While quashing a case against an advocate accused of taking forcible possession of a senior citizen’s house, the Calcutta High Court has held that permitting a parallel criminal trial on identical allegations would lead to gross abuse of the judicial process when a competent Civil Court exercising civil jurisdiction is already seized of the lis concerning title and has observed that fraud was not established at the threshold.

The High Court was considering a criminal revisional application filed under Section 482 read with Sections 397 and 401 of the Code of Criminal Procedure, 1973, by the petitioner, seeking the quashing of the First Information Report registered under Sections 420, 406, 448, 427, 506, 120B of the Indian Penal Code, 1860.

The Single Bench of Justice Uday Kumar held, “When a competent Civil Court exercising civil jurisdiction is already seized of the lis concerning title, the validity of deeds, and the civil consequences of a transaction, and has explicitly observed that monies were accepted and withdrawn and that fraud has not been established at the threshold, permitting a parallel criminal trial on identical allegations against an advocate and connected parties would lead to conflicting judicial outcomes and perpetrate a gross abuse of the judicial process.”

Advocate Sabyasachi Mukherjee represented the Petitioner while Public Prosecutor Kallol Mondal represented the Respondent.

Factual Background

The de facto complainant, a senior citizen aged about 77 years, originally owned a two-storied residential building standing on a plot of land. The elderly complainant suffered physical ouster from his said residential property at the hands of his son and daughter-in-law. Though living separately, they forcibly entered his premises, subjected him to continuous physical and mental torture, and ultimately drove him out of his own home, compelling him to take shelter at his daughter's residence.The complainant sought professional assistance and consulted the present petitioner, an advocate, along with co-accused Rahul Biswas.

Pursuant to legal steps initiated before the Court, the elderly complainant was successfully restored to the physical possession of his property. A registered General Power of Attorney was executed in favour of Rahul Biswas, described as an office assistant/clerk of the petitioner. However, the controversy erupted when the said Power of Attorney holder executed a registered sale deed transferring the property in favour of the petitioner. The elderly complainant left for Jharkhand for a brief period to attend his granddaughter’s wedding, and upon returning, he discovered that his former advocate had allegedly broken the locks of the house, demolished the rooms and taken over forcible possession.

A written complaint was lodged and subsequently, the Investigating Officer submitted a charge-sheet under Section 173 Cr.P.C. Parallelly, a civil suit was instituted by the petitioner wherein the Civil Court noted that money had been accepted and withdrawn through banking and cash channels, and concluded that the defendants failed to establish a prima facie case of fraud at that stage, protecting the plaintiff's possession over the suit land through an order of injunction.

Reasoning

The Bench, at the outset, explained, “It is a well-settled principle of criminal jurisprudence that civil and criminal remedies are not mutually exclusive, and a given set of facts may simultaneously give rise to civil and criminal liabilities. However, the Apex Court has repeatedly cautioned that criminal courts must exercise extreme vigilance to prevent the weaponization of criminal proceedings as a pressure tactic or an alternative shortcut to settle civil property disputes, contractual breaches, and title disagreements.”

Considering the facts of the case, the Bench noted that the transaction in question rested upon statutory registered instruments, the registered General Power of Attorney and the registered Sale Deed.

The Bench also found that while the complainant alleged breach of trust and fraud, the contemporaneous documentary evidence, including bank statements, structured payment directions, and money receipts, proved that the monetary considerations were indeed remitted and withdrawn through banking channels. It was further noticed that the Trial Court in the Title Suit, while adjudicating upon injunction applications, recorded a categorical finding that theOpposite Party failed to establish a prima facie case of fraud and protected the petitioner’s peaceful possession over the suit property by an order of injunction.

“The dispute between the parties is quintessentially civil and proprietary in character, turning upon the interpretation of power of agency, contractual performance, and property rights. In the absence of clear, unequivocal ingredients of cheating punishable under Section 420 of the IPC viz. dishonest inducement ab initio, the criminal prosecution loses its foundational legitimacy”, it added.

Thus, allowing the revision, the Bench quashed the FIR in question.

Cause Title: Subrata Halder v. State of West Bengal and Ors. (Case No.: CRR 1269 OF 2022)

Appearance

Petitioner: Advocates Sabyasachi Mukherjee, Tapan Jyoti Bose, Saheli Mukherjee

Respondent: Public Prosecutor Kallol Mondal, Advocates Somnath Adhikary, Samira Grewal

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