Calcutta High Court (Appellete Side)
Zarin Momim Khan @ Zareen Khan vs The State Of West Bengal & Anr on 22 January, 2025
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
Justice Bibhas Ranjan De
C.R.R. 4698 of 2022
IA NO:CRAN 2 of 2023
CRAN 3 of 2023
(Assigned)
Zarin Momim Khan @ Zareen Khan
Vs.
The State of West Bengal & Anr.
For the Petitioner :Mr. Ayan Bhattacherjee, Sr. Adv.
Ms. Priyanka Agarwal, Adv.
Ms. Priyanka Sarkar, Adv.
For the Opposite party no. 2 :Mr. Sourav Chatterjee, Sr. Adv.
Mr. Satadru Lahiri, Adv.
Mr. Jyotirmoy Talukdar, Adv.
For the State :Mr. Madhusudan Sur, Adv.
Mr. Dipankar Pramanick, Adv.
Last Hearing on :05.12.2024
Judgment on :22.01.2025
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Bibhas Ranjan De, J.
1. This Court is dealing with an application invoking the
inherent power under Section 482 of the Code of Criminal
Procedure (for short Cr.P.C) for quashment of the FIR being
Narkeldanga P.S. Case No. 254 of 2018 dated 27.11.2018
under Sections 406/420/506/120B of the Indian Penal Code
(for short IPC) presently pending before the Court of Ld.
Additional Chief Judicial Magistrate (for short ACJM),
Sealdah.
2. The impugned FIR has its genesis from the purported
complaint dated 16.11.2018 lodged by the opposite party no.
2 herein against the petitioner and the other co-accused. The
main allegation leveled in the purported FIR is to the effect
that the accused persons entered into a criminal conspiracy
and in pursuance to that conspiracy the petitioner
deliberately failed to appear as a guest artist at eight(8) puja
pandals during the festival of Kali Puja on 05.11.2018 as
mutually agreed and organized by the opposite party no. 2
herein thereby committing criminal breach of trust and
causing wrongful loss to the opposite party no. 2 herein to
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the tune of Rs. 42 lacs, and moreover the petitioner even
threatened to defame and criminally intimidate the opposite
party no. 2 herein.
3. On the basis of such complaint, Narkeldanga Police Station
started investigation and during the course of investigation
the investigating officer made a prayer to the ACJM Sealdah
for adding Section 420 of the IPC to the original charge
which was added vide Order dated 27.05.2019 on the basis
of a “local petition”. Eventually the investigating agency after
purported investigation filed a Charge sheet being no. 352 of
2023 under Sections 406/420/120B/506 of the IPC against
the petitioner and the other co-accused.
Argument Advanced:-
4. Ld. Senior Counsel, Mr. Ayan Bhattacherjee, appearing on
behalf of the petitioner has mainly canvassed his argument
on the ground that the allegations leveled in the impugned
FIR would make it evident that a pure civil dispute was given
the cloak of criminality. Mr. Bhattacherjee further added that
a mere failure to appear in the Puja Pandal as a guest cannot
make out an offence of cheating as the quintessential
ingredient of Section 420 of the IPC is initial deception and
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mere non-appearance before a Puja Pandal cannot infer
initial deception.
5. Before parting with, Mr. Bhattacherjee has further submitted
that if a dispute between the parties is essentially a civil
dispute resulting from a breach of contract on the part of the
appellants by non-refunding the amount of advance then the
same would not constitute an offence of cheating.
6. In support of his contention, Mr. Bhattacherjee has relied on
the following cases:-
Raj Kapoor & Ors. Vs. State & Ors. reported in (1980)
1 SCC 43 All Cargo Movers (India) Private Limited Vs. Dhanesh
Badarmal Jain & Anr. reported in (2007) 14 SCC 776 Alpic Finance Ltd Vs. P. Sadasivan & Anr. reported in
(2001) 3 SCC 513 Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. reported in
(2009) 14 SCC 696 Inder Mohan Goswami & Anr. Vs. State of
Uttaranchal & Ors. reported in AIR 2008 C 251
5 Mahmood Ali & Ors. Vs. State of Uttar Pradesh & Ors.
reported in (2023) 10 SCALE 523
Lalit Chaturvedi and Ors. v. State of Uttar Pradesh 5
and Anr reported in (2024) SCC Online SC 171
Uma Shankar Gopalika Vs. State of Bihar & Anr
reported in (2005) 10 SCC 336
Satishchandra Ratanlal Shah Vs. State of Gujarat &
Anr., reported in (2019) 9 SCC 148)
Motilal Chakravarty Vs. The King, reported in A.I.R.
(36) 1949 Calcutta 586
Joseph Salvaraj A. v. State of Gujarat and Others.
reported in (2011) 7 SCC 59
7. Mr. Bhattacharjee by relying on the above mentioned
judgments has tried to take support of the following
observations of the Court made therein, which are to the
effect that :-
Mere technicality cannot stand in the way of exercise of
power under Section 482 of the Cr.P.C.
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If the allegations made in the complaint petition, even if
given face value and taken to be correct in its entirety, do
not disclose an offence then Court should exercise
inherent power. For the said purpose, Court may not only
take into consideration the admitted facts but it is also
permissible to look into the pleadings.
Breach of contract simpliciter does not constitute an
offence. For the said purpose, allegations in the complaint
petition must disclose the necessary ingredients therefor.
For exercising the inherent jurisdiction of this Court, it is
impermissible also to look to the admitted documents.
Criminal proceedings should not be encouraged, when it is
found to be mala fide or otherwise an abuse of the process
of the court. Superior courts while exercising this power
should also strive to serve the ends of justice.
Jurisdiction under Section 482 of the Code has to be
exercised with great care. In exercise of its jurisdiction the
High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature,
has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies available
7in law. Before issuing process a criminal court has to
exercise a great deal of caution. For the accused it is a
serious matter. This Court has laid certain principles on
the basis of which the High Court is to exercise its
jurisdiction under Section 482 of the Code. Jurisdiction
under this section has to be exercised to prevent abuse of
the process of any court or otherwise to secure the ends of
justice.
Further, the observation that there is no provision for
granting exemption from personal appearance prior to
obtaining bail, is not correct, as the power to grant
exemption from personal appearance under the Code
should not be read in a restrictive manner as applicable
only after the accused has been granted bail. The Hon’ble
Apex Court in Maneka Sanjay Gandhi v. Rani
Jethmalani held that the power to grant exemption from
personal appearance should be exercised liberally, when
facts and circumstances require such exemption. Section
205 states that the Magistrate, exercising his discretion,
may dispense with the personal attendance of the accused
while issuing summons, and allow them to appear
8through their pleader. While provisions of the Code are
considered to be exhaustive, cases arise where the Code is
silent and the court has to make such order as the ends of
justice require. In such cases, the criminal court must act
on the principle, that every procedure which is just and
fair, is understood as permissible, till it is shown to be
expressly or impliedly prohibited by law.
Provisions of Oaths Act do not and cannot apply in case of
filing an application under Section 438 Cr.P.C. The Oaths
Act applies for giving evidence before any court including a
criminal court which has been explained by the Supreme
Court in Laxmipat Choraria’s Case (supra) Section 4(2)
of the Oaths Act, 1969 provides that ‘nothing in this
section shall render it lawful to administer, in a criminal
proceeding, an oath or affirmation to the accused person,
unless he is examined as a witness for the defence, or
necessary to administer to the official interpreter of any
court, after he has entered on the execution of the duties
of his office, an oath or affirmation that he will faithfully
discharge those duties.
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8. Per contra, Ld. Senior Counsel, Mr. Sourav Chatterjee,
appearing on behalf of the opposite party no. 2 with regard to
the maintainability of the instant application has submitted
that the revision application which has been affirmed by the
petitioner who is an accused in the subject criminal
proceeding is not legally sustainable in view of the embargo
as laid down under Section 4 (2) of the Oaths Act.
9. Mr. Chatterjee has further contended that the civil suit being
no. 694 of 2019 before the Hon’ble High Court Bombay
cannot come in the way of continuation of the instant
criminal case as it is admitted position of law that in the
given set of circumstances both civil and criminal cases can
run concurrently.
10. Mr. Chatterjee has further submitted that the facts
narrated in the FIR, charge sheet and materials collected
during investigation substantially makes out prima facie
case against the petitioner for the alleged offences and
therefore there is no requirement to abruptly interfere with
the proceeding at the very threshold by invoking jurisdiction
under Section 482 of the Cr.P.C.
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11. Therefore, Mr. Chatterjee has tried to make this Court
understand that the petitioner has failed to show that further
continuance of the proceeding is not maintainable/permitted
in view of any expressed legal bar or that the facts delineated
in the FIR and charge sheet does not satisfy the ingredients
of any offence punishable under the law of the land and
within established legal framework.
12. In order to substantiate his argument, Mr. Chatterjee has
relied on the following cases:-
Susanta Kumar Pal Vs State of WB (2023) reported in
SCC OnLine Cal 482
K. Neelaveni Vs. State (2010) reported in 11 SCC 607
Mary Pushpam Vs. Telvi Curusumary and Ors. reported
in (2024) 3 SCC 224
Kaptan Singh Vs. State of U.P. reported in (2021) 9
SCC 35
State of M.P. Vs. Yogendra Singh Jadon reported in
(2020) 12 SCC 588
Kamal Shivaji Pokarnekar Vs. State of Maharashtra,
reported in (2019) 14 SCC 350
CBI Vs. Arvind Khanna reported in (2019) 10 SCC 686
11 Jindal India Limited Vs. State of WB-SLP [(Cri.)
005779-005780/2023]
Sukumar Roy Vs. State of West Bengal reported in
(2024) SCC OnLine Cal 1929
Sk. Sultan Ahamed and Ors. Vs. State of West Bengal
and Anr. reported in (2023) SCC OnLine (Cal) 5359
State of Orissa Vs. Debendra Nath Padhi [Special
Bench], reported in (2005) 1 SCC 568
State of M.P. Vs. Awadh Kishore Gupta reported in
(2004) SCC 691
Priti Saraf and Another VS State of NCT of Delhi-
reported in (2021) 16 SCC 142
Kaptan Singh VS State of Uttar Pradesh & Ors.
reported in (2021) 9 SCC 35
Amit Kapoor VS. Ramesh Chander reported in (2012)
9 SCC 460 Indian Oil Corporation VS NEPC India Ltd
& Ors. reported in (2006) 6 SCC 736
Royal Medical Trust vs. reported in UOI (2017)16 SCC
605
Union of India vs. Dhanwanti Devi reported in (1996)6
SCC 44
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13. Through the above referred cases Mr. Chatterjee has
tried to take assistance of the following ratios in order to
further substantiate his argument:-
While quashing a criminal proceeding the High Court
cannot enter into the merits of the allegation.
Exercise of powers under Section 482 CrPC to quash the
proceedings is an exception and not a rule. It is further
observed that inherent jurisdiction under Section 482
CrPC though wide is to be exercised sparingly, carefully
and with caution, only when such exercise is justified by
tests specifically laid down in the section itself. It is
further observed that appreciation of evidence is not
permissible at the stage of quashing of proceedings in
exercise of powers under Section 482 CrPC.
While exercising jurisdiction under Section 482 of the
Code, it is not permissible for the Court to act as if it was
a trial Judge. Even when charge is framed at that stage,
the Court has to only prima facie be satisfied about
existence of sufficient ground for proceeding against the
accused. For that limited purpose, the Court can evaluate
material and documents on records but it cannot
13appreciate evidence. The Court is not required to
appreciate evidence to conclude whether the materials
produced are sufficient or not for convicting the accused.
When the materials relied upon by a party are required to
be proved, no inference can be drawn on the basis of those
materials to conclude the complaint to be unacceptable.
The Court should not act on annexures to the petitions
under Section 482 of the Code, which cannot be termed as
evidence without being tested and proved.
The ingredients of the offences under Sections 406 and
420 IPC cannot be said to be absent on the basis of the
allegations in the complaint/FIR/charge-sheet. Whether
the allegations in the complaint are otherwise correct or
not, has to be decided on the basis of the evidence to be
led during the course of trial. Simply because there is a
remedy provided for breach of contract or arbitral
proceedings initiated at the instance of the appellants,
that does not by itself clothe the court to come to a
conclusion that civil remedy is the only remedy, and the
initiation of criminal proceedings, in any manner, will be
an abuse of the process of the court for exercising
14inherent powers of the High Court under Section 482
CrPC for quashing such proceedings.
It is well settled in law that the ratio of a decision has to
be understood regard being had to its context and factual
exposition. The ratiocination in an authority is basically
founded on the interpretation of the statutory provision. If
it is based on a particular fact or the decision of the Court
is guided by specific nature of the case, it will not amount
to the ratio of the judgment. Every judgment must be read
as applicable to the particular facts proved, or assumed to
be proved, since the generality of the expressions which
may be found there are not intended to be expositions of
the whole law, but are governed and qualified by the
particular facts of the case in which such expressions are
to be found.
14. Ld. Counsel, Mr. Madhusudan Sur, appearing on behalf
of the State has contended that there is sufficient material
collected during investigation to prima facie establish a case
against the petitioner and thereby duly submits that the
prayer of the petitioner for quashment of impugned FIR is
not legally justified.
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Analysis:-
15. Before delving deep into the merit of this case, I would
like to discuss the general and consistent law laid down by
the Honb’le Apex Court in exercising extra ordinary
jurisdiction under Section 482 of the Cr.P.C. In a number of
celebrated judgements the Hon’ble Apex Court has handed
down some vital elements which are as follows:-
The inherent power of High Court under Section 482 of
Cr.P.C for quashing has to be exercised sparingly with
circumspection and in the rarest of rare cases.
Exercise of inherent power under Section 482 of Code of
Criminal Procedure (for short Cr.P.C) is not the rule but it is
an exception. The exception is applied only when it is
brought to the notice of the Court that grave miscarriage of
justice would be committed if the trial is allowed to proceed
where the accused would be harassed unnecessarily if the
trial is allowed to linger when prima facie it appears to
Court that the trial would likely be ended in acquittal.
16. The High Court in exercise of it’s jurisdiction under
Section 482 of Cr.P.C does not function either as a Court of
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appeal or revision, also having no power to conduct a mini
trial and only the power which can be exercised is namely,
a) to give effect to an order under the Cr.P.C,
b) to prevent abuse of the process of the Court, and
c) to otherwise secure the ends of justice.
17. At the stage of discharge and /or while exercising the
power under Section 482 of the CrPC, the Court has a very
limited jurisdiction and is only required to consider “whether
any sufficient material is available to proceed further against
the accused for which the accused is required to be tried or
not”. In addition to that the Hon’ble Apex Court has also held
that at the initiation of the Criminal Proceedings,
whether the criminal proceedings are malicious or not, is
not required to be considered at the stage of quashing as
it is required to be considered only at the conclusion of
the Trial. The only material requirement which is to be
considered is a prima facie case and the material collected
during investigation, which warrants the accused to be tried.
18. Now coming to the case at hand, a careful perusal of the
FIR as well as the materials collected during investigation
would suggest that the petitioner who is a cine artist was to
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appear as guest at eight (8) Puja Pandals on 5th November,
2018 during Kali Puja. For her appearance the petitioner
allegedly collected Rs. 12 lacs from Phoenix Talent
Management which is represented by the opposite party no.
2 herein. But, on the said date, the petitioner failed to appear
as a guest artist, thereby causing wrongful loss to the
complainant/opposite party no. 2 herein to the tune of Rs.
42 lacs and also the petitioner allegedly threatened the
complainant with dire consequences whenever the opposite
party no. 2 tried to approach the petitioner for his money.
Upon receipt of the compliant police started investigation
and during the course of investigation police collected a
number of documents including the copies of the flight
tickets, bank statements against the amount paid to the
account of the accused, the bookings made in the name of
the accused in a high profile hotel in Kolkata for her
scheduled stay during the period of visit. The photocopies of
the claims made by the club for non appearance of the
petitioner were also collected.
19. Therefore, in common parlance it can easily be assessed
that admittedly there was a contractual relationship by and
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between the parties for performance in exchange of monetary
consideration. So, the main contentious issue in this
revision application revolves around the sole question that
whether a breach of contract can attract criminal
prosecution for cheating.
20. It is also pertinent to mention here that opposite party
no. 2 herein admittedly filed a civil suit which is presently
pending before the City Civil Court, Mumbai. A cumulative
reading of the complaint as well as the materials collected
during investigation clearly boils down to an admitted
position of fact that there was a commercial relationship by
and between the parties. The petitioner was to appear as a
guest artist for visit to various Puja Pandals. She even
obtained the boarding pass to take the flight but whatever be
the reason she eventually failed to come as per the contract
for which she received an advance amount to the tune of Rs.
12 lacs from M/s. Pheonix Talent Management. But, after
her failure to comply with the contract she did not refund the
advance amount. This whole course of action, in my opinion,
clearly demonstrates an issue of a breach of contract.
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21. In this regard, I think it would be profitable to discuss
the settled proposition of law enunciated by the Hon’ble Apex
Court in a plethora of decisions which is to the effect that A
breach of contract does not give rise to criminal prosecution
for cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction. Merely an
allegation of failure to keep up promise will not be enough to
initiate criminal proceedings. From the facts available on
record, it is evident that the opposite party no. 2 herein
approached the petitioner to come as a guest artist.
Accordingly, this proposal was accepted by the petitioner but
ultimately she committed a breach. This whole course of
action, in my humble opinion at best can be termed to be a
breach of contract for which admittedly a civil suit is
pending. The criminal courts are not meant to be used for
settling scores or pressurise parties to settle civil disputes.
Wherever ingredients of criminal offences are made out,
criminal courts have to take cognizance. The complaint in
question on the basis of which FIR was registered clearly
spells out the commercial nature of relationship by and
between the parties therefore allowing the instant criminal
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proceeding to continue would be an abuse of process of the
Court.
22. Now referring to another important plea raised on behalf
of the opposite party no. 2 regarding the fact that the
revision application has not been filed in proper form and is
affirmed by an unauthorized person in violation of the Oaths
Act, Mr. Chatterjee has tried to make this Court understand
that the accused is debarred from affirming an affidavit in
view of the embargo in terms of Section 4(2) of the Oaths Act.
He has further contended that mere compliance of notice
under Section 41A of the Cr.P.C. does not establish the fact
that the petitioner was personally present before the Notary
Public while affirming the affidavit. In support of this
contention, Mr. Chatterjee has relied on the case of
Sushanta Kumar Paul (supra). Per contra, Mr.
Bhattacherjee has vehemently denied this argument and has
submitted that the petitioner duly appeared before the
investigating officer on November 12, 2022 on the same date
on which the affidavit was affirmed. In support of this
contention, Mr. Bhattacherjee has relied on the affidavit
annexed with the written notes of arguments wherein the
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petitioner has affirmed her travel to Kolkata with supporting
documents. In this regard, Ld. Senior Counsel appearing on
behalf of the petitioner has further argued that an authorized
representative can perform affirmation of an affidavit on
behalf of the principal in connection with a criminal
proceeding by relying on GKW Limited (supra). Alternatively,
even if the contention of the opposite party no. 2 is
considered as gospel truth, in my humble opinion, still this
issue cannot be said to be a glaring irregularity which can
attract dismissal of the entire application.
23. In the aforesaid view of the matter, the instant criminal
revision application being no. CRR 4698 of 2022 stands
allowed.
24. As a sequel, the impugned FIR being Narkeldanga P.S.
Case No. 254 of 2018 dated 27.11.2018 under Sections
406/420/506/120B of the IPC stands quashed.
25. All connected applications, if there be any, stand
disposed of accordingly.
26. Interim order, if there be any, stands vacated.
27. Case diary be returned.
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28. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website
of this Court.
29. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]