Siddharth Sethia & Ors. v. The State of West Bengal & Anr.

Judgment

#1. Petitioners being the accused persons preferred this Criminal Revisional application under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’), seeking quashing of the proceeding being CS/49908 2021 under sections 420/406/120B/34 of the Indian Penal Code (in short ‘I.P.C.’) 2 pending before the Court of the Learned Metropolitan Magistrate, 19th Court at Calcutta including order dated 24th August, 2021. FACTS OF THE CASE: -

#2. The brief facts, essential for the purpose of disposal of the instant case, are as follows: - a. On 29th April, 2014, a Memorandum of Understanding (in short ‘MOU’) was executed between the opposite party no. 2/complainant and the petitioner no. 1 for the development of land measuring an area of 113.3574 decimals situated within the Mouza – Pathuriaghata, J.L. No. 36, P.S.- New Town, District- North 24-Parganas, belonging to the petitioners. Pursuant thereto, on 21st May, 2014, M/s Harmony Vinimay Pvt. Ltd., owned by the opposite party no. 2/complainant, issued two cheques amounting to Rs. 51 lakhs and Rs. 50 respectively in favour of M/s Intimate Promoters Pvt. Ltd., a company in which petitioner nos. 2 and 3 are directors. Petitioner no. 1 happens to be the son of Petitioner no. 2 and the husband of Petitioner no. 3. M/s. Intimate Promoters Pvt. Ltd is

a family-owned company of Mr. Siddharth Sethia. b. The family of Mr. Piyush Bhagat owns shares in Harmony Vinimay Pvt Ltd., and he is one of the shareholders and directors of the said company. It was agreed between the parties that the 3 land in question would be developed through M/s BKS Infraprojects LLP, an entity of the opposite party no. 2/complainant. c. Subsequently, on 13th March, 2020, in order to develop the said land as per the proposal of the West Bengal Housing Infrastructure Development Corporation (HIDCO), a portion of the land was exchanged between HIDCO and M/s Intimate Promoters Pvt. Ltd. d. Thereafter, on 24th August, 2021, the opposite party no. 2/complainant filed a complaint being CS/49908 of 2021 before the Court of the learned Chief Metropolitan Magistrate at Calcutta, alleging commission of offences punishable under Sections 420/406/120B/34 of the IPC. The allegation, inter alia, was that in or about April 2014, the petitioners had falsely represented themselves as the owners of the said land and induced the complainant to part with money on the assurance of development of the land. e. On the same date, the learned Chief Metropolitan Magistrate took cognizance of the alleged offences and transferred the case to the Court of the learned Metropolitan Magistrate, 19th Court at Calcutta for its disposal. Upon receipt of records, the learned 4 Magistrate issued process in the nature of summons by order dated 24th August, 2021. f. Subsequently, on 4th December, 2021, a Non-Bailable Warrant was issued against the petitioners to secure their presence. The petitioners surrendered before the learned Trial Court on 14th March, 2021 and were released on bail. The matter was, thereafter, fixed on 29th October, 2022, for evidence before charge. g. Being aggrieved by and dissatisfied with the initiation and continuance of the proceeding being CS/49908 of 2021, including the order dated 24th August, 2021, the petitioners have approached this Court by filing the present petition. SUBMISSION ON BEHALF OF THE PETITIONERS:-

#3. Learned counsel appearing on behalf of the petitioners submitted that the petitioners are absolutely innocent and they have been falsely implicated in the aforesaid criminal proceeding only to pressurise them to settle the dispute, although the entire dispute arose out of an MOU signed by the petitioner no. 1 and the opposite party no. 2.

#4. It was further submitted that no criminal offences under Sections 406/420/120B of IPC are made out against the present petitioners as there is no dishonest intention at the inception of executing the 5 MOU between the parties. Furthermore, no property had ever been entrusted to the petitioners; rather, the amount paid as security deposit under a commercial arrangement was returned and refunded, clearly negating the allegation of cheating.

#5. The criminal case, lodged by the opposite party no. 2, is only on the basis of the MOU, which was executed between the parties for the development of the land of the petitioners under certain terms and conditions stipulated in the said MOU. Actually, the opposite party no. 2 failed to perform his obligation under the MOU from the very inception, as a result of which the project never commenced, and the petitioners suffered a huge loss amounting to Rs. 15.32 Crores. The complainant/opposite party no. 2 had already initiated a Civil Suit against M/s Intimate Promoters Pvt. Ltd. in respect of the same transaction apart from this proceeding. The criminal complaint has been lodged only to harass the petitioners and for their illegal gain. The dispute, whatsoever, is purely civil in nature and such dispute can be decided only by the Civil Court.

#6. Finally, the learned counsel submitted that this complaint was lodged in the year 2001, after expiry of more than 7 years, without explaining the inordinate delay, which clearly indicates that the criminal proceeding is only to pressurise and is a tactic adopted to 6 settle the dispute between the parties anyhow, and is, therefore, an abuse of the process of law. Therefore, it should be quashed to secure the ends of justice; otherwise, the petitioners would suffer irreparable loss and injury that cannot be compensated with monetary relief.

#7. Learned counsel has relied upon the following judgments to support of his contention that the opposite party no. 2 failed to fulfil his part obligation within the time specified in the MOU and also to support his contention that the FIR contains no averment with regard to the fraudulent or dishonest inducement having been committed by the petitioners and/or what manner they cheated the opposite party no. 2 as under: - i. Murari Lal Gupta Vs. Gopi Singh1; ii. Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr.2; iii. Suresh Vs. Mahadevappa Shivappa Danannava & Anr.3; iv. Kunti & Anr. Vs. State of UP & Anr.4; v. Indian Oil Corporation Vs. NEPC India Ltd. & Ors.5; vi. Prem Kumar Vs. State of Rajasthan & Anr.6;