The Court held that the essential ingredients of the offences alleged against the petitioners are not present. The Court also noted that the dispute between the parties is essentially civil in nature and that there is no criminal element prima facie present in the case. The Court concluded that the proceedings against the petitioners should be quashed to prevent abuse of process.

JUDGMENT :

(Shampa Dutt (Paul), J.) :

1. The present revision has been preferred praying for quashing of the proceeding pending in connection with complaint case no. A.C 3074/2019 now pending before the court of the learned 7th Judicial Magistrate at Alipore, South 24 Parganas and all orders passed in connection therewith including order dated 29.05.2019 whereby the learned Additional Chief Metropolitan Magistrate, Alipore, South 24 Parganas was pleased to take cognizance of the offences alleged in the petition of complaint filed by the opposite party no.2 and order dated 03.08.2019 whereby the learned Judicial Magistrate, 7th Court, Alipore, South 24 Parganas was pleased to issue process against the petitioners herein under Sections 420/406/34 of the Indian Penal Code.

2. The petitioner's case is that a complaint under Section 200 of the Code of Criminal Procedure was preferred by the opposite party no.2 before the court of the learned Additional Chief Judicial Magistrate at Alipore, South 24 Parganas, inter alia, alleging the commission of offences under Sections 406/420/34 of the Indian Penal Code against the petitioners and another co-accused person, namely, Amiya Bhowmick registered as complaint case no. A.C-3074 of 2019.

3. The allegations as leveled in the said complaint are inter alia, to the effect that:-

“It was alleged that the petitioners herein were the owners of a landed property measuring more or less 4 cottahs situated at New Town, Rajarhat, being plot No.CE/1/B/68 AC1 and were in search of a developer for the construction of a multi storied building on the said land. It was alleged that the co-accused person namely Amiya Bhowmick acted as a mediator and introduced the petitioners with the opposite party no.2. It was alleged that a memorandum of understanding was signed by and between the parties. It was also alleged that the opposite party no.2 also executed certain additional jobs which were not included in the Memorandum of Understanding dated 26.03.2012. It has been specifically alleged by the opposite party no.2 in paragraph 10 of the petition of complaint that arrear bills amounting to Rs.18,50,000/-, was allegedly not paid by the petitioners herein.”

4. It is submitted that, on a bare reading of the petition of complaint, it becomes apparent that the opposite party no.2, completely suppressed the aspect of payments made to him by the petitioners herein.

5. The learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas was pleased to take cognizance.

6. The learned 7th Judicial Magistrate, ignoring the settled principles of law and ignoring the dubious conduct of the opposite party no.2, vide order dated 03.08.2019 was pleased to issue summons against the petitioners herein and co accused Amiyo Bhowmick under Sections 406/420/34 of the Indian Penal Code.

7. Mr. Rajdeep Majumder, learned counsel for the petitioners has submitted that the petitioners are innocent and are in no way connected with any offence far less the offences alleged herein.

8. The petitioners state that the facts which are germane for effective adjudication are as follows:-

a) That the petitioners had an obligation to make payment to Finix Construction only in accordance to the progress of the work. That all throughout the opposite party no.2 resorted to dishonest and unfair practice to squeeze money from the petitioners herein. The opposite party no.2 deprived and cheated his partner Biman Roy. Furthermore said Biman Ray privately complained to the petitioners as to how he had been cheated from time to time in the matter of payment by the opposite party no.2.

b) There were several other aspects of the memorandum of understanding which was not complied by the opposite party no.2.

c) In spite of acting contrary to the requirements stipulated in the memorandum of understanding, the opposite party no.2 went on unabashedly to extort money from the petitioners by suspending work for a long spell of time. It was the petitioners the