A criminal complaint must not be lodged when the dispute is primarily civil; therefore, criminal proceedings are an abuse of law.

JUDGMENT :

APURBA SINHA RAY, J.

1. The instant application under Section 482 of Cr.P.C. was filed by the petitioner Sankar Mondal alleging inter alia that initially an agreement dated 01.03.2017 was executed by and between the opposite party no. 2 and himself. The said agreement was essentially a development agreement for a project to be constructed by the opposite party no. 2 who had paid Rs. 25,00,000/- (twenty five lakhs only) to the petitioner by way of cheques on the basis of certain conditions as mentioned in the said agreement. However, subsequently misunderstanding and disputes were cropped up and by an agreement dated 04.01.2020 the aforesaid agreement dated 01.03.2017 was mutually cancelled on condition that the petitioner will have to pay Rs. 80,00,000/- (eighty lakhs only) to the opposite party no. 2. However, it is mentioned in the second agreement that the proposed sum of Rs. 80,00,000/- (eighty lakhs only) will include Rs. 25,00,000/- (twenty five lakhs only) which was paid to the opposite party no. 2 by the petitioner.

2. Mr. Maity, learned counsel for the petitioner, argues that the said agreement dated 04.01.2020 is unconscionable and the petitioner was forced to execute such agreement. However, the opposite party no. 2 lodged a false criminal case, which is full of misrepresentation and anomalies, against the petitioner knowing fully well that the dispute arose between the parties is of civil nature and the opposite party no. 2’s prayer for initiation of criminal proceedings under Section 156 (3) of Cr.P.C was turned down and after taking cognizance, the opposite party no. 2 was directed to proceed in accordance with the provisions under Section 200 of Cr.P.C. Subsequently, the opposite party no. 2 was examined and an enquiry report was called for from the concerned police station. Although, the police report discloses that there is no criminality involved in the matter, the Learned Judicial Magistrate issued process against the petitioner in connection with Complaint Case No. AC 995 of 2022 in gross violation of the established principles of law. Mr. Maity has further submitted that before taking cognizance and issuance of process, necessary formalities are required to be complied with but in this case the same were not complied with. There are no ingredients of fraud or criminal breach of trust or cheating in the four corners of the complaint. The fact disclosed in the complaint partakes the character of civil wrong and, therefore, the opposite party no. 2 should have moved the civil forum for breach of contract. Moreover, as there was a delay in mutation proceeding the opposite party no. 2 is not willing to proceed with the agreement. It is also submitted by Mr. Maity that time is not stipulated in the agreement dated 01.03.2017 and time is not the essence of the said contract. However, the first agreement has become redundant after execution of the second agreement dated 04.01.2020.

3. Learned counsel Mr. Imtiaz Ahmed appearing for the opposite party no. 2 has submitted that this is not a direct complaint case and reasons have been given by the Learned Additional Chief Judicial Magistrate, Alipore by his order dated 20.04.2022. By the said order the Learned Additional Chief Judicial Magistrate, South 24 Parganas, Alipore had taken cognizance and for further proceeding, the case was transferred to the Learned Judicial Magistrate, 7^th Court, Alipore and thereafter vide order dated 26.07.2022 the p