Ashim Kumar Roy, J.
1. Challenging the legality and validity of their prosecution under Section 406/420/120B of the Indian Penal Code in connection with the Case No. 290/C/03, now pending before the Learned Sub-Divisional Judicial Magistrate, Kalyani the petitioners moved the instant criminal revision invoking inherent jurisdiction of this Hon'ble Court for quashing of the said proceedings as well as the order of taking cognizance.
2. The case of the complainant as its reflects from the allegations made in the petition of complaint are as follows;
(a) In the year 1992 the complainant who is a resident of Delhi came down to West Bengal and decided to permanently settle here at Kalyani Town and also to start a business of Fabric Print. At that time as the complainant was vigorously searching for a plot of land at Kalyani Town through the witness Mohan Bapari was introduced with the accused persons as well as with Late Binapani Das, the mother of the accused persons and with Late Bimal Das, one of the brother of them.
(b) The accused persons as well as Binapani Das and Bimal Das offered for sale of plot of land situated at B-5/31 (C.A) situated at Kalyani and further represented there is no difficulty in selling the said plot.
(c) As the complainant desire to purchase the said land in the name of his wife the accused persons agreed to sell the same at Rs. 4,10,000/-.
(d) In this regard on October 26, 1994 the accused persons paid a sum of Rs. 20,000/- to the Late Bimal Das and on November 17, 1994 a sum of Rs. 3,60,000/- to Late Binapani Das.
(e) Following the payment of the aforesaid amount of money on November 17, 1994 itself the Late Binapani Das further executed a registered irrevocable power of attorney at her residence in presence of Sub-Registrar, Kalyani came there.
(f) Out of total consideration amount of Rs. 4,10,000/- the complainant paid Rs. 3,80,000/- whereas in the registered power of attorney the consideration amount was shown as 1,50,000/- to evade the proper duty.
(g) In order to transfer any property situated within the Kalyani Notified Area as the prior permission of the Government of West Bengal is necessary the complainant repeatedly contacted the accused persons and requested the accused persons as well as the Late Binapani Das and Late Bimal Das for obtaining the necessary permission but they on various pretext tried to avoid them and assured the complainant that within a short time they would hand over to him all the relevant papers including the Lease Deed after obtaining necessary permission from the statutory authority they shall execute the Sale Deed.
(h) In the meantime both Binapani Debi and Bimal Das expired when the complainant requested the accused persons to take steps for mutation when he was told by the said accused persons that they have already made necessary application for mutation in that regard.
(i) Sometime in the May, 2003 the complainant made an enquiry at the office of the Estate Manager, Kalyani and came to learn that the accused persons neither applied for mutation or for permission of transfer and he further came to learn the Government has not yet executed any Lease Deed in favour of any of the plot holder.
(j) Thereafter the complainant once again met the accused persons and requested them to take steps in this regard when the said accused persons flatly refused to do anything.
(k) The accused persons by their advocate's letter dated June 16, 2003 also denied everything about the aforesaid deal.
3. The learned advocate Mr. Biplab Mitra appearing in support of this application for quashing vehemently contended as follows;
(i) The dispute is absolutely civil in nature and no criminal prosecution is maintainable.
(ii) The remedy against alleged non-performance of agreement of sale by the transferor, when such sale is accompanied by delivery of possession of land, is available under Section 53(A) of the Transfer of Property Act.
(iii) There is no allegation that payment has been received by any one of the accused persons.
(iv) There has been a long delay of nine years in filing the complaint from the date of payment.
(v) The persons who received the payments are dead.
(vi) The allegation that the complainant on several occasions approached the accused persons for obtaining necessary permission from the statutory authorities for transferring the plot of land in question clearly indicates that for transfer of any leasehold land situated within the territory of Kalyani Notified Area prior permission of the Government was necessary was very much known to the complainant.
(vii) On the allegations that the accused persons being the legal heirs of Late Binapani Debi without applying for mutation and for permission for transfer of the land before the statutory authority falsely claimed that such steps have been taken, no case of the offences punishable under Section 420/406 of the Indian Penal Code can be said to have been made out. In support of his contention Mr. Mitra relied on two decisions of the Hon'ble Apex Court relating to the case of Ram Biraji Singh and Anr. v. Umesh Singh and Anr. reported in (2006) 3 SCC (Cri) 176 and Suresh v. Mahadevappa Shivappa Dananava reported in AIR 2004 SC 1047.
4. On the other hand, Mr. Pratik Dhar, the learned advocate appearing on behalf of the complainant refuted the submissions of Mr. Mitra by urging as follows;
(i) Where in a case the question is one of quashing of the complaint the Court is required to confine itself only with the face value of the allegations contained in the complaint and nothing beyond the same can be taken into consideration.
(ii) Delay in lodging the complaint cannot by itself is a ground for quashing of the complaint.
(iii) Availability of the civil remedy is no bar for a criminal prosecution when the facts of the case constitute commission of a criminal offence.
(iv) Although the accused persons along with Late Binapani Das and Late Bimal Das while offered to sell the property in question represented to the complainant there will be no difficulty in transferring the property and thereby induce the complainant to pay a sum of Rs. 3.8 lakhs the offence is obviously committed as on subsequent enquiry the complainant came to learn from the statutory authority, that without the permission of the Government no such transfer can be made and no application in that regard was ever made even on the date when they received payment no Lease Deed was executed by the Government in favour of the accused persons.
(v) In paragraph 2 of the application it was stated.... 'It was worthwhile to mention that the aforesaid property is not qualified for an absolute sale in terms of the agreement entered into between Late Binapani Das and the State of West Bengal' and knowing fully aware of such facts the complainant was induced to pay the said sum of Rs. 3.80 lakhs. In support of his contention Mr. Dhar relied on the following decisions;
(I) The Assistant Collector of Customs, Bombay and Anr. v. L.R. Melwani and Anr. reported in : 1970CriLJ885 , (II) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi reported in : 1976CriLJ1533 , (III) Jindal Strips Ltd. v. Anil Kumar Agarwal reported in 2001 (2) CLJ 541, (IV) State of M.P. v. Awadh Kishore Gupta and Ors. reported in : 2004CriLJ598 , (V) Medchi Chemicals and Pharma Private Ltd. v. Biological (E) Ltd. and Ors. reported in AIR 2000 SC 1869, (VI) M. Krishnan v. Vijay Singh and Anr. reported in : 2001CriLJ4705 .
5. Heard the learned advocates appearing on behalf of the parties. Considered their respective submissions as well as the decisions relied upon them.
6. This is a case for quashing of the complaint and as have been held by the Apex Court in its catena of decisions the court has to confine itself within the four corners of the allegations made in the petition of complaint as well as what is appearing from the initial depositions of the complainant and his witnesses and from its accompaniments and then to see on the face of those allegations and accepting the same to be correct whether any offence has been made out or not. In the instant case, it has been strenuously urged by the Learned Counsel of the petitioners as no payment was made to the either of the accused persons and when it is the admitted case of the complainant payment if any was made to Late Binapani Das and Late Bimal Das no case of cheating punishable under Section 420 of the Indian Penal Code can be said to have been made out against any one of the present petitioners.
In this connection I feel that it is now essential to take into consideration the definition of the cheating punishable under Section 420 of the Indian Penal Code, the said provisions is quoted below:
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, ought to send that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he would not so deceived and which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat.
Explanation ...(A)
A dishonest concealment of fact is a deception within the meaning of this section.
7. Thus from a plain reading of the definition of cheating it is crystal clear that even not only the person who by himself by deceiving any person fraudulently and dishonestly induces the person so deceived to deliver any property to him is guilty for an offence of cheating, even the persons who by deceiving any person, fraudulently or dishonestly induced the person so deceived to deliver any property to any third person is equally guilty for the offence of cheating, as such if being deceived by any person, the person so deceived delivered any property to a third party not to the person who deceived and induced him, the person practising such deception is also guilty for an offence of cheating. Thus in order to ascertain whether an offence of cheating has been committed or not by any particular person it is not only essential to see to whom property have been delivered but it is more essential to see who actually deceived the complainant and thereby fraudulently and dishonestly induced him to deliver the property. In the instant case, the agreement of sale executed between the parties has been produced before the court during the hearing of the matter and the genuinity of the same and its content were not disputed by either of the parties. Having gone through the content of the said agreement I have found that the said agreement which was executed between the Binapani Das and the wife of the complainant Smt. Snigdha Dutta was signed besides by Late Binapani Das and Late Bimal Kumar Das, on its each page, by Chanchal Kumar Das and Nirmal Kumar Das who are happened to be the petitioner No. 1 and 2 herein. It does not appear from the materials on record that the remaining other petitioners have taken any part in execution of the said agreement in question not the complainant in his petition of complaint or in his initial deposition attributed any specific role as against them.
8. I have also carefully gone through the content of the petition of complaint as well as the initial deposition of the witnesses. It is the specific case of the complainant that by concealment of certain facts the accused persons deceived the complainant and thereby fraudulently and dishonestly induced him to enter into agreement and to pay a huge amount of money as consideration amount. Whether the allegations are correct or not and whether there was at all any concealment of facts as alleged by the complainant is a matter neither can be decided nor can be urged before this Court while court is considering the question of quashing of the complaint.
9. Even assuming the remedy by way of civil action is available to the complainant against the dispute in question that does not prevent the complainant to take recourse to criminal action when the facts of the case prima facie disclose commission of a criminal offence. The availability of civil remedy is no bar for a criminal action when the facts of the case prima facie disclose commission of a criminal offence. In this connection reliance may be placed in the case of Ashok Chaturbedi v. reported in 1998 SCC (Cri) 1704, Alpic Finance v. reported in 2001 SCC (Cri) 565, M. Krishnan v. Vijay Singh and Anr. (supra), Medchi Chemicals and Pharma Private Ltd. v. Biological (E) Ltd. and Ors. (supra).
10. The one of the contention of Mr. Mitra that there has been an inordinate delay in filing the complaint is absolutely without any force. In my opinion, the question of delay in filing complaint may be a circumstance to be taken into consideration in arriving at final verdict but by itself it affords no ground for quashing of the complaint. The only other contention of Mr. Mitra that it is an admitted case of the complainant that inspite of being approached by him for taking steps for permission from the statutory authority for transfer of the land and for mutation of their names the accused persons took no steps clearly indicates that it was known to the complainant that taking permission for transfer of a particular plot of land is necessary and there was no concealment. I am unable to accept such contention of Mr. Mitra for the reason that it is the specific case of the complainant that at the time of execution of the agreement for sale it was clearly represented to him by the accused persons that there will be no difficulty in getting the land in question being transferred in favour of the complaint's wife. Even assuming but not accepting the plea of Mr. Mitra is correct that it was known to the complainant that prior permission of the statutory authority is required still then when it is the case of the complainant that he was told that there would be no difficulty in getting the land transferred and inspite of the same when the accused has taken no steps for transferring the land after receiving the consideration amount long back it cannot be said that no case of cheating has been prima facie made out.
11. In view of the above, I find that no case of commission of the alleged offences has been made out against the married daughters of Late Binapani Das viz. petitioner No. 4 Chandana Das, petitioner No. 5 Uma Pramanick, petitioner No. 6 Rama Guin, petitioner No. 7 Krishna Guin, petitioner No. 8 Mina De as well as against the petitioner No. 3 Ashok Kumar Das. From the perusal of the records it appears to me that none of them took any part in the deal towards the execution of agreement by and between Late Binapani Das and the wife of the complainant. Accordingly the impugned complaint against petitioner No. 4 Chandana Das, petitioner No. 5 Uma Pramanick, petitioner No. 6 Rama Guin, petitioner No. 7 Krishna Guin, petitioner No. 8 Mina De as well as petitioner No. 3 Ashok Kumar Das stands quashed.
12. So far as the petitioner No. 1 Chanchal Kumar Das and petitioner No. 2 Nirmal Kumar Das are concerned a prima facie case having been made out against them, their application for quashing of the impugned complaint stands rejected. In the result, the instant criminal revisional application stands allowed in part.
13. This is a case which is pending since 2003, I, therefore, direct the Learned Sub-Divisional Judicial Magistrate, Kalyani, Nadia now the Learned Additional Chief Judicial Magistrate, Kalyani, Nadia before whom the complaint Case No. 290/C/03 is pending to proceed with the case at once and conclude the trial of the same as expeditiously as possible and preferably within a year from the date of communication this order.
14. The office is directed to immediately send down the Lower Court Records as well as to communicate this order to the Learned Court below at once by special messenger at the cost to be deposited by the complainant/opposite party in course of this week.
15. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.