Mere breach of contract without initial fraudulent intent does not constitute an offence under IPC sections 406 or 420.

JUDGMENT :

Bibhas Ranjan De, J.

1. Both the CRR application numbers being CRR 12 of 2024 & CRR 14 of 2024 having identical facts and contentious issues are hereby decided via this common judgment.

2. This case was put into motion by a written complaint made by the opposite party no. 2 herein/complainant on 22.06.2023 with the officer in-charge of the Hare Street Police Station which gave rise to the instant case in the year 2023 being Hare Street Police Station Case no. 224 of 2023 dated 01.08.2023 under Sections 406 /420/120B of the INDIAN PENAL CODE (for short IPC) corresponding to G.R. (S) 874 of 2023 presently pending before the Court of Ld. Chief Metropolitan Magistrate, Calcutta.

3. In the written complaint the opposite party no. 2 herein ( in connection with CRR 12 of 2024 & CRR 14 of 2024 respectively) alleged inter alia that the accused persons namely Faizaan Pasa, Nabil Patel, I.A. Shah, Mr. Rakesh Setia (petitioner herein in connection with CRR 12 of 2024) and later on the sales executive representing Real Gem Build Tech Private Limited, Mr. Deepak Puri (petitioner herein in connection with CRR 14 of 2024) in furtherance of their criminal conspiracy induced the opposite party no. 2 herein to purchase a flat in Tower-C, being no.-3601 at Gokhle Road, South, Prabha Devi, Mumbai for a consideration amount of Rs. 13,25,00,000/-. On being induced the opposite party no. 2 herein/complainant paid an amount of Rs. 8,00,000,00/- through different transactions. As per the agreement between the parties the said flat which was initially booked on 28.03.2012 was to be delivered within a period of three (3) years. On 29.10.2012 the dimensions of the said flat as well as the floor of the flat was changed by giving false statement. But, in spite of passage of the time the petitioners/accused (in connection with CRR no. 12 of 2024 and CRR no. 14 of 2024) neither delivered the said flat nor did they refund the money. Thus, the accused/petitioners as per flow of their criminal intent cheated the opposite party no. 2 herein/complainant for their wrongful gain and wrongful loss of the opposite party no. 2.

4. Both the revision applications have been filed assailing the proceeding in connection with Hare Street Police Station Case no. 224 of 2023 dated 01.08.2023 under Sections 406 /420/120B of the IPC corresponding to G.R. (S) 874 of 2023 presently pending before the Court of Ld. Chief Metropolitan Magistrate, Calcutta.

Issue to be decided:-

5. Only issue which falls for decision before this Court is that whether there was any attempt to give ‘a clock of criminal offence’ to any dispute which is essentially of a civil nature.

Arguments advanced:-

6. With respect to CRR 12 of 2024, Ld. Senior Counsel, Mr. Milan Mukherjee, appearing on behalf of the petitioner assailed the above mentioned proceeding on the ground that on 19.04.2012 there was a contract relating to allotment of flat in Mumbai wherein the opposite party no. 2 herein/complainant intended to purchase a flat for a consideration amount of Rs. 13,25,00,000/-. But, from 18.03.2018 to 16.06.2019 several communications were made by the petitioner herein to the opposite party no. 2 herein, requesting the opposite party no. 2/company to make balance payment and execute and register a formal agreement for sale. But, the opposite party no. 2 herein kept on defaulting in payment which led to termination of the allotment on 27.06.2019. Refund of the balance amount has also been made by the petitioner herein after adjusting the balance amount after deduction of forfeiture amount as per the contract dated 19.04.2012. There are various disputes still pending under the Consumer Protection Act before the Natio