Calcutta High Court (Appellete Side)
Amit Prakash Agarwal vs The State Of West Bengal & Anr on 14 January, 2025
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1084 of 2022
Amit Prakash Agarwal
VS.
The State of West Bengal & Anr.
For the Petitioner : Mr. Anirban Dutta,
Mr. Abhijit Sarkar.
For the State : Mr. Arijit Ganguly,
Mr. Anindya Sunder Chatterjee,
Ms. Sreemayi Roy.
Hearing concluded on : 14.01.2025
Judgment on : 14.01.2025
SHAMPA DUTT (PAUL), J. :
1. The present revisional application has been preferred praying for
quashing and/or setting aside of the impugned charge sheet
being no. 392/2020 dated 30.11.2020 under Sections
447/448/509/354/323/504/506/34 of the Indian Penal Code,
1860 arising out of Chanditala P.S. Case No. 325 of 2020 dated
22.10.2020 under Sections 427 /447 /448 /509 /354B /323
/325 /504 /506 /120B /34 of the Indian Penal Code, 1860
Page 2
pending before the Court of the learned Additional Chief Judicial
Magistrate at Serampore, Hooghly.
2. The allegations in the petition of complaint filed under Section
156 (3) Cr. PC is as follows:-
―That the accused persons have nexus with anti-
social elements and as the complainant and her
family members are poor, so, the accused persons
have been terrorizing them time and again and they
have been continuously threatening them with dire
consequences to grab the above mentioned
property. That on 12.10.2020 at about 1 p.m. to
1.30 p.m. the accused persons illegally assembled
with intention to grab the property at J.L. No. 69,
Mouza- Jay Kishnapur, R.S. Dag No. 679, L.R. Dag
No. 716, L.R. Khatian No. 2759 (which is still in
possession of the complainant) and made criminal
trespass. Somehow, the complainant got information
and protested their said act and they became violent
and intentionally started pushing the complainant.
Accused no. 1 Subal Ghorui, disrobed the
complainant by tearing her wearing apparels.
Accused no. 2 Partha Mal outraged the modesty of
the complainant by touching her private parts. The
accused no. 1 and 2 assembled with accused no. 3
Amit Prakash Agarwal attacked the complainant
with lathi and also hurt her with fist and blows. The
accused no. 3 accompanied with some anti-social
persons destroyed the fence of the said above
mentioned land and also demolished corps and
trees such as turmeric, segum, sishu etc. with JCP
by which the complaint sustained a loss more or less
of Rs. 50,000/- (Rupees Fifty Thousand) only and
lodged GDE being no. 692 dated 12.10.2020 before
the Chanditala P.S. authority.‖
3. The State has placed the case diary.
Page 3
4. The Hon’ble Supreme Court in Lalit Chaturvedi vs. State of
U.P, Criminal Appeal No. of 2023 (Arising out of SLP (Crl.)
No. 13485 of 2023):
―5. This Court, in a number of judgments, has
pointed out the clear distinction between a civil
wrong in the form of breach of contract, non-
payment of money or disregard to and violation
of the contractual terms; and a criminal offence
under Sections 420 and 406 of the IPC.
Repeated judgments of this Court, however, are
somehow overlooked, and are not being applied
and enforced. We will be referring to these
judgments. The impugned judgment dismisses
the application filed by the appellants under
Section 482 of the Cr.P.C. on the ground of
delay/laches and also the factum that the
chargesheet had been filed on 12.12.2019. This
ground and reason is also not valid.
6. In ―Mohammed Ibrahim v. State of Bihar‖,
this Court had referred to Section 420 of the
IPC, to observe that in order to constitute an
offence under the said section, the following
ingredients are to be satisfied:–
―18. Let us now examine whether the
ingredients of an offence of cheating are made
out. The essential ingredients of the offence of
―cheating‖ are as follows:
(i) deception of a person either by making a
false or misleading representation or by
dishonest concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that
person to either deliver any property or to
consent to the retention thereof by any person
or to intentionally induce that person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived;
and
Page 4
(iii) such act or omission causing or is likely to
cause damage or harm to that person in body,
mind, reputation or property.
19. To constitute an offence under section 420,
there should not only be cheating, but as a
consequence of such cheating, the accused
should have dishonestly induced the person
deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a
valuable security (or anything signed or sealed
and which is capable of being converted into a
valuable security).‖
7. Similar elucidation by this Court in ―V.Y.
Jose v. State of Gujarat‖, explicitly states that a
contractual dispute or breach of contract per
se should not lead to initiation of a criminal
proceeding. The ingredient of ‗cheating’, as
defined under Section 415 of the IPC, is
existence of a fraudulent or dishonest intention
of making initial promise or representation
thereof, from the very beginning of the formation
of contract. Further, in the absence of the
averments made in the complaint petition
wherefrom the ingredients of the offence can be
found out, the High Court should not hesitate to
exercise its jurisdiction under Section 482 of the
Cr.P.C. Section 482 of the Cr.P.C. saves the
inherent power of the High Court, as it serves a
salutary purpose viz. a person should not
undergo harassment of litigation for a number
of years, when no criminal offence is made out.
It is one thing to say that a case has been made
out for trial and criminal proceedings should not
be quashed, but another thing to say that a
person must undergo a criminal trial despite the
fact that no offence has been made out in the
complaint. This Court in V.Y. Jose (supra)
placed reliance on several earlier decisions in
―Hira Lal Hari Lal Bhagwati v. CBI‖, ―Indian Oil
Corporation v. NEPC India Ltd.‖, ―Vir Prakash
Sharma v. Anil Kumar Agarwal‖ and ―All Cargo
Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain‖.
Page 5
10. The charge sheet also refers to Section 406
of the IPC, but without pointing out how the
ingredients of said section are satisfied. No
details and particulars are mentioned. There
are decisions which hold that the same act or
transaction cannot result in an offence of
cheating and criminal breach of trust
simultaneously. For the offence of cheating,
dishonest intention must exist at the inception
of the transaction, whereas, in case of criminal
breach of trust there must exist a relationship
between the parties whereby one party entrusts
another with the property as per law, albeit
dishonest intention comes later. In this case
entrustment is missing, in fact it is not even
alleged. It is a case of sale of goods. The
chargesheet does refer to Section 506 of the IPC
relying upon the averments in the complaint.
However, no details and particulars are given,
when and on which date and place the threats
were given. Without the said details and
particulars, it is apparent to us, that these
allegations of threats etc. have been made only
with an intent to activate police machinery for
recovery of money.
11. It is for the respondent no. 2/complainant –
Sanjay Garg to file a civil suit. Initiation of the
criminal process for oblique purposes, is bad in
law and amounts to abuse of process of law.‖
5. In Naresh Kumar Vs The State Of Karnataka., Criminal
Appeal No. …………….. of 2024, (Arising Out Of SLP (Crl.)
No. 1570 of 2021), on 12th March, 2024, the Supreme Court
held as follow:-
―6. In the case of Paramjeet Batra v. State of
Uttarakhand (2013) 11 SCC 673, this Court
recognized that although the inherent powers of
a High Court under Section 482 of the Code of
Criminal Procedure should be exercised
sparingly, yet the High Court must not hesitate
in quashing such criminal proceedings which are
Page 6essentially of a civil nature. This is what was
held:
―12. While exercising its jurisdiction
under Section 482 of the Code the High Court
has to be cautious. This power is to be used
sparingly and only for the purpose of preventing
abuse of the process of any court or otherwise to
secure ends of justice. Whether a complaint
discloses a criminal offence or not depends upon
the nature of facts alleged therein. Whether
essential ingredients of criminal offence are
present or not has to be judged by the High
Court. A complaint disclosing civil transactions
may also have a criminal texture. But the High
Court must see whether a dispute which is
essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil
remedy is available and is, in fact, adopted as
has happened in this case, the High Court
should not hesitate to quash the criminal
proceedings to prevent abuse of process of the
court.‖ (emphasis supplied) Relying upon the
decision in Paramjeet Batra (supra), this Court
in Randheer Singh v. State of U.P. (2021) 14 SCC
626, observed that criminal proceedings cannot
be taken recourse to as a weapon of
harassment. In Usha Chakraborty & Anr. v.
State of West Bengal & Anr. 2023 SCC OnLine
SC 90, relying upon Paramjeet Batra (supra) it
was again held that where a dispute which is
essentially of a civil nature, is given a cloak of a
criminal offence, then such disputes can be
quashed, by exercising the inherent powers
under Section 482 of the Code of Criminal
Procedure.
7. Essentially, the present dispute between the
parties relates to a breach of contract. A mere
breach of contract, by one of the parties, would
not attract prosecution for criminal offence in
every case, as held by this Court in Sarabjit
Kaur v. State of Punjab and Anr (2023) 5 SCC
360. Similarly, dealing with the distinction
between the offence of cheating and a mere
breach of contractual obligations, this Court,
Page 7in Vesa Holdings (P) Ltd. v. State of Kerala,
(2015) 8 SCC 293, has held that every breach of
contract would not give rise to the offence of
cheating, and it is required to be shown that the
accused had fraudulent or dishonest intention at
the time of making the promise.
8. In the case at hand, the dispute between the
parties was not only essentially of a civil nature
but in this case the dispute itself stood settled
later as we have already discussed above. We
see no criminal element here and consequently
the case here is nothing but an abuse of the
process. We therefore allow the appeal and set
aside the order of the High Court dated
02.12.2020. The criminal proceedings arising out
of FIR No.113 of 2017 will hereby stand
quashed.‖
6. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and Ors.,
2022 LiveLaw (SC) 993, Criminal Appeal No(s). ……… of 2022
(Arising out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court
held:-
―15. This Court has an occasion to consider
the ambit and scope of the power of the
High Court under Section 482 CrPC for
quashing of criminal proceedings in Vineet
Kumar and Others vs. State of Uttar
Pradesh and Another, (2017) 13 SCC
369 decided on 31st March, 2017. It may
be useful to refer to paras 22, 23 and 41 of
the above judgment where the following
was stated:
―22. Before we enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under
Section 482 CrPC vested in the High Court.
Section 482 CrPC saves the inherent power
of the High Court to make such orders as
may be necessary to give effect to any order
Page 8under this Code, or to prevent abuse of the
process of any court or otherwise to secure
the ends of justice.
23. This Court time and again has
examined the scope of jurisdiction of the
High Court under Section 482 CrPC and laid
down several principles which govern the
exercise of jurisdiction of the High Court
under Section 482 CrPC. A three-Judge
Bench of this Court in State of Karnataka v.
L. Muniswamy (1977) 2 SCC 699 held that
the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would
be an abuse of the process of the Court or
that the ends of justice require that the
proceeding ought to be quashed. In para 7
of the judgment, the following has been
stated :
‗7. … In the exercise of this wholesome
power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would
be an abuse of the process of the court or
that the ends of justice require that the
proceeding ought to be quashed. The saving
of the High Court’s inherent powers, both in
civil and criminal matters, is designed to
achieve a salutary public purpose which is
that a court proceeding ought not to be
permitted to degenerate into a weapon of
harassment or persecution. In a criminal
case, the veiled object behind a lame
prosecution, the very nature of the material
on which the structure of the prosecution
rests and the like would justify the High
Court in quashing the proceeding in the
interest of justice. The ends of justice are
higher than the ends of mere law though
justice has got to be administered according
to laws made by the legislature. The
compelling necessity for making these
observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent
Page 9powers of the High Court to do justice,
between the State and its subjects, it would
be impossible to appreciate the width and
contours of that salient jurisdiction.’
41. Inherent power given to the High Court
under Section 482 CrPC is with the purpose
and object of advancement of justice. In
case solemn process of Court is sought to be
abused by a person with some oblique
motive, the Court has to thwart the attempt
at the very threshold. The Court cannot
permit a prosecution to go on if the case falls
in one of the categories as illustratively
enumerated by this Court in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC
335. Judicial process is a solemn
proceeding which cannot be allowed to be
converted into an instrument of operation or
harassment. When there are materials to
indicate that a criminal proceeding is
manifestly attended with mala fides and
proceeding is maliciously instituted with an
ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction under
Section 482 CrPC to quash the proceeding
under Category 7 as enumerated in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC
335 which is to the following effect :
‗102. (7) Where a criminal proceeding is
manifestly attended with mala fides and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.’ Above Category 7 is
clearly attracted in the facts of the present
case. Although, the High Court has noted
the judgment of State of Haryana v. Bhajan
Lal 1992 Supp (1) SCC 335 but did not
advert to the relevant facts of the present
case, materials on which final report was
submitted by the IO. We, thus, are fully
satisfied that the present is a fit case where
the High Court ought to have exercised its
Page 10jurisdiction under Section 482 CrPC and
quashed the criminal proceedings.‖
16. The exposition of law on the subject
relating to the exercise of the extra-ordinary
power under Article 226 of the Constitution
or the inherent power under Section 482
CrPC are well settled and to the possible
extent, this Court has defined sufficiently
channelized guidelines, to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.
This Court has held in para 102 in State of
Haryana and Others v. Bhajan Lal and
Others, 1992 Supp. (1) 335 as under :
―102. In the backdrop of the interpretation
of the various relevant provisions of the
Code under Chapter XIV and of the
principles of law enunciated by this Court in
a series of decisions relating to the exercise
of the extraordinary power under Article
226 or the inherent powers under Section
482 of the Code which we have extracted
and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose
Page 11a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of
a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.‖
17. The principles culled out by this Court
have consistently been followed in the
recent judgment of this Court in Neeharika
Page 12Infrastructure Pvt. Ltd. v. State of
Maharashtra and Others, 2021 SCC
Online SC 315.‖
7. The present case falls under category 1, 3 and 7 of Para 102 of
Bhajan Lal (Supra).
8. Considering the materials on record and the case diary, it
appears that prima facie there is a property dispute between
the parties in this case which appears to be civil in nature.
9. There are no materials in the case diary to prima facie
substantiate the offences alleged against the petitioners in the
present case.
10. As such permitting the present case to proceed to trial shall
amount to an abuse of the process of law and as such the
proceeding in the present case is liable to be quashed.
11. CRR 1084 of 2022 is thus allowed.
12. The proceeding being charge sheet no. 392/2020 dated
30.11.2020 under Sections 447 /448 /509 /354 /323 /504
/506 /34 of the Indian Penal Code, 1860 arising out of
Chanditala P.S. Case No. 325 of 2020 dated 22.10.2020 under
Sections 427 /447 /448 /509 /354B /323 /325 /504 /506
/120B /34 of the Indian Penal Code, 1860 pending before the
Page 13
Court of the learned Additional Chief Judicial Magistrate at
Serampore, Hooghly, is hereby quashed in respect of the
petitioner namely Amit Prakash Agarwal.
13. All connected application, if any, stands disposed of.
14. Interim order, if any, stands vacated.
15. Let a copy of the Judgment be sent to the learned trial court at
once.
16. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties, expeditiously after complying with all
necessary legal formalities.
[Shampa Dutt (Paul), J.]