Bhabadwip Borah @ Sri Bhabadup Borah and Anr. Vs the State of Assam and Anr.

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GAHC010150922024

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2025:GAU-AS:5707

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./902/2024

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BHABADWIP BORAH @ SRI BHABADUP BORAH AND ANR S/O LATE PADMA KANTA BORAH, R/O VILL- KALPATARO HOUSHING COLONY, P.S. NAGAON SADAR, DIST. NAGAON, ASSAM PIN- 782002.

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2: NIRMALI SAIKIA W/O SRI BHABADIP BORAH R/O VILL- KALPATARO HOUSING COLONY P.S. NAGAON SADAR DIST. NAGAON ASSAM PIN- 78200

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VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM

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2:NRPENDRA BHATTACHARYA S/O LATE SHRIKANTA BHATTACHARYA R/O QUARTER NO. 35/3

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NAGAON PAPER MILI

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P.O. AND P.S. JAGIROAD

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DIST. MORIGAON ASSAM PIN-78241

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Advocate for the Petitioner : MR. M U MAHMUD, ld. Adv.

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Advocate for the Respondent : PP, ASSAM, MR. K BROOK (R-2)

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BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

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Date of hearing : 08.01.2025 Date of Judgment : 08.05.2025

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JUDGMENT & ORDER (CAV)

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Heard Mr. M. U. Mahmud, learned counsel for the petitioners. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent No.1 and Mr. K. Brook, learned counsel for the respondent No.2.

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2. This application is filed under Section 528 of the BNSS, seeking the setting aside and quashing of PRC Case No. 1587/2022 [corresponding to Jagiroad P.S. Case No. 29/2021], registered under Sections 120(B)/420/406 of the IPC, along with the Charge Sheet, vide C.S. No. 167/2022 and the impugned order dated 11.07.2022, passed by the learned Sub-Divisional Judicial Magistrate (S), Morigaon, whereby cognizance was taken against the present petitioners. The case is currently pending before the said Court.

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3. On 16.01.2021, an FIR was lodged by Nripendra Bhattacharya/present respondent No.2/informant before the Officer-in-Charge of Jagiroad Police Station, stating inter alia that he is a retired employee of Jagiroad Paper Mill and, due to the unavailability of his own house, continues to reside at HPC Colony, Jagiroad. After his retirement, he came to know that the present

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petitioners were selling their RCC building at Sensuwa, Kalpataru Housing Society, Nagaon District. Following an agreement, he paid Rs. 19,35,000/(Rupees nineteen lakhs thirty-five thousand) only out of Rs. 27,00,000/(Rupees twenty-seven lakhs) only to the petitioners. However, despite receiving the payment, the petitioners neither handed over the building nor refunded the amount, even after providing a written surety. The informant further alleged that petitioner No. 2, Nirmali Saikia, issued two cheques, both of which were dishonored due to insufficient funds. Following the FIR, the petitioners were arrested on 27.04.2021 and produced before the learned Additional Chief Judicial Magistrate, Morigaon. The Court, considering the facts and circumstances, observed that the dispute was civil in nature, the apprehension of the Investigating Officer (IO) was misplaced, and the arrest of the petitioners was unjustified. Consequently, the petitioners were released on bail on the same day.

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4. Mr. Mahmud, learned counsel for the petitioners, submits that after the investigation, the police submitted Charge Sheet, vide C.S No. 167/2022, dated 11.05.2022, under Sections 120(B)/420/406 IPC before the learned Trial Court. He further submitted that the informant filed this case at the instigation of certain miscreants, despite the petitioners’ willingness to refund the amount. As a result, the petitioners are facing severe financial hardship. Thereafter, the Charge Sheet was filed, the case was renumbered as PRC Case No. 1587/2022, and on 11.07.2022, the learned Sub-Divisional Judicial Magistrate (S), Morigaon, took cognizance under Sections 120(B)/420/406 IPC and issued summons to the petitioners. The petitioners appeared through their engaged advocates.

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5. The petitioners contended that the case and Charge Sheet is lacking legal

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basis or criminal elements. Mr. Mahmud submits that the matter is purely civil in nature, yet the IO registered a criminal case and filed a Charge Sheet without proper legal scrutiny. He submits that alternative legal remedies, such as a case under Section 138 of the Negotiable Instruments Act (N.I. Act) or a civil suit for specific performance, were available to respondent No. 2 (informant), but instead, he filed a criminal case solely to harass the petitioners.

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6. He further submits that petitioner No. 1 is a retired government school teacher with an unblemished reputation and has never been involved in any criminal cases. The petitioners acknowledge receiving an advance payment for selling their property. However, due to external instigation, the informant lodged this case to defame and damage their reputation. The petitioners are law abiding citizens with no prior criminal record, but due to a defective police investigation, they have been wrongfully implicated without legal justification. He further submits that if the criminal proceeding is allowed to continue, there is no likelihood of conviction, as the FIR and Charge Sheet do not disclose any criminal elements.

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7. Being highly aggrieved and dissatisfied with the impugned order dated 11.07.2022 the petitioners has preferred this instant petition, praying for the quashing and setting aside of PRC Case No. 1587/2022 [corresponding to Jagiroad P.S. Case No. 29/2021] and Charge Sheet No. 167/2022, dated 11.05.2022, registered under Sections 120(B)/420/406 IPC, pending before the learned SDJM (S), Morigaon, by invoking the power under Section 528 of the BNSS.

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8. In support of these submissions, the petitioners rely on the following judgments rendered by the Hon’ble Supreme Court:

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i. All Cargo Movers (I) Pvt. Ltd. vs. Dhanesh Badarmal Jain & Anr., reported in AIR 2008 SC 247 [Paragraph Nos. 14, 17 and 22];

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ii. Shri J. K. Thaosen vs. Shri Kedarnath Upadhaya & Anr., reported in 1986 2 GLR 467 [Paragraph Nos. 1 and 2] and

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iii. Anirudh Dhanda & Anr. vs. State of Assam , reported in 2001 2 GLT 66 [Paragraph Nos. 13 and 14].

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9. By citing the aforementioned judgments, the learned counsel for the petitioners has submitted that where there exists an agreement between the parties, no criminal case can be maintained, and that a mere breach of contract simpliciter does not constitute an offence. Moreover, upon a bare perusal of the complaint petition, it is evident that there is no averment sufficient to attract the ingredients of the offences under Sections 120B/420/406 of IPC. To attract these provisions, the allegations in the complaint or the FIR must disclose the essential ingredients of the said offences. However, considering the entire facts and circumstances of the case, it appears that the dispute is civil in nature. The informant may seek appropriate remedy by filing a civil suit or by initiating proceedings under Section 138 of the Negotiable Instruments Act, in case there is an allegation regarding dishonour of cheque due to insufficiency of funds, which is alleged to have been issued by petitioner No.2. In the case of All Cargo Movers (I) Pvt. Ltd. (supra), it has been observed, particularly in paragraph 17 of the said judgment, as follows:

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“17. We are of the opinion that 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. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in

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the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that 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.”

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10. Mr. Mahmud, learned counsel for the petitioners, submitted that the petitioners are still ready and willing to repay the amount admittedly received during the course of the transaction towards the sale consideration of the property. He further contended that the learned Trial Court, without proper application of judicial mind, took cognizance of the offence against the petitioners vide its order dated 11.07.2022, which is liable to be set aside and quashed, along with the FIR and the charge sheet arising therefrom. He also emphasized that while granting bail, the learned Addl. CJM observed that the dispute appeared to be civil in nature, and on that basis, bail was granted to the petitioners. Therefore, he submitted that this is a fit case, wherein the entire criminal proceeding, including the order taking cognizance, may be set aside and quashed by invoking the power under Section 528 of BNSS.

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11. On the other hand, Mr. Brooke, learned counsel for respondent No.2,

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submitted that the learned Trial Court had rightly taken cognizance of the offence after perusing the Case Diary as well as the Case Record. He further stated that the accused/petitioners had approached respondent No.2 with a proposal to sell 1 katha 5 lechas of land in Kachamari, Nagaon District. The sale consideration was fixed at Rs. 27,00,000/- (Rupees twenty-seven lakhs) out of which Rs. 19,35,000/- (Rupees nineteen lakhs thirty-five thousand) was admittedly paid for execution and registration of the sale deed. However, even after the lapse of several months, the sale deed was not executed. Upon inquiry, respondent No.2 came to know that the schedule land proposed to be sold had already been mortgaged to LIC Housing Finance Ltd. by the petitioners since 2014 for securing a loan. This fact was allegedly concealed by the petitioners, who had approached respondent No.2 and offered to sell and transfer possession of the property. Since the entire property was already mortgaged to LIC Housing Finance Ltd., the petitioners had no legal right to sell or transfer the land. They are default borrowers and, despite being given ample opportunity, they refused to return the amount received. Thus, having no alternative, respondent No.2 lodged an FIR at Jagiroad Police Station, alleging that the petitioners deceived him by suppressing the material fact that the property was under mortgage.

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12. Mr. Brooke argued that the intention to cheat existed from the inception of the agreement for sale, and that by concealing the mortgage, the petitioners dishonestly induced respondent No.2 to pay Rs. 19,35,000/- (Rupees nineteen thousand thirty-five thousand) only. He further submitted that the learned Magistrate granted bail without considering these facts and observed the matter to be civil in nature. However, the record clearly indicates a dishonest intention from the beginning of the transaction. Therefore, the ingredients of the FIR are

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sufficient to constitute offences under Sections 120B/420/406 of the IPC. He concluded that although a civil remedy may be available, the mere existence of such a remedy cannot be a ground for quashing criminal proceedings when there is clear intent to deceive from the very beginning of the transaction.

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13. In support of his submission, he relied on the decision of the Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel vs. The State of Gujarat & Anr. , reported in (2012) 7 SCC 621, particularly emphasizing paragraphs 37 to 39 which read as under:

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“37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is subjudice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.

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In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.

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There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.”

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14. Thus, citing the above points, Mr. Brooke, learned counsel for respondent

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No.2/informant, submitted that this is not a fit case for invoking the power

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under Section 528 of the BNSS to set aside and quash the entire criminal proceedings, including the order taking cognizance against the accused/petitioners.

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15. Having heard the submissions made by the learned counsels for both sides, I have also perused the case record. It is an admitted fact that there was an agreement for sale, and the sale consideration was fixed at Rs. 27,00,000/(Rupees twenty-seven lakhs) only, out of which respondent No.2 had already paid an amount of Rs. 19,35,000/- (Rupees nineteen lakhs thirty-five thousand) only to the accused/petitioners. It is also admitted that two cheques issued by petitioner No.2 were dishonoured due to insufficient funds. It is a settled position of law that a mere breach of contract does not constitute a criminal offence, and in such cases, civil remedies are available to the parties. In the present case, respondent No.2 may seek redress before the appropriate civil forum, including filing a suit for specific performance of contract. Additionally, a remedy under Section 138 of N. I. Act may also be available. However, what needs to be examined is whether there was an intention to deceive respondent No.2 at the very inception of the agreement for sale the property in question.

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16. From the submissions made by the learned counsel for respondent No.2, it appears that, at the time of entering into the agreement, the petitioners had already mortgaged the property with LIC Housing Finance Ltd. for obtaining a loan, and notices had been issued to them as defaulters. This material fact was allegedly suppressed from respondent No.2, who was under the impression that the land was free from all encumbrances. Therefore, it cannot be viewed merely as a case of breach of contract simpliciter; rather, there appears to be a prima facie intention to deceive respondent No.2 at the very inception of the agreement for sale. While, these facts may be further examined during the trial,

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but, from the contents of the FIR, there found a prima facie case against the petitioners. Furthermore, as held by the Hon’ble Apex Court, the mere availability of a civil remedy does not warrant quashing of a criminal case, where the allegations disclose commission of a cognizable offence.

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17. The Hon’ble Supreme Court in Vesa Holdings (P) Ltd. & Anr. vs. State of Kerala & Ors., reported in (2015) 8 SCC 293, has held in paragraphs 12 and 13 of the said judgment as under:

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“12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

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It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding…………”

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18. The Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. , reported in 1992 Supp (1) SCC 335 , has held as under:

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“ 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,

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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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a 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.

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(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.

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(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.

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(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.

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(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

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provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(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.”

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19. In the instant case, as discussed above, it is evident that a prima facie case is made out from the ingredients of the offence. It is a settled position of law that every breach of contract does not amount to the offence of cheating; however, if there is an intention to deceive the other party from the very inception of the agreement, such conduct may constitute a criminal offence.

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20. In view of the above discussion, this Court is of the considered opinion that this is not a fit case for invoking the power under Section 528 of the BNSS to set aside and quash PRC Case No. 1587/2022 [corresponding to Jagiroad P.S. Case No. 29/2021], registered under Sections 120(B)/420/406 of the IPC, along with the Charge Sheet, vide C.S. No. 167/2022, the FIR, and the cognizance order dated 11.07.2022, which is pending before the learned Sub-Divisional Judicial Magistrate (S), Morigaon. Accordingly, the petition stands dismissed.

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21. In terms of above, this criminal petition stands disposed of.

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JUDGE

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Comparing Assistant

Bhabadwip Borah @ Sri Bhabadup Borah and Anr. v. the State of Assam and Anr.

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Bhabadwip Borah @ Sri Bhabadup Borah and Anr. v. the State of Assam and Anr.

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