IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
THE HON’BLE JUSTICE SHAMPA DUTT (PAUL)
CRR 2031 OF 2021
WITH
CRAN 1 OF 2021
CRAN 2 OF 2023
ROMIT RAY & ANR.
Vs.
THE STATE OF WEST BENGAL & ANR.
CRR 1958 OF 2021
WITH
CRAN 2 OF 2023
SAURADEEP CHATTOPADHYAY.
Vs.
THE STATE OF WEST BENGAL & ANR.
For the Petitioners : Mr. Tapan Dutta Gupta,
Mr. S. B. Chakraborty,
Ms. P. Anam,
Ms. Rituparna Ghosh,
Mr. S. Sardar.
For the State : Mr. Rana Mukherjee,
Ms. Sujata Das.
For the Opposite Party No.2 : Mr. Diptangshu Basu.
Hearing concluded on : 20.11.2024
Judgment on : 29.11.2024
Page : 2
SHAMPA DUTT (PAUL), J. :
1. The present revisional application has been preferred praying for
quashing of the proceeding being ACGR No.2793 of 2021
arising out of Garfa PS Case No.145 of 2021 dated 23.07.2021
under Sections 406, 407, 468, 471, 506 and 120B of the Indian
Penal Code pending before the learned Additional Chief Judicial
Magistrate, Alipore.
2. -
The petitioners’ case is as follows:
―……….One Anil Agarwal of 21/3, S. N. Chatterjee Road, PS
– Behala, Kolkata – 700 038 being the Director of M/S.
Hytone Merchants Private Limited lodged a written complaint
before the Officer-in-Charge, Garfa Police Station on
23.07.2021 alleging inter alia that complainants company is
the owner of one vehicle bearing registration no.WB-02-AB-
0461, Engine No.76538119, Chassis
No.WBA3F37040E991481, Manufacturer BMW India Private
Ltd. It is alleged that in the month of May, 2017 the present
petitioners approached the complaint to give the aforesaid
vehicle on hire purchase and on good faith the complainant
agreed. As said Ratanmoni Ray is an aged person the
complainant went to the petitioners‘ house to discuss the
proceedings of hire purchase.
It is further alleged that due to such allurement of the
petitioners, the complainant‘s firm give the above said vehicle
on hire purchase to Romit Ray at the rate of total hire
purchase of Rs.18,29,760/- (Eighteen lakhs twenty nine
thousand seven hundred sixty) payable in 48 months
Page : 3
installment of Rs.38,120/- only per month payable on and
from 01.06.2017.
Accordingly an agreement of hire purchase was executed on
11.05.2017 by and between the firm of the complaint and
Romit Ray at the residence of the petitioner.
The complainant‘s firm handed over and delivered the vehicle
together with the key and all original papers and documents
to Romit Ray and the petitioners assured and undertake to
pay the said total amount of Rs.18,29,760/- to the firm
positively in 48 monthly installments payable on and from
01.08.2017.
It is further alleged by the complaint that after receipt of the
vehicle said Romit Ray was a habitual defaulter in payment
and almost all his ECS were bounced, said Amit Ray paid
Rs.8,88,040/- only to the firm towards installments and
failed and neglected to pay the remaining amount which is
now outstanding dues of Rs.25,80,000/- including interest,
late payment charges, ECS bounce charges, taxes,
Insurance, penalty, over dues charges etc.
It is alleged further that the complaint requested Romit Ray
and his father several times to pay the outstanding dues. But
each time they have purposely delayed the matter and gave
false assurance to the complainant.
It is further alleged that the petitioners along with one
Sauradeep Chattopadhyay hatched a criminal conspiracy
and forged several fake and forged documents and transfer
the said vehicle to said Sauradeep Chattopadhyay for
wrongful gain and wrongful loss of the firm illegally detained
said vehicle at his residence when the complainant protested
Page : 4
and raised objection against their such illegal and unlawful
acts then the offenders became furious and violent and
threatened the complaint with serious consequences……….‖
3. The learned counsel for the State has placed the case diary.
4. Learned counsel for the opposite party no.2/complainant
submits that the vehicle in question has now been returned to
the opposite party no.2/ complainant and presently in their
custody.
5. Though it is alleged that the vehicle in question has been sold by
the petitioner to another person, the same could not be
substantiated by way of any document.
6. At page 24 of the case diary, it appears that the previous owner
was one Mr. Akash Tiwary and the present owner is Hytone
Merchants Pvt. Ltd.
7. A copy of the agreement of the hire purchase is filed and the
contract of hire purchase is admitted by both the parties.
8. From the seizure list annexed to the revisional application, it
appears that the said vehicle was seized on being identified by
the complainant/opposite party no.2 from the address of one
Sauradeep Chattopadhyay (may be a user) against whom it has
been alleged that the present petitioner has sold the vehicle to
him. But there is no document to substantiate that the
Page : 5
petitioner has transferred the vehicle in favour of the said
Sauradeep Chattopadhyay.
9. From another seizure list dated 27.07.2021 which is also a
certified copy annexed with the revisional application, it appears
that the original certificate of registration shows the owner as
Hytone Merchants Pvt. Ltd.
10. Heard the Counsels at length. Perused the materials on record.
Considered.
11. The present case is based on an agreement of hire purchase
dated 11th May, 2017 between the petitioner, Romit Roy and the
opposite party no.2. The said agreement relates to the
financing/Loan for purchase of the vehicle (BMW) in this case.
The said vehicle was taken by the opposite party on the basis of
the said agreement of hire purchase which includes a clause
for arbitration.
12. The said nature of transaction remains in the position of
hire till the hirer exercises his option of purchase by making
full payment towards the goods purchased.
13. Registration of the said vehicle in such cases may be made
showing the hirer as registered owner with an endorsement of
hire purchase in favour of the owners. The terms and conditions
of the said hire purchase agreement has been clearly laid down
Page : 6
in the said agreement which includes an agreement of
arbitration.
14. The present complaint filed by the opposite
party/defaulter/complainant is in respect of the said seizure of
the said vehicle in connection with the hire purchase agreement
between the parties.
15. Herein the opposite party has initiated the proceedings against
the petitioners as he is a defaulter in repayment of loan and the
vehicle in question was repossessed.
16. From the documents relating to the case in the case diary placed
by the State, there is no challenge as to the legality of the Hire
purchase agreement and the agreement for arbitration.
17. Admittedly there has been a breach of contract (Hire purchase
agreement) as prima facie the petitioner Romit Roy has failed to
perform his part of the agreement.
18. An agreement with an arbitration clause survives/exits even
after there is a breach, as the seed of arbitration which is
planted at the time of the agreement, germinates only when
there is a breach of performance. The parties right and
liabilities depends on the order/award in the arbitration.
19. Admittedly, the Arbitration Clause has not been invoked by
either parties in this case.
Page : 7
20. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and
Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). ………
of 2022 (Arising out of SLP (Crl.) No(s). 39 of 2022), the
Supreme Court held:-
―15. This Court has an occasion to consider
the ambit and scope of the power of the
High Court under Section 482 CrPC for
quashing of criminal proceedings in Vineet
Kumar and Others vs. State of Uttar
Pradesh and Another, (2017) 13 SCC
369 decided on 31st March, 2017. It may
be useful to refer to paras 22, 23 and 41 of
the above judgment where the following
was stated:
―22. Before we enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under
Section 482 CrPC vested in the High Court.
Section 482 CrPC saves the inherent power
of the High Court to make such orders as
may be necessary to give effect to any order
under this Code, or to prevent abuse of the
process of any court or otherwise to secure
the ends of justice.
23. This Court time and again has
examined the scope of jurisdiction of the
High Court under Section 482 CrPC and laid
down several principles which govern the
exercise of jurisdiction of the High Court
under Section 482 CrPC. A three-Judge
Bench of this Court in State of Karnataka v.
L. Muniswamy (1977) 2 SCC 699 held that
the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would
be an abuse of the process of the Court or
that the ends of justice require that the
proceeding ought to be quashed. In para 7
of the judgment, the following has been
stated :
‗7. … In the exercise of this wholesome
power, the High Court is entitled to quash a
Page : 8
proceeding if it comes to the conclusion that
allowing the proceeding to continue would
be an abuse of the process of the court or
that the ends of justice require that the
proceeding ought to be quashed. The saving
of the High Court’s inherent powers, both in
civil and criminal matters, is designed to
achieve a salutary public purpose which is
that a court proceeding ought not to be
permitted to degenerate into a weapon of
harassment or persecution. In a criminal
case, the veiled object behind a lame
prosecution, the very nature of the material
on which the structure of the prosecution
rests and the like would justify the High
Court in quashing the proceeding in the
interest of justice. The ends of justice are
higher than the ends of mere law though
justice has got to be administered according
to laws made by the legislature. The
compelling necessity for making these
observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent
powers of the High Court to do justice,
between the State and its subjects, it would
be impossible to appreciate the width and
contours of that salient jurisdiction.‘
41. Inherent power given to the High Court
under Section 482 CrPC is with the purpose
and object of advancement of justice. In
case solemn process of Court is sought to be
abused by a person with some oblique
motive, the Court has to thwart the attempt
at the very threshold. The Court cannot
permit a prosecution to go on if the case falls
in one of the categories as illustratively
enumerated by this Court in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC
335. Judicial process is a solemn
proceeding which cannot be allowed to be
converted into an instrument of operation or
harassment. When there are materials to
indicate that a criminal proceeding is
manifestly attended with mala fides and
proceeding is maliciously instituted with an
ulterior motive, the High Court will not
Page : 9
hesitate in exercise of its jurisdiction under
Section 482 CrPC to quash the proceeding
under Category 7 as enumerated in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC
335 which is to the following effect :
‗102. (7) Where a criminal proceeding is
manifestly attended with mala fides and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.‘ Above Category 7 is
clearly attracted in the facts of the present
case. Although, the High Court has noted
the judgment of State of Haryana v. Bhajan
Lal 1992 Supp (1) SCC 335 but did not
advert to the relevant facts of the present
case, materials on which final report was
submitted by the IO. We, thus, are fully
satisfied that the present is a fit case where
the High Court ought to have exercised its
jurisdiction under Section 482 CrPC and
quashed the criminal proceedings.‖
16. The exposition of law on the subject
relating to the exercise of the extra-ordinary
power under Article 226 of the Constitution
or the inherent power under Section 482
CrPC are well settled and to the possible
extent, this Court has defined sufficiently
channelized guidelines, to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.
This Court has held in para 102 in State of
Haryana and Others v. Bhajan Lal and
Others, 1992 Supp. (1) 335 as under :
―102. In the backdrop of the interpretation
of the various relevant provisions of the
Code under Chapter XIV and of the
principles of law enunciated by this Court in
a series of decisions relating to the exercise
of the extraordinary power under Article
226 or the inherent powers under Section
482 of the Code which we have extracted
and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
Page : 10
exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
(1) Where the allegations made in the
first information report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case against
the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose
a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of
a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or
complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
Page : 11
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge.”
17. The principles culled out by this Court
have consistently been followed in the
recent judgment of this Court in Neeharika
Infrastructure Pvt. Ltd. v. State of
Maharashtra and Others, 2021 SCC
Online SC 315.‖
21. The present case falls under category 1, 3 and 7 of Para 102 of
Bhajan Lal (Supra).
22. Lalit Chaturvedi vs. State of
The Hon’ble Supreme Court in
U.P, Criminal Appeal No. of 2023 (Arising out of SLP (Crl.)
No. 13485 of 2023):
―5. This Court, in a number of judgments, has
pointed out the clear distinction between a civil
wrong in the form of breach of contract, non-
payment of money or disregard to and violation
of the contractual terms; and a criminal offence
under Sections 420 and 406 of the IPC.
Repeated judgments of this Court, however, are
somehow overlooked, and are not being applied
and enforced. We will be referring to these
judgments. The impugned judgment dismisses
the application filed by the appellants under
Section 482 of the Cr.P.C. on the ground of
Page : 12
delay/laches and also the factum that the
chargesheet had been filed on 12.12.2019. This
ground and reason is also not valid.
6. In ―Mohammed Ibrahim v. State of Bihar‖,
this Court had referred to Section 420 of the
IPC, to observe that in order to constitute an
offence under the said section, the following
ingredients are to be satisfied:—
―18. Let us now examine whether the
ingredients of an offence of cheating are made
out. The essential ingredients of the offence of
―cheating‖ are as follows:
(i) deception of a person either by making a
false or misleading representation or by
dishonest concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that
person to either deliver any property or to
consent to the retention thereof by any person
or to intentionally induce that person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived;
and
(iii) such act or omission causing or is likely to
cause damage or harm to that person in body,
mind, reputation or property.
19. To constitute an offence under section 420,
there should not only be cheating, but as a
consequence of such cheating, the accused
should have dishonestly induced the person
deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a
valuable security (or anything signed or sealed
and which is capable of being converted into a
valuable security).‖
7. Similar elucidation by this Court in ―V.Y.
Jose v. State of Gujarat‖, explicitly states that a
contractual dispute or breach of contract per
se should not lead to initiation of a criminal
proceeding. The ingredient of ‗cheating‘, as
defined under Section 415 of the IPC, is
Page : 13
existence of a fraudulent or dishonest intention
of making initial promise or representation
thereof, from the very beginning of the formation
of contract. Further, in the absence of the
averments made in the complaint petition
wherefrom the ingredients of the offence can be
found out, the High Court should not hesitate to
exercise its jurisdiction under Section 482 of the
Cr.P.C. Section 482 of the Cr.P.C. saves the
inherent power of the High Court, as it serves a
salutary purpose viz. a person should not
undergo harassment of litigation for a number
of years, when no criminal offence is made out.
It is one thing to say that a case has been made
out for trial and criminal proceedings should not
be quashed, but another thing to say that a
person must undergo a criminal trial despite the
fact that no offence has been made out in the
complaint. This Court in V.Y. Jose (supra)
placed reliance on several earlier decisions in
―Hira Lal Hari Lal Bhagwati v. CBI‖, ―Indian Oil
Corporation v. NEPC India Ltd.‖, ―Vir Prakash
Sharma v. Anil Kumar Agarwal‖ and ―All Cargo
Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain‖.
10. The charge sheet also refers to Section 406
of the IPC, but without pointing out how the
ingredients of said section are satisfied. No
details and particulars are mentioned. There
are decisions which hold that the same act or
transaction cannot result in an offence of
cheating and criminal breach of trust
simultaneously. For the offence of cheating,
dishonest intention must exist at the inception
of the transaction, whereas, in case of criminal
breach of trust there must exist a relationship
between the parties whereby one party entrusts
another with the property as per law, albeit
dishonest intention comes later. In this case
entrustment is missing, in fact it is not even
alleged. It is a case of sale of goods. The
chargesheet does refer to Section 506 of the IPC
relying upon the averments in the complaint.
However, no details and particulars are given,
when and on which date and place the threats
were given. Without the said details and
particulars, it is apparent to us, that these
allegations of threats etc. have been made only
Page : 14
with an intent to activate police machinery for
recovery of money.
11. It is for the respondent no. 2/complainant –
Sanjay Garg to file a civil suit. Initiation of the
criminal process for oblique purposes, is bad in
law and amounts to abuse of process of law.‖
23. In the present case, the complaint before the Learned
Magistrate is connected to a Hire Purchase agreement with an
Arbitration clause and the vehicle in question was repossessed
lawfully.
24. The facts clearly do not make out a criminal offence as made out
in the written complaint, the transaction being prima facie civil
in nature, covered by an arbitration clause in an agreement for
hire purchase.
25. Considering all these facts and the materials on record, the
present case is fit to be interfered with under Section 482
Cr.P.C.
26. Having considered the aforesaid facts and circumstances of the
case, if the present proceeding is allowed to continue, it would
be sheer abuse of process of court and as such this is a fit case
where, invoking this cou
rt’s power under Section 482 of the
Code of Criminal Procedure, the present proceeding is required
to be quashed in the interest of justice.
27. The present case has been initiated for offence under Sections
406, 407, 468, 471, 506 and 120B of the Indian Penal Code but
Page : 15
as neither the case diary nor the opposite party no.2/
complainant could produce any document to prima facie show
that there has been transfer of the vehicle by way of forged
documents in favour of the petitioner Sauradeep Chattapadhyay,
in CRR 1958 of 2021, this Court finds that there is prima facie
no ingredients to make out a case against the said petitioner
Sauradeep Chattopadhyay for the offences alleged.
28. CRR 1958 of 2021 has been preferred by the said Sauradeep
Chattopadhyay who has been alleged to have purchased the said
vehicle from the petitioner Romit Ray in CRR 2031 of 2021, who
had entered into a Hire purchase agreement with the
complainant.
29. In view of the discussions made above, this Court finds that
there is no document to show or produced by the opposite party
no.2 and the State that the said vehicle was transferred to the
petitioner Sauradeep Chattopadhyay against whom the
allegation is that the vehicle was seized from front of his house.
30. Thus, the ingredients required to constitute the offences alleged
to have been committed, have not made out against the
petitioners Ronit Roy and Sauradeep Chattopadhyay.
31. The proceeding being ACGR No.2793 of 2021 arising out of
Garfa PS Case No.145 of 2021 dated 23.07.2021 under Sections
406, 407, 468, 471, 506 and 120B of the Indian Penal Code
Page : 16
pending before the learned Additional Chief Judicial Magistrate,
Alipore, is hereby quashed in respect of the petitioners,
Romit Ray and Sauradeep Chattopadhyay.
32. All connected application, if any, stands disposed of.
33. Interim order, if any, stands vacated.
34. Let a copy of the Judgment be sent to the learned trial court at
once.
35. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties, expeditiously after complying with all
necessary legal formalities.
[Shampa Dutt (Paul), J.]