The Judgment of the Court was delivered by
Dipak Saha Ray, J.:— The present case arises out of an application under Section 482 of the Code of Criminal Procedure 1973 for quashing the criminal proceeding of G.R case No. 974 of 2011 arising out of Siliguri P.S Case No. 309 of 2011 dated 7.6.11 under Sections 406/418/420/426/447/506/509 of the Indian Penal Code which is pending before the learned Chief Judicial Magistrate, Siliguri.
The relevant facts of the present case are, in a nutshell, as follows:
Opposite party No. 2 herein as defacto complainant filed a petition of complaint before the learned Chief Judicial Magistrate, Siliguri which was sent to the O.C, Siliguri P.S for investigation after treating the same as FIR under Section 156(3) of the Code of Criminal Procedure. Accordingly, Siliguri P.S case No. 309 of 2011 dated 7.6.2011 was started. In the said petition of complaint the defacto complainant alleged inter alia that in 2009, she sold the roof on the 2nd floor of her building with a right to raise construction on the said roof and executed a deed of sale in favour of the accused persons with the terms and conditions that Sumit Kr. Gupta (one of the accused persons/one of the petitioners herein) would construct the common entrance and staircase upto 2 Floor with marble finishing. But inspite of such condition, the said accused persons did not make such construction in spite of requests. On the contrary, they threatened the defacto complainant with dire consequences and abused her with filthy languages. Accordingly, the matter was reported to the Siliguri P.S vide Siliguri P.S.G.D Entry No. 1725 of 2011 dated 22.2.2011 It was further alleged in the said petition of complaint that without consent of the defacto complainant the accused persons installed a water tank with an intention to restrain her and her family members and tenants from using the common passage. When the matter was protested by the youngest daughter of the defacto complainant, the accused persons threatened her with dire consequences. It was alleged that the accused persons induced the defacto complainant by giving false promises and assurance that they would construct the common passage and staircase with marble finishing and thereby managed to purchase the roof on the 2 floor and constructed the flat thereon and in that manner they cheated her. It was also alleged that the defacto complainant had been to the Siliguri P.S to lodge the complaint with the O.C, Siliguri P.S, but the O.C refused to start any case. Accordingly, she filed the petition of complaint before the learned court.
It is the case of the petitioners that the opposite party No. 2 herein has filed a case with an ulterior motive to harass them. It is also alleged that the dispute between the parties is purely civil in nature and accordingly, the petitioners filed a title suit before the learned Civil Judge, (Sr. Div.), Siliguri which was registered as T.S No. 21 of 2011 and got an order of ad interim injunction in their favour. It is also the case of the petitioner that the defacto complainant/opposite party No. 2 also filed a civil suit before the Civil Judge, Jr. Div., Siliguri which was registered as O.C Suit No. 39 of 2011. It is further argued that the petition of complaint does not disclose necessary ingredient of any criminal offence.
It is submitted by the learned counsel for the petitioners that the petition of complaint does not contain the ingredient of alleged offences under Sections 406/418/420/426/447/506/509 of the Indian Penal Code. It is further submitted by the learned counsel that the civil suits are pending between the parties in respect of the sale deed executed by the defacto complainant in favour of the accused persons. It is further submitted by learned counsel for the petitioners that the dispute between them are civil in nature and civil remedy is available and for that reason civil suits have been filed by them.
There is no controversy that the roof of the 2 floor of the building of the O.P No. 2 was sold in favour of the accused persons by executing a deed of conveyance. There is also no dispute that there was agreement between the parties to the effect that the accused persons would construct common passage and staircase upto 2 floor with marble finishing. There does not appear to be any controversy that both the parties have initiated civil suits against each other which are still pending.
The controversy mainly relates to the question as to: i) whether the petition of complaint was filed against the accused persons mala fide and with an ulterior motive and ii) whether the allegations made in the complaint prima facie disclose commission of the offences as alleged in the FIR.
Now, after taking into consideration all relevant facts and materials and giving due regard to the submission made by the learned counsel for the petitioners, it appears that three points are required to be considered i) whether there is sufficient ground for proceeding against the petitioner/accused person ii) whether there is an abuse of the process of the court and iii) whether ends of justice demands quashing of the proceedings.
In the petition of complaint, it has been alleged that the accused persons by false promise and assurance induced the defacto complainant/O.P No. 2 to sale the roof of the 2 floor to the accused persons for constructing flat thereon. In the said complaint, it is also alleged that the accused person without consent of the defacto complainant/O.P No. 2 installed a water tank on the common passage with an intention to obstruct her and her family members and also the tenants of the said premises from using the common passage and on the basis of the said complaint, Siliguri P.S case No. 309 of 2011 dated 7.6.11 was initiated under Sections 406/418/420/426/447/506/509 of the Indian Penal Code.
Now, it is to be considered whether the said petition of complaint which was treated as FIR constitutes any of the said offences.
It is evident that there is nothing in the petition of complaint that any property was entrusted to any of the accused persons and/or the accused persons had domain over any of the properties of the complainant which they had dishonestly converted to their own use. So, the ingredients of criminal breach of trust are not found in the petition of complaint.
It is well known that mere breach of contract cannot give rise to criminal prosecution under Section 420 IPC unless fraudulent or dishonest intention is shown right at the beginning of the transaction time when the offence was said to have been committed. If the promise and/or the assurance made by the accused person have subsequently not been kept, criminal liability cannot be attracted against the accused persons and the complainant has right to seek for civil remedy.
Now, it is to be considered whether or not there is any ingredient of offence under Section 418/426/506/509 IPC in the petition of complaint.
The essential ingredients to constitute an offence under Section 418 IPC are as follows:
a) that the accused was under a legal obligation or contractual obligation to protect the interest of some other person; b) that the accused cheated that person; c) that cheating had relation to his legal or contractual obligation aforesaid; d) that the accused did so with knowledge that in the process he was likely to cause wrongful loss to the person cheated.
Similarly, the main ingredients of mischief are as follows:
1. Dishonest intention to take property; 2. The property must be removable; 3. It should be taken out of the possession of another person; 4. It should be taken without the consent of that person and 5. There must be some removal of the property in order to accomplish the taking of it.
But plain reading of the petition of complaint does not go to show that there is any ingredient of offence under Section 418 IPC or under Section 426 IPC in the petition of complaint.
In the FIR the defacto complainant/O.P No. 2 has alleged that the accused persons threatened the defacto complainant/O.P No. 2 with dire consequences and also picked up quarrel with her and abused her with filthy languages. Now, it is to be considered whether such allegations constitute any offence under Sections 506/509 IPC.
The essential ingredients of the offence under Section 506 IPC are as follows:
1. The accused threatened someone with injury to his person, reputation or property, or to the person, reputation or property of another in whom the former was interested; 2. The accused did so with intent to cause alarm to the victim of offence; 3. The accused did so to cause the victim to perform any act which he was not legally bound to do.
Mere threat is not sufficient to attract the charge of criminal intimidation. The threat should be given with an intent to cause alarm to the person threatened and the threat should be a real one and not just a mere word. Accordingly, it appears that the essential ingredient of offence under Section 506 IPC is also absent in the contents of the FIR as there was no specific allegations against the persons that they threatened the compliant with injury to her person, reputation or property.
Now, it is to be ascertained whether the contents of the FIR discloses the ingredient of offence under Section 509 IPC. The essential ingredients of the offences under Section 509 IPC are as follows:
1. The accused uttered some words, or made some sounds or gesture or exhibited any object or intruded upon the privacy of a woman; 2. The accused must have intended that the words so uttered or the sound or gesture so made or the object so exhibited should be heard or seen respectively by the woman; 3. The accused thereby intended to insult the modesty of the woman.
Such essential ingredients which constitute an offence under Section 509 IPC are also absent in the petition of complaint.
In the instant case, it has already been pointed out that both the parties have initiated civil suits against each other. So, it may be reasonably presumed that it is within their knowledge that the dispute between them are essentially civil in nature and civil remedies are available.
Having regard to all such facts and circumstances and materials on record, it appears that the petition of complaint does not disclose any offence under Sections 406/418/420/426/447/506/509 of the Indian Penal Code against the present accused. So, I find merit in the present application under Section 482 of the Code of Criminal Procedure which accordingly must be allowed.
Accordingly, the instant application under Section 482 of the Code of Criminal Procedure succeeds.
CRR 2947 of 2011 is allowed and in the nature and background of the case without cost.
The proceeding of G.R Case No. 974 of 2011 arising out of Siliguri P.S Case No. 309 of 2011 dated 7.6.2011 is hereby quashed and all the petitioners are discharged and be released from their respective bail bonds.
Let a copy of this judgment be sent to the learned trial court for information and necessary action.
Urgent Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.