TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 476
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....num purely on a short term basis i.e. a period of 120 days from October 25, 2011. Thereafter, the said loan was renewed from time to time for a period of 120 days each and upon every renewal fresh cheques were issued and previous cheques were replaced. But on one occasion when the petitioner had issued cheques to the opposite party towards payment of principal amount, the said cheques were returned dishonored with remarks "funds insufficient‟. Thereafter, on 22.01.2020 when the opposite party demanded the principle amount from the petitioner, the petitioner refused to pay such amount and as a sequel a legal notice dated 04.02.2020 was sent by the opposite party to the petitioner. Since an amount of Rs. 15,00,000/- had been lying due in respect of refund of principal amount, the opposite party filed a complaint alleging commission of offences under Section 406/420/120B of the IPC against the petitioner wherein the Ld. A.C.M.M. was pleased to take cognizance of the said complaint vide order dated 29.06.2020 and transferred the same to the Court of Ld. Metropolitan Magistrate, 8th Court, Calcutta for disposal. Ld. Magistrate issued summons and examined one witness under Section ....
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....ceive the opposite party. Therefore, Ld. Senior Counsel has contended that such an improbable proceeding should be nipped at the bud by invoking extra ordinary jurisdiction. 6. In order to bolster his argument Mr. Bhattacharjee has referred to the ratio of the following cases:- * Lalit Chaturvedi & Ors vs State of Uttar Pradesh & Anr, 2024 SCC Online SC 171 * Manish vs State of Maharashtra, AIR 2025 SC 1773 * Vir Prakash Sharma vs Anil Kumar Agarwal & Anr, (2007) 7 SCC 373 * Uma Shankar Gopalika vs State of Bihar, (2005) 10 SCC 336 * Satischandra Ratanlal Shah vs State of Gujrat & Anr, (2019) 9 SCC 148 * Delhi Race Club (1940) Ltd. vs State of U.P. (2024) 10 SCC 690 7. Per contra, Mr. Pawan Kumar Gupta, Ld. Counsel, appearing on behalf of the opposite party has submitted that the act of the petitioner in not refunding the principle amount is an act of fraud and misappropriation as it is an admitted position that the petitioner took a loan of Rs. 15,00,000/-. Moreover, the petitioner himself has referred to the withdrawal of the proceedings under the N.I. Act upon payment of due interest over the principle amount. At this juncture, Mr. Gupta has vehemently denied the p....
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....he Trial Court has already framed charge and major part of the evidence of the prosecution has been already recorded. Analysis : - 16. I have gone through all the cases referred on behalf of the parties. After evaluation it has come to my notice that the cases especially relied on behalf of Mr. Bhattacharya pertain to non- payment of due balance amount simpliciter. But, the factual matrix of the case I am dealing with has got no similarity to the cases relied on behalf of Mr. Bhattacharya. Therefore, it cannot be said that the ratio enumerated in those cases squarely apply here as well. 17. Before going into the merit in terms of no love lost relationship between the parties, I propose to focus on nitty- gritty of the Provisions of Section 420 & 406 of the IPC as under:- " S. 420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also ....
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....to invoke Sections 406 & 420 of the IPC, it is essential that the complainant should prima facie establish the presumption of intention in the mind of the petitioners to cheat and/or defraud the complainant/opposite party no. 2 herein right from the inception. And such an alleged act should have resulted in wrongful loss for the complainant/opposite party no. 2 herein and wrongful gain for the petitioners. 23. Having fully addressed the contours of the offences alleged, let us now advert to the facts of the instant case to appreciate whether the allegations made by the opposite party are sufficient to prima facie establish a case against the petitioner. 24. In the instant case, the opposite party came up with an allegation that in the month of October 2011, the petitioner approached the opposite party for a personal loan of Rs. 15,00,000/- along with interest @ 17% per annum for a period of 120 days from 25.10.2011. The said loan was extended from time to time and interest was also paid till 2019. But whenever the opposite party demanded back the principal amount, it was never repaid. In the meantime, an incident regarding dishonor of cheque also took place wherein the petitioner....
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....t is required to be considered only at the conclusion of the Trial. The only material requirement which is to be considered is a prima facie case and the material collected during investigation, which warrants the accused to be tried. 28. To exercise the inherent power under Section 482 of the Cr.P.C is not the rule but it is an exception which can be applied only if it appears to the Court that miscarriage of justice would be committed if the trial is allowed to proceed further. 29. In light of the above principle, I am unable to interfere with impugned proceeding at this stage by invoking power under Section 482 of CrPC as all the material contradictions with regard to the alleged occurrence is a subject matter of trial and from careful perusal of the available evidence this Court cannot conclude that the allegations made in the complaint do not prima facie make out any offence as the petitioner on earlier occasion also issued cheques which were dishonoured due to insufficiency of funds and the ingredient of mens rea cannot be scrutinized at this juncture. Nor can it conclude that the allegations made therein are patently and inherently improbable which will make the instant re....