a
