Now, it is to be ascertained whether the contents of the FIR
discloses the ingredient of offence under Section 509 IPC. The essential ingredients of
the offences under Section 509 IPC are as follows:
1. The accused uttered some words, or made some sounds or
gesture or exhibited any object or intruded upon the privacy of a woman; 2. The accused
must have intended that the words so uttered or the sound or gesture so made or the
object so exhibited should be heard or seen respectively by the woman; 3. The accused
thereby intended to insult the modesty of the woman.
Such essential ingredients which constitute an offence under
Section 509 IPC are also absent in the petition of complaint.
In the High Court at Calcutta
(Criminal Revisional Jurisdiction)
Appellate Side
CRR No. 2947 of 2011
Sumit Kumar Gupta & Ors.
vs.
State
CORAM : The Hon’ble Mr. Justice Dipak Saha Ray
Judgment delivered on : 13.7.2012
Dipak Saha Ray, J.:
The present case arises out of an application under Section
482 of the Code of Criminal Procedure 1973 for quashing the criminal proceeding of G.R.
case No. 974 of 2011 arising out of Siliguri P.S. Case No. 309 of 2011 dated 7.6.11 under
Sections 406/418/420/426/447/506/509 of the Indian Penal Code which is pending before
the learned Chief Judicial Magistrate, Siliguri.
The relevant facts of the present case are, in a nutshell, as
follows:
Opposite party No.
2 herein as defacto complainant filed a
petition of complaint before the learned Chief Judicial Magistrate, Siliguri which was sent
to the O.C., Siliguri P.S. for investigation after treating the same as FIR under Section
156(3) of the Code of Criminal Procedure. Accordingly, Siliguri P.S. case No. 309 of 2011
dated 7.6.2011 was started. In the said petition of complaint the defacto complainant
alleged inter alia that in 2009, she sold the roof on the 2nd floor of her building with a
right to raise construction on the said roof and executed a deed of sale in favour of the
accused persons with the terms and conditions that Sumit Kr. Gupta (one of the accused
persons/one of the petitioners herein) would construct the common entrance and
staircase upto 2nd Floor with marble finishing.
But inspite of such condition, the said
accused persons did not make such construction in spite of requests. On the contrary,
they threatened the defacto complainant with dire consequences and abused her with
filthy languages. Accordingly, the matter was reported to the Siliguri P.S. vide Siliguri P.S.
G.D. Entry No. 1725 of 2011 dated 22.2.2011. It was further alleged in the said petition
of complaint that without consent of the defacto complainant the accused persons
installed a water tank with an intention to restrain her and her family members and
tenants from using the common passage.
When the matter was protested by the
youngest daughter of the defacto complainant, the accused persons threatened her with
dire consequences.
It was alleged that the accused persons induced the defacto
complainant by giving false promises and assurance that they would construct the
common passage and staircase with marble finishing and thereby managed to purchase
the roof on the 2nd floor and constructed the flat thereon and in that manner they cheated
her. It was also alleged that the defacto complainant had been to the Siliguri P.S. to
lodge the complaint with the O.C., Siliguri P.S., but the O.C. refused to start any case.
Accordingly, she filed the petition of complaint before the learned court.
It is the case of the petitioners that the opposite party No. 2
herein has filed a case with an ulterior motive to harass them. It is also alleged that the
dispute between the parties is purely civil in nature and accordingly, the petitioners filed a
title suit before the learned Civil Judge, (Sr. Div.), Siliguri which was registered as T.S. No.
21 of 2011 and got an order of ad interim injunction in their favour. It is also the case of
the petitioner that the defacto complainant/opposite party No. 2 also filed a civil suit
before the Civil Judge, Jr. Div., Siliguri which was registered as O.C. Suit No. 39 of 2011.
It is further argued that the petition of complaint does not disclose necessary ingredient
of any criminal offence.
It is submitted by the learned counsel for the petitioners that
the petition of complaint does not contain the ingredient of alleged offences under
Sections 406/418/420/426/447/506/509 of the Indian Penal Code. It is further submitted
by the learned counsel that the civil suits are pending between the parties in respect of
the sale deed executed by the defacto complainant in favour of the accused persons.
It
is further submitted by learned counsel for the petitioners that the dispute between them
are civil in nature and civil remedy is available and for that reason civil suits have been
filed by them.
There is no controversy that the roof of the 2nd floor of the
building of the O.P. No. 2 was sold in favour of the accused persons by executing a deed
of conveyance. There is also no dispute that there was agreement between the parties to
the effect that the accused persons would construct common passage and staircase upto
2nd floor with marble finishing. There does not appear to be any controversy that both
the parties have initiated civil suits against each other which are still pending.
The controversy mainly relates to the question as to: i)
whether the petition of complaint was filed against the accused persons mala fide and
with an ulterior motive and ii) whether the allegations made in the complaint prima facie
disclose commission of the offences as alleged in the FIR.
Now, after taking into consideration all relevant facts and
materials and giving due regard to the submission made by the learned counsel for the
petitioners, it appears that three points are required to be considered i) whether there is
sufficient ground for proceeding against the petitioner/accused person ii) whether there is
an abuse of the process of the court and iii) whether ends of justice demands quashing of
the proceedings.
In the petition of complaint, it has been alleged that the
accused persons by false promise and assurance induced the defacto complainant/O.P.
No.
2 to sale the roof of the 2nd floor to the accused persons for constructing flat
thereon. In the said complaint, it is also alleged that the accused person without consent
of the defacto complainant/O.P. No. 2 installed a water tank on the common passage with
an intention to obstruct her and her family members and also the tenants of the said
premises from using the common passage and on the basis of the said complaint, Siliguri
P.S.
case
No.
309
of
2011
dated
7.6.11
was
initiated
under
Sections
406/418/420/426/447/506/509 of the Indian Penal Code.
Now, it is to be considered whether the said petition of
complaint which was treated as FIR constitutes any of the said offences.
It is evident that there is nothing in the petition of complaint
that any property was entrusted to any of the accused persons and/or the accused
persons had domain over any of the properties of the complainant which they had
dishonestly converted to their own use. So, the ingredients of criminal breach of trust are
not found in the petition of complaint.
It is well known that mere breach of contract cannot give rise
to criminal prosecution under Section 420 IPC unless fraudulent or dishonest intention is
shown right at the beginning of the transaction time when the offence was said to have
been committed. If the promise and/or the assurance made by the accused person have
subsequently not been kept, criminal liability cannot be attracted against the accused
persons and the complainant has right to seek for civil remedy.
Now, it is to be considered whether or not there is any
ingredient of offence under Section 418/426/506/509 IPC in the petition of complaint.
The essential ingredients to constitute an offence under
Section 418 IPC are as follows:
a) that the accused was under a legal obligation or contractual
obligation to protect the interest of some other person; b) that the accused cheated that
person; c) that cheating had relation to his legal or contractual obligation aforesaid; d)
that the accused did so with knowledge that in the process he was likely to cause
wrongful loss to the person cheated.
Similarly, the main ingredients of mischief are as follows:
1. Dishonest intention to take property; 2. The property must
be removable; 3. It should be taken out of the possession of another person; 4. It
should be taken without the consent of that person and 5. There must be some removal
of the property in order to accomplish the taking of it.
But plain reading of the petition of complaint does not go to
show that there is any ingredient of offence under Section 418 IPC or under Section 426
IPC in the petition of complaint.
In the FIR the defacto complainant/O.P. No. 2 has alleged that
the accused persons threatened the defacto complainant/O.P. No. 2 with dire
consequences and also picked up quarrel with her and abused her with filthy languages.
Now, it is to be considered whether such allegations constitute any offence under Sections
506/509 IPC.
The essential ingredients of the offence under Section 506 IPC
are as follows:
1. The accused threatened someone with injury to his person,
reputation or property, or to the person, reputation or property of another in whom the
former was interested; 2. The accused did so with intent to cause alarm to the victim of
offence; 3. The accused did so to cause the victim to perform any act which he was not
legally bound to do.
Mere threat is not sufficient to attract the charge of criminal
intimidation. The threat should be given with an intent to cause alarm to the person
threatened and the threat should be a real one and not just a mere word. Accordingly, it
appears that the essential ingredient of offence under Section 506 IPC is also absent in
the contents of the FIR as there was no specific allegations against the persons that they
threatened the compliant with injury to her person, reputation or property.
Now, it is to be ascertained whether the contents of the FIR
discloses the ingredient of offence under Section 509 IPC. The essential ingredients of
the offences under Section 509 IPC are as follows:
1. The accused uttered some words, or made some sounds or
gesture or exhibited any object or intruded upon the privacy of a woman; 2. The accused
must have intended that the words so uttered or the sound or gesture so made or the
object so exhibited should be heard or seen respectively by the woman; 3. The accused
thereby intended to insult the modesty of the woman.
Such essential ingredients which constitute an offence under
Section 509 IPC are also absent in the petition of complaint.
In the instant case, it has already been pointed out that both
the parties have initiated civil suits against each other.
So, it may be reasonably
presumed that it is within their knowledge that the dispute between them are essentially
civil in nature and civil remedies are available.
Having regard to all such facts and circumstances and
materials on record, it appears that the petition of complaint does not disclose any
offence under Sections 406/418/420/426/447/506/509 of the Indian Penal Code against
the present accused. So, I find merit in the present application under Section 482 of the
Code of Criminal Procedure which accordingly must be allowed.
Accordingly, the instant application under Section 482 of the
Code of Criminal Procedure succeeds.
CRR 2947 of 2011 is allowed and in the nature and
background of the case without cost.
The proceeding of G. R. Case No. 974 of 2011 arising out of
Siliguri P.S. Case No. 309 of 2011 dated 7.6.2011 is hereby quashed and all the
petitioners are discharged and be released from their respective bail bonds.
Let a copy of this judgment be sent to the learned trial court
for information and necessary action.
Urgent Photostat certified copy of this judgment be supplied to
the parties, if applied for, subject to compliance with all necessary formalities.
(Dipak Saha Ray, J.)
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