Calcutta HC Quashes Fraud Case Against Doctor Where Co-Accused Had Died Eight Years Before Alleged Threat

Justice Ajay Kumar Gupta quashed a criminal complaint alleging fraud and criminal threat, finding it legally impossible where one accused had died years before the alleged offence, the deed was registered, Section 202 was not followed, and a civil suit on identical facts was already pending.

The Calcutta High Court has quashed a criminal complaint filed against Dr. Gour Das, a physician of over 30 years' standing, arising from the execution of a trust deed in 2010. Justice Ajay Kumar Gupta, sitting singly in the criminal revisional jurisdiction of the Appellate Side, allowed CRR No. 3700 of 2018 and set aside Complaint Case No. 856 of 2018, which had been pending before the Judicial Magistrate, 2nd Court, Barasat, North 24 Parganas. The court found that the complaint was fatally undermined by five independent infirmities: an unexplained delay of eight years in filing; an allegation of criminal threat attributed to a co-accused who had been dead for nearly eight years at the time of the alleged act; registration of the trust deed in the presence of witnesses before the Additional Registrar of Assurance; non-compliance with the mandatory inquiry under Section 202 of the Code of Criminal Procedure, 1973; and the pendency of a parallel civil suit between the same parties on the very same deed.

The Trust Deed at the Centre of the Dispute

Himangshu Nag was the absolute owner of premises at 42/139/1, New Ballygunge Road, under Police Station Kasba, Kolkata, having purchased it by a registered deed of conveyance in 1967. His only daughter, Anindita Nag, died of cancer in April 2009. Following that loss, the complainant Bhabani Bhattacharjee — Himangshu Nag's niece — alleged that he and his wife Anima Nag lost their mental equilibrium, and that the accused persons exploited that condition to induce them into executing a trust deed.

According to the version placed before the Magistrate, Dr. Gour Das and Dr. Tapash Kumar Banerjee, who were Secretary and President respectively of Somsar Sri Ramkrishna Seva Mondir, caused the execution of a “Deed of Trust” in the name of Anindita Trust, purportedly for charitable and benevolent activities at the Ballygunge premises. The preamble of the trust deed provided that during the lifetime of the settlers, the Anindita Trust would subsist, and after their demise it would merge with Somsar Sri Ramkrishna Seva Mondir. The complainant alleged that no charitable activity had ever been launched and that the entire exercise was designed to grab the property.

The trust deed was executed and registered on 18 August 2010. Dr. Tapash Kumar Banerjee died on 22 September 2010, barely five weeks after registration. Himangshu Nag's wife subsequently died as well. Himangshu Nag then sought to revoke the trust deed and, through his advocate, sent a legal notice dated 10 May 2018 to the accused persons. The complainant alleged that on 7 May 2018 — three days before the legal notice — the accused persons threatened Himangshu Nag with dire consequences if he pursued legal remedies. Complaint Case No. 856 of 2018, under Sections 420, 465, 471, 120B, 506 and 34 of the Indian Penal Code, 1860, was filed before the Chief Judicial Magistrate, Barasat, who took cognizance and transferred the matter to the 2nd Court, Judicial Magistrate, Barasat. The learned Magistrate examined the complainant under Section 200 of the Code on 26 September 2018 and issued summons against both accused persons.

The Petitioner's Case Before the High Court

Dr. Gour Das moved the High Court under Section 482 of the Code seeking quashing of the entire complaint proceeding. Mr. Milon Mukherjee, learned senior counsel, appeared for the petitioner, assisted by Mr. Rahul Ganguly.

Counsel submitted that the approach to Dr. Das had originated entirely with Himangshu Nag himself. Around April 2009, Himangshu Nag contacted the petitioner by phone, having obtained his name and address from a known monk settled at Tarapith, Birbhum, to discuss his desire to transfer his property to a religious organisation. Both Himangshu Nag and his wife, distressed by the loss of their daughter, expressed their wish that philanthropic work be carried out at the premises, particularly medical services, and that the ground floor be handed over to Somsar Sri Ramkrishna Seva Mondir.

Following detailed discussions, the petitioner placed the proposal before the Executive Committee of Somsar Sri Ramkrishna Seva Mondir on 5 June 2010. The trust deed was drafted, approved by Himangshu Nag and his wife, and registered on 18 August 2010 at the residence of Dr. Tapash Kumar Banerjee, who was then seriously ill and bedridden. The deed was executed before witnesses and registered before the Additional Registrar of Assurance — I.

Senior counsel highlighted three matters of particular significance. The complaint was lodged in 2018, eight years after the deed's registration, with no explanation for the delay. Dr. Tapash Kumar Banerjee — accused no. 1 — had died on 22 September 2010, yet the complaint accused him of threatening Himangshu Nag on 7 May 2018. The complainant said nothing about his death even during her examination before the Magistrate on 26 August 2018. Additionally, the petitioner resides outside the territorial jurisdiction of the Trial Court, yet the Magistrate issued summons without conducting the mandatory preliminary inquiry under Section 202 of the Code, which is required before process is issued against an accused residing beyond jurisdiction. A civil suit — Title Suit No. 801 of 2018 — filed by the complainant on the same dispute, was also pending before the 1st Additional Civil Judge (Junior Division) at Alipore.

How the Court Reasoned Through Each Infirmity

Justice Gupta noted that each of the five circumstances carried an independent legal consequence and addressed them in sequence.

On delay, the court observed that the unexplained gap of nearly eight years between the registration of the deed on 18 August 2010 and the lodging of the complaint in 2018, with no word of explanation in the complaint or before the court, was itself a circumstance from which an inference of afterthought and design could reasonably be drawn.

On the allegation of criminal threat, the court's finding was unequivocal. The complaint attributed a specific overt act — threatening Himangshu Nag with dire consequences on 7 May 2018 — equally to both accused, including Dr. Tapash Kumar Banerjee, who had admittedly died on 22 September 2010. The court held that this averment was “not merely improbable but impossible on its face,” and that no criminal proceeding could be permitted to continue on the strength of such an averment. The complainant's failure to disclose the death of accused no. 1 even during her examination under Section 200 on 26 September 2018 further reflected on the bona fides of the complaint as a whole.

On registration, the trust deed had been executed in the presence of witnesses and registered before the Additional Registrar of Assurance — I, which the court found disproved the allegation of forgery on the face of the record.

On Section 202, the court held that the Magistrate's failure to conduct the preliminary inquiry before issuing summons to the petitioner, whose residential address lay beyond the territorial jurisdiction of the court, was a jurisdictional infirmity that independently vitiated the issuance of process.

On the civil suit, the court held that the pendency of Title Suit No. 801 of 2018 before the 1st Additional Civil Judge (Junior Division), Alipore, touching the very same deed of trust, confirmed that the real character of the dispute was civil — relating to the validity and revocability of a trust — and that the machinery of criminal law had been invoked as a parallel and improper means of pressuring the petitioner in what was essentially a civil contest.

Application of the Bhajanlal Framework

Justice Gupta applied the categories laid down by the Supreme Court in State of Haryana & Ors. v. Bhajanlal & Ors., AIR 1992 SC 604, which sets out the circumstances in which the inherent power under Section 482 of the Code may be exercised to prevent abuse of process or to secure the ends of justice.

The court found that the present case fell squarely within Categories (1), (5), (6) and (7) of Bhajanlal. The allegation of threat attributed to a person who had died eight years before the date of the alleged occurrence, even if taken at face value, did not disclose the commission of any offence and was so inherently improbable that no prudent person could find sufficient ground to proceed — Categories (1) and (5). Non-compliance with the mandatory procedure under Section 202 constituted an express legal bar to continuation of the proceeding in its present form — Category (6). Read together with the unexplained eight-year delay, the complainant's silence regarding the death of accused no. 1 even during her Section 200 statement, and the pendency of the civil suit, the court was satisfied that the criminal proceeding was a civil dispute clothed in the garb of criminality, instituted with an ulterior motive to harass and pressurise the petitioner — Category (7). The court held that continuance of such a proceeding would amount to a gross abuse of the process of the court and would not serve the ends of justice.

Order

CRR No. 3700 of 2018 was allowed. Complaint Case No. 856 of 2018 under Sections 420, 465, 471, 120B, 506 and 34 of the Indian Penal Code, 1860, pending before the Judicial Magistrate, 2nd Court, Barasat, North 24 Parganas, was quashed insofar as the petitioner Dr. Gour Das is concerned. Any connected pending application was disposed of. The interim order, if any, was vacated. A copy of the judgment was directed to be sent to the court below for information.