Rajendra Nath Sinha, J.
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973. It is all about being aggrieved by an order dated 17.2.1999 passed by the learned Judicial Magistrate, First Class, Barrackpore in G. R. Case No. 3217 of 1992 arising out of Bidhannagar Police Station Case No. 103 of 1992 dated 15.8.1992 under Sections 420/406/465/467/120B of the Indian Penal Code. The petitioner who happened to be a doctor responded to an advertisement appeared in Ananda Bazar Patrika dated 8.11.1990 inviting offers for sale of a co-operative flat at Purba Cooperative Housing Society Ltd., Salt Lake City, where one Nisith Das represented himself to be an authorised agent of Sri Satyanshu Chakraborty, the recorded owner of the flat negotiated the sale process. The then Hemen Moitra of the aforesaid Housing Society also testified that the said Nisith Das is an authorised agent of the owner and duly advised him to apply for membership of the Society which was done by the petitioner.
2. On fulfilment of all the necessary obligations the said flat No. A-6 of the aforesaid Society was transferred by the execution of a deed of transfer on 27.11 1990. Sri Nisith Das and one Chandra Sekhar Hazra were the witnesses of the said deed and one Pannlal Mandal, advocate was the identifier of the agreement and signature was attested by Mr. P.K. Roy, notary, which speaks of active participation of the de facto complainant. The de facto complainant Satyagshu Chakrabarty filed a petition of complaint which was sent under Section 156(3) Cr. P.C. for investigation. The complaint petition inter alia states as follows:
That in 1969 there was an amicable oral agreement at London by and between Sri Satyanshu Chakraborty and Smt. Mitali Chakraborty on the one part and Smt. Dipali Das, a resident of London, on the other hand, that Smt. Dipali Das intended to purchase the aforesaid flat.
In January 1998 the de facto complainant along with his family came to India at the request of Smt. Dipali Das and key with some original documents of the said flat were handed over to Nisith Kumar Das, the Opposite Party No. 1 (the younger brother of Mr. Asit Kumar Das the husband of Smt. Dipali Das). Thereafter it was decided that the official transaction in respect of the said flat should be executed as and when Mrs. Das would come to India. After handing over the key and some original documents of the aforesaid flat to Sri Nisith Kumar Das the complainant left India from U.K. on 22nd February, 1988. Then sometime in December, 1990 the complainant was informed by his younger brother Samir Chakraborty that Nisith Das, the Opposite Party No. 1 after tampering some documents of the aforesaid flat and presumably with connivance of the Secretary of the aforesaid Co-operative Society trying to transfer the said flat to some unknown person. On 15.12.1990 he wrote to the Secretary of the aforesaid Housing Society intimating that there was no necessity to transfer the said flat.
On 16.7.1992 the complainant came to India and on inquiry came to know that Dr. Bikash Das the present petitioner managed to change the membership on the basis of an agreement for sale dated 27.12.1990 and one purported letter/application by the de facto complainant Sri Satyanshu Chakraborty for the change of membership. Police after investigation submitted chargesheet on 29.9.1995 under the aforesaid Sections and charged others including the petitioner. The petitioner states that it is basically the dispute is civil in nature and comes within the purview of the West Bengal Co-operative Societies Act, 1983, a special statute to resolve such a dispute. More so, the de facto complainant as plaintiff made a reference of the dispute before the learned Registrar of the Co-operative Society being Dispute Case No. 2/RCS 1992-93. In the aforesaid petition this accused petitioner was impleaded as the party and he filed his written statement wherein the facts leading to the purchase of the flat. Mr. Moitra was eventually referred to an arbitrator who upon hearing the parties dismissed the case on the ground that the plaintiff /de facto complainant has failed to prove his case as stated in the plaint. It has further been submitted that the petitioner is a bona fide purchaser of the wealth of the flat. He has neither defrauded the de facto complainant nor a party to any criminal conspiracy in furtherance of any common intention.
3. The petitioner filed one application before the learned Magistrate praying for discharge on the ground of non-maintainability of the case in view of Section 80 of the West Bengal Cooperative Societies Act, 1983 on 26.11.1998. But the same was dismissed hence the petition. Mr. Bikash Ranjan Bhattacharjee learned senior Counsel leading the team on behalf of the petitioner has submitted that (1) the dispute in between the parties is a civil dispute. (2) Even if it is taken for granted that the said flat was sold in collusion/connivance with other accused, the present petitioner cannot by any stretch of imagination be treated on the same footing like the others. (3) That the provisions under Section 482 Cr. P. C. be revoked in this instant case in hand as it is a fit case even if the entire F.I.R./case is taken for granted be a true one. (4) The ingredients of the offence cannot attribute on the part of this petitioner at all.
He has cited the following decisions in support of his contention.
1) 2000(4) Supreme Court Cases Page 164, Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.
2) : 2000CriLJ824 , G. Sagar Suri and Anr. v. State of U.P. and Ors.
3) : 2000CriLJ1487 , Medchl Chemical & Pharma (P) Ltd. v. Biological E. Ltd and Ors.
4.(A) The first case: [2000(4) Supreme Court Cases Page 164, Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.] is in respect of quashing of a criminal proceeding which was in connection with a case wherein the appellants agreed to sale their land to a Co-operative Society for consideration of 16 lakh. The respondent No. 2 Secretary of the Society paid a sum of Rs. 11 lakh to the appellant by way of drafts drawn in their favour and got the register sale deed in respect of the society executed by the appellants. Some other documents were also executed like that of indemnity deed and so on. The drafts on presentation were on account of insufficient of amount. Appellants after serving notice lodged a FIR alleging offence under Sections 406, 420 and 120B I.P.C. The appellants also filed three suits for realisation of the amount due to them. Shortly thereafter the respondent No. 2, Secretary of the Society, filed a complaint against the appellants alleging commission of offences under Sections 420, 423, 469, 504 and 120B I.P.C. on the allegation that by conspiring together all the accused have defaulted and cheated the Society and the complainant by giving false, concocted and wrongful information and assurances and thus they induced the complainant to enter into negotiations and also to advance them a heavy amount with their ulterior design to acquire wrongful gain. It was also contended on behalf of the appellant that the F.I.R. filed against them was a counter blast to the criminal case and that the civil suits filed by them against the Secretary of the Co-operative Society. Appellant sought to quash the complaint and the criminal proceeding which was initially declined but allowed by the Apex Court holding inter alia that the ingredients of cheating as provided under Section 415 were absent and that it was held that in such a situation continuance of the criminal proceeding against the accused, appellants would be an abuse of the process of the Court. Mr. Bhattacharjee learned senior advocate on behalf of the petitioner has contended that in the instant case where the ingredients as provided under Section 415 I.P.C. which defines cheating requires:--
'(1) deception of any person;
(2) (a) fraudulently or dishonestly inducing that person;
(3) (i) to deliver any property to any person, or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.' (B) Mr. Bhattacharjee goes on urging that the aforesaid definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if the were not so deceived.
(C) Aforesaid ingredient of the offence is completely absent as against the present petitioner where it is nowhere even remotely alleged that he intentionally induced anybody to deliver any property and/or fraudulently or dishonestly or by way of deception, consent of the said person has been taken. Admittedly position is that this petitioner responded to an advertisement admittedly on the representation of the advertiser and that of the Co-operative Societies functionaries he has gone through all the legal processes as provided under the Cooperative Societies Act and its connected rules and on payment of consideration money got the document executed.
5. The second case : 2000CriLJ824 , G. Sagar Suri and Anr. v. State of U.P and Ors. (supra) is all about a FIR which was sought to be quashed, lodged by General Manager of the Finance Company roping in the appellants and their family members in order to coerce them to refund the amount borrowed by them from the company. Consequent proceeding initiated for alleged offence under Section 406/420 I.P.C. wherein a complaint under Section 138 of Negotiable Instruments Act had already pending against the appellant and others wherein it was held on facts that as the Finance Company failed to make out as to be misrepresentation and the dishonest intentions being the ingredients of the particular section were not attributable as against the appellants.
6. The last case : 2000CriLJ1487 (Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and Ors. is in respect of a case where the fact of Section 415 and Section 118 deal with cheating with knowledge that wrongful loss may ensure to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or Section 420. In other wards (sic) mens rea is one of the essential ingredients of the offence of cheating under Section 420 which is one of the sections under which chargesheet has been submitted.
7. Mr. Bhattacharjee, learned senior advocate for the petitioner has further drawn the attention of the Court:
i) that the de facto complainant has, in the meanwhile, filed the case before the Registrar under Section 95 of the Co-operative Societies Act wherein he failed to get any relief,
ii) that the Co-operative Societies Act by itself is a self-contained Code and that an efficacious alternative remedy is available to the de facto complainant, and
iii) that this case in hand is nothing but a dispute civil in nature with a criminal clue.
8. Mr. Balai Mitra, learned P.P.-in-charge has drawn the attention of the Court in respect of Section 26 of the General Clauses Act which is reproduced hereunder:
'where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but was not liable to be punished twice for same offence.'
9. Mr. Mitra, in addition to placing reliance under the aforesaid provision of the General Clauses Act, has also relied on a reported decision in 1992 C Cr LR (Cal) 148, it was in respect of a prosecution of an employee of Raiganj Central Co-operative Bank Ltd., alleging that he received huge amounts of money from several depositors on diverse dates between 1984 and January 1985 but did not enter those deposits in the cash book and defalcated the entire amount. On the basis of the complaint lodged after investigation police submitted chargesheet under Section 409 I.P.C. before the learned special Judge, Raiganj. Different contentions were raised therein but it was so held that the offence under the Co-operative Societies Act, punishment for corrupt practices as provided under Sections 138, 139, 142 and 143 are the new ones. Those read together with the aforesaid provision under the General Clauses Act. Offences under two enactments were held to be permissible but the option of trial was under any one, i.e., in other words there cannot be any double jeopardy.
10. Sri Mitra learned P.P.-in-charge has made available the entire case docket where he has pinpointed para 17(1) of page 5 running page 138 of the CD wherein it is stated that Dr. Bikash Das 'managed to change the membership.' It was originally granted in favour of us (meaning Mr. Chakraborty). Reliance has been placed by Mr. Mitra there. On a close scrutiny of the aforesaid it appears that the Chakraborties (de facto complainant) and one Asit Das were neighbours in London. Sri Chakraborty received some amount from the aforesaid family of Das on expression of non-inclination of the aforesaid flat and agreed to make it over to the Das family. It was as early as in 1987. When they came in Calcutta in 1988 January together with the families of the Das at the instance of the Mr. Das, Sri Chakraborty made over the key of the flat and signed some necessary papers for the purposes of transfer of the aforesaid one in favour of Sri Das were made over to one Nisith Das who happened to be the brother of Mr. Nisith Das though Sri Chakraborty, the de facto complainant, did not see him before. Be that as it may, he did not issue any power-of-attorney in favour of Nisith Das and despite repeated requests Sri Das did not pay the balance amount for the purposes of transfer of the aforesaid flat in their favour. In the meanwhile he was informed about some arrangements of making transfer of the aforesaid flat to somebody else herein the purchaser, the petitioner. Be it noted as it appears within the four corners of the CD that Sri Chakraborty and Sri Das both are fighting litigations in a London Court over the same. On perusal of the entire materials collected in the CD read together with the FIR the plaint presented before the Registrar, Cooperative Society, and that the award made in connection with the same dated 4.8.1998, I am of the view that continuance of this criminal proceeding as against the present petitioner at least would be a futile one resulting in the palpable abuse of the process of the Court. The term used 'Dr. Bikash Das has managed to get it transferred' has been pointed out by Sri Mitra, learned P.P.-in-charge does not impress this Court as no clandestine deal is apparent and/or attributable on the part of this petitioner and more so when the matter relates to transfer of a co-operative flat some other official paraphernalia have got to be gone into and were gone into on his behalf using the term 'managed' and drawing the attention of this Court by Mr. Mitra in running page No. 138 of the CD.
11. Accordingly, the petition succeeds. The impugned order and the FIR stand quashed as against this present petitioner.
12. Let a copy of this order be sent down to the learned Court concerned.
13. Xerox certified copy of this judgment, if applied for, be sent to parties at the earliest.