CALCUTTA HIGH COURT JUDGMENTS

Ahmed Hossain Versus The State of West Bengal and Anr- 29/08/2014

On consideration of the deed of revocation of power of attorney, it is found that the petitioner appointed and authorized the accused no. 1 as his power of attorney holder for developing the premises by way of new construction after obtaining sanction plan from C.M.C. but as the power of attorney holder, the accused no. 1 failed to perform the duties, the power of attorney was revoked and cancelled. There is no remote indication that the petitioner by that power of attorney, now revoked, also authorized and empowered the accused to collect money from the prospective buyers on his behalf. Undoubtedly no case is made out against the petitioner for having committed offences punishable under sections 420/120B IPC for which he has been charge sheeted. On a mere allegation that there was a collusion between the petitioner and the accused no. 1 , without anything more, submission of charge sheet against the petitioner is not at all justified.

In the High Court at Calcutta

Criminal Revisional Jurisdiction

Appellate Side

Present : The Hon’ble Justice Ashim Kumar Roy

CRR No. 2590 of 2014

Ahmed Hossain

Versus

The State of West Bengal and Anr.

Acts : Sections 420/120B IPC and Section 482 CrPC

For the petitioner : Mr. Syed Arif Ahmed

For the State : Mr. Imran Ali

For defacto-complainant : Mr. Masud Karim

Heard on : 29-08-2014

Judgment on : 10.9.2014

Ashim Kumar Roy, J.:

Invoking Section 482 CrPC, the petitioner, who has been charge sheeted along with another for the offence punishable under Sections 420/120B IPC, has approached this court for quashing of the charge sheet so far as he is concerned.

A charge sheet can very well be quashed, if going through the allegation made in the FIR and materials collected during investigation and accepting the same to be true, it is found that out of that no offence, for which charge sheet has been submitted, is made out. It can also be quashed against a particular accused when although the allegation made out the offence but there is nothing that such accused is a perpetrator of such offences.

Now, on perusal of the FIR, it is found the case of the de facto complainant against the petitioner and another is confined to the allegations made in paragraphs 3, 4, 5, 6, 7 and 8 thereof, which are quoted below:

The de facto complainant is the family physician of the accused no. 2, Ahmed Hossain and the accused no. 2 introduced him with the accused no. 1, Ali Haider, a promoter and developer. The accused no. 2 was the owner of premises No. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017.

It was the further case of the de facto complainant as he was in urgent need of a residential flat and the accused no. 1, Ali Haider in the month of December, 95, told the petitioner he could arrange one rental basis a flat for him at the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017. When believing the rosy picture given by the accused no. 1, Ali Haider, the de facto complainant on December 12, 1995, entered with an agreement with him and in the said agreement the accused no. 1 was agreed to deliver and hand over the possession of a flat on rental basis to the de facto complainant at the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017. Thereafter, on such representation of rosy picture and in pursuance to the agreement executed on December 20, 1995, the de facto complainant paid a total sum of Rs. 1,13,000/- by December 20, 1996, out of the agreed amount of Rs. 2.5 lakhs to the accused no. 1 in the manner as follows,

(1) 01.01.96 Rs. 8,000/-
(2) 31.07.96 Rs. 30,000/-
(3) 09.08.96 Rs.25,000/-
(4)08.10.96 Rs.5,000/-
(5)18.11.96 Rs.5,000/-
(6)20.12.96 Rs.40,000/-
……………………….

Rs. 1,13,000/-

………………………..

The receipt of the aforesaid amount was duly acknowledged by the accused no. 1

However, when the de facto complainant on March 10, 2005 met the accused no. 1 and offered him to pay the balance amount pursuant to the said agreement, the de facto complainant came to know that the accused no. 1 in collusion with accused no. 2 had already handed over the said flat to a third party without his consent and knowledge and the accused no. 1 flatly denied about the receipt of the aforesaid sum of Rs. 1,13,000/-and also the agreement. The de facto complainant on several occasions requested the accused no. 1 and 2 to give him the possession of the flat but neither the possession of the flat was given to him nor the advance money was refunded.

Therefore, the only allegation against the petitioner is that he introduced the accused no. 1, Ali Haider with the de facto complainant and in collusion with the petitioner, the accused no. 1 Ali Haider handed over the flat to a third party although received an advance from the de facto complainant for the same, without his consent and knowledge. According to the de facto complainant, the aforesaid amount was given to the accused no. 1 Ali Haider and the agreement was entered into between the de facto complainant and the said Ali Haider. There was no allegation that any money was paid to the petitioner or he was a party to the agreement. Although it is alleged that in collusion with the petitioner the accused no. 1 Ali Haider handed over the flat to a third party in spite of receipt of advance but nothing has been disclosed how they have colluded. Even assuming the accused Ali Haider, obtained advance from the de facto complainant for the flat in question dishonestly by making a false representation, still for selling out the flat to a third party without his consent and if such sale was made in collusion with the petitioner, he cannot be charged for conspiracy to cheat or for cheating, in absence of any allegation that the petitioner was a party to such conspiracy from the very beginning when the advance was obtained.

It is further found from the perusal of the case diary that during the course of investigation only one witness was examined but according to the statement of such witness nothing further disclosed implicating the petitioner in the commission of the offence. It is further found police also seized some money receipt but those money receipts clearly show that the amount was received by the accused no. 1 Ali Haider not by the present petitioner. There is also no allegation on being deceived by the petitioner the above amount was given to the accused no. 1 Ali Haider.

The learned counsel appearing on behalf of the de facto complainant submitted that the petitioner by executing a power of attorney authorised the principal accused to collect money from different persons including the present petitioner for providing them flats and on the strength of such power of attorney, the said sum of Rs. 1,13,000/- was obtained by the principal accused from the present petitioner.

However, going through the case diary, I do not find the purported power of attorney is the part of the charge sheeted materials. Therefore, there is no scope available to this court to consider the content of such power of attorney. The learned counsel for the de facto complainant also invited the attention of this court to annexure P/2 of the criminal revision and pointed out that the same was the revocation of the power of attorney. This document is also not a part of the case diary. In any event, on consideration of the deed of revocation of power of attorney, it is found that the petitioner appointed and authorized the accused no. 1 Sk. Ali Haider as his power of attorney holder for developing the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017 by way of new construction after obtaining sanction plan from C.M.C. but as the power of attorney holder, the accused no. 1 Sk. Ali Haider failed to perform the duties, the power of attorney was revoked and cancelled. There is no remote indication that the petitioner by that power of attorney, now revoked, also authorized and empowered the accused Sk. Ali Haider to collect money from the prospective buyers on his behalf.

Having regard to above, undoubtedly no case is made out against the petitioner for having committed offences punishable under sections 420/120B IPC for which he has been charge sheeted. On a mere allegation that there was a collusion between the petitioner and the accused no. 1 Sk. Ali Haider, without anything more, submission of charge sheet against the petitioner is not at all justified.

In the result, the impugned charge sheet against the petitioner stands quashed.

This criminal revision is allowed and disposed of.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application.

(Ashim Kumar Roy, J.)

10.9.2014