A bona fide intention to deceive at the inception of a contractual agreement can constitute a criminal offense, thereby validating the continuation of criminal proceedings despite the availability of civil remedies.

JUDGMENT :

MITALI THAKURIA, J.

Heard Mr. M. U. Mahmud, learned counsel for the petitioners. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent No.1 and Mr. K. Brook, learned counsel for the respondent No.2.

2. This application is filed under Section 528 of the BNSS , seeking the setting aside and quashing of PRC Case No. 1587/2022 [corresponding to Jagiroad P.S. Case No. 29/2021], registered under Sections 120(B)/420/406 of the IPC, along with the Charge Sheet, vide C.S. No. 167/2022 and the impugned order dated 11.07.2022, passed by the learned Sub-Divisional Judicial Magistrate (S), Morigaon, whereby cognizance was taken against the present petitioners. The case is currently pending before the said Court.

3. On 16.01.2021, an FIR was lodged by Nripendra Bhattacharya/present respondent No.2/informant before the Officer-in-Charge of Jagiroad Police Station, stating inter alia that he is a retired employee of Jagiroad Paper Mill and, due to the unavailability of his own house, continues to reside at HPC Colony, Jagiroad. After his retirement, he came to know that the present petitioners were selling their RCC building at Sensuwa, Kalpataru Housing Society, Nagaon District. Following an agreement, he paid Rs. 19,35,000/- (Rupees nineteen lakhs thirty-five thousand) only out of Rs. 27,00,000/- (Rupees twenty-seven lakhs) only to the petitioners. However, despite receiving the payment, the petitioners neither handed over the building nor refunded the amount, even after providing a written surety. The informant further alleged that petitioner No. 2, Nirmali Saikia, issued two cheques, both of which were dishonored due to insufficient funds. Following the FIR, the petitioners were arrested on 27.04.2021 and produced before the learned Additional Chief Judicial Magistrate, Morigaon. The Court, considering the facts and circumstances, observed that the dispute was civil in nature, the apprehension of the Investigating Officer (IO) was misplaced, and the arrest of the petitioners was unjustified. Consequently, the petitioners were released on bail on the same day.

4. Mr. Mahmud, learned counsel for the petitioners, submits that after the investigation, the police submitted Charge Sheet, vide C.S No. 167/2022, dated 11.05.2022, under Sections 120(B)/420/406 IPC before the learned Trial Court. He further submitted that the informant filed this case at the instigation of certain miscreants, despite the petitioners’ willingness to refund the amount. As a result, the petitioners are facing severe financial hardship. Thereafter, the Charge Sheet was filed, the case was renumbered as PRC Case No. 1587/2022, and on 11.07.2022, the learned Sub-Divisional Judicial Magistrate (S), Morigaon, took cognizance under Sections 120(B)/420/406 IPC and issued summons to the petitioners. The petitioners appeared through their engaged advocates.

5. The petitioners contended that the case and Charge Sheet is lacking legal basis or criminal elements. Mr. Mahmud submits that the matter is purely civil in nature, yet the IO registered a criminal case and filed a Charge Sheet without proper legal scrutiny. He submits that alternative legal remedies, such as a case under Section 138 of the Negotiable Instruments Act (N.I. Act) or a civil suit for specific performance, were available to respondent No. 2 (informant), but instead, he filed a criminal case solely to harass the petitioners.

6. He furth