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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
MADHUMATI MITRA, J.
Sanjay Pandey & Another – Petitioners
Versus
The State of West Bengal & Another – Respondents
C.R.R. No. 2342 of 2018
Decided On : 02-12-2019
Cheating - Criminal Breach of Trust - Indian Penal Code - Section 415, Section 405 - The court discussed the offences of cheating and criminal breach of trust under the Indian Penal Code. The court analyzed the provisions of Section 415 and Section 405 of the Indian Penal Code and their applicability to the case. The court highlighted the elements of cheating and criminal breach of trust and their interpretations in the context of the facts presented. The court emphasized the fraudulent and dishonest intentions of the accused and their impact on the commission of the alleged offences.
Fact of the Case:
The petitioners, Assistant Vice Presidents of DLF Limited, filed an application under Section 482 of the Code of Criminal Procedure seeking to quash criminal proceedings initiated against them for alleged offences under Sections 406/418/420/120B of the Indian Penal Code. The case arose from a complaint filed by a company against the petitioners and others for alleged cheating and criminal breach of trust in a property transaction.
Finding of the Court:
The court found that the allegations in the First Information Report prima facie disclosed a case of cheating and criminal breach of trust. The court noted that the accused company's actions, including leasing out the property and enhancing common area maintenance charges during the subsistence of a sale agreement, indicated dishonest or fraudulent intentions to defraud the prospective buyer. The court emphasized that failure to honor the sale agreement did not ipso facto absolve the accused of cheating or criminal breach of trust.
Issues: The issues before the court included the applicability of the offences of cheating and criminal breach of trust to the facts of the case, the impact of civil remedies on criminal proceedings, and the existence of fraudulent or dishonest intentions on the part of the accused.
Ratio Decidendi: The court held that the allegations in the First Information Report disclosed a prima facie case for the commission of cognizable offences against the petitioners. The court emphasized that the nature and mode of deception varied from case to case and that each case had to be judged on its own merits. The court also clarified that filing a civil suit or a complaint case did not operate as a bar to continuing criminal proceedings based on the same facts.
Final Decision: The court dismissed the application under Section 482 of the Code of Criminal Procedure, finding that it was not a fit case to exercise discretion to quash the criminal proceedings. The court clarified that its observations should not be construed as an expression of any opinion regarding the merit of the criminal proceedings pending before the Learned Magistrate.
Judgment :
1. This is an application under Section 482 of the Code of Criminal Procedure filed by the petitioners praying for quashing of the criminal proceedings being G.R.Case No.2258 of 2018 arising out of New Town Police Station Case No.271 of 2018 dated 02.07.2018 under Sections 418/420/406/120B of the Indian Penal Code.
2. The present petitioner no.1 is the Assistant Vice President (Marketing) and the Petitioner no.2 is the Assistant Vice President (Coordination) of DLF Limited. The facts giving rise to the present application are as follows:
3. One Sri Sanjay Kumar Sultania, Director of Clarity Sales Pvt.Ltd. lodged one written complaint with New Town Police Station against DLF Ltd. Company and others including the present petitioners for commission of alleged offences punishable under Sections 406/418/420/120B of the Indian Penal Code.
4. On the basis of that written complaint New Town Police Station Case No.271 of 2018 dated 2nd July, 2018 was started against the present petitioners and others. From the contents of the said First Information Report, it appears that the complainant company is a private company incorporated under the provisions of Companies Act and DLF Limited is a company incorporated under the Companies Act and engaged into the business of development and construction of properties. In course of its business, the complainant company was in search of a suitable commercial space in New Town, Rajarhat area and in connection thereto the complainant company came to know about the properties in question from ARV Enclave Private Ltd., another company engaged in the similar line of business to that of the complainant company. The complainant company had submitted two applications both dated 12.09.2008 to the accused company along with two cheques bearing nos. 063263 and 063264 dated 12.09.2008 drawn on HDFC Bank Ltd. for Rs.5,00,000/- each as booking amount in respect of a commercial space measuring about 9620 sq.ft being commercial space no.8 and a commercial space measuring about 7905 sq.ft. being commercial space no.9 respectively, for supermarket/departmental store on the ground floor in "New Town Heights Plaza, DLF, Rajarhat", Action Area-III, Plot no.E/5, New Town, Rajarhat, Police Station. By letters bearing no.DLF/CS/AO6366/NRAN 008/1 and DLF/CS/AO6354/NRAN 009/1 dated 19.11.2008, the accused company informed that it had been allotted Anchor Retail Outlet No.008 on the ground floor of the New Town Height Plaza, DLF, Rajarhat which was numbered as NRAN 008 along with open parking space and Anchor Retail Outlet No.009 on the ground floor at the New Town Heights Plaza, DLF, Rajarhat, which was numbered as NRAN 009 along with open parking space no.NP0002 respectively and forwarded a receipt no.0002-1008 dated 15.10.2008 for Rs.5,00,000/- and a receipt no.0001-1008 dated 15.10.2008 for Rs.5,00,000/- respectively, paid by ARV Enclave Private Limited. ARV Enclave Private Limited made payment to the accused company and after receipt of payment the accused company allotted the said two units in favour of ARV Enclave Private Limited. Complainant company expressed its intention to purchase the said two units from ARV Enclave Private Limited and contacted the accused nos.3 and 4 at their Office at New Town with the representatives of ARV Enclave Private Ltd. Accused nos.3 and 4 advised the complainant company to directly enter into sale agreement with the said ARV Enclave Private Ltd. for purchase of the said two units. Accordingly, two sale agreements were entered into between ARV Enclave Private Limited and the complainant company.
5. By the said agreements ARV Enclave Private Limited agreed to transfer the said spaces to the complainant and complainant company also paid a sum of Rs.9,84,555/- as transfer charges to the accused company for both the units. By letter dated 06.08.2012 Spencer's Retail Ltd. informed the management of the complainant company that they had decided to open the Spencer's shop in the Unit no
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