Ranendranath Dutta Gupta vs The State of West Bengal

R.K. Bag, J.

By filing this criminal revision the petitioners have prayed for quashing the criminal proceeding in connection with Case No. C-7214/2009 u/s 420/120B of the Indian Penal Code pending before the Court of learned Metropolitan Magistrate, 14th Court, Calcutta.

It appears from record that the opposite party no. 2 supplied 437 KVA Alternator to the petitioners at a consideration of Rs. 9,70,000/- inclusive of tax. The petitioners made payment of Rs. 8 lakh, but did not make the payment of balance amount of Rs. 1,70,000/- in spite of repeated requests by the opposite party no. 2. It also appears from record that the opposite party no. 2 made the request for payment of the balance amount by writing letter on different dates and the last letter was sent on 29th September, 2008. As the petitioners did not make payment of the balance amount of money, the opposite party no. 2 filed one petition of complaint before the Court of learned Chief Metropolitan Magistrate, Calcutta on 16th February, 2009 and the said petition of complaint was dealt with by learned Metropolitan Magistrate, 14th Court, Calcutta, on 20th March, 2009. Learned Magistrate examined the witnesses, considered the petition of complaint and issued process against the petitioners under Sections 420/120B of the Indian Penal Code. The petitioners have challenged the criminal proceeding initiated against them by the opposite party no. 2 by filing this criminal revision under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 on the ground that the contents of the petition of complaint do not disclose any offence u/s 420/120B of the Indian Penal Code.

Mr. Mukherjee, learned counsel for the petitioners, submits that the petitioners have made payment of Rs. 8 lakh out of total consideration of Rs. 9,70,000/- and that the dispute in question is civil in nature and as such the criminal proceeding may be quashed. By relying on the decision of Indian Oil Corporation Vs. NEPC India Ltd. and Others, and the decision of Rajesh Bajaj Vs. State NCT of Delhi and Others, Mr. Mitra, learned counsel for the opposite party no. 2 submits that the criminal proceeding initiated by the opposite party no. 2 cannot be quashed even if all the ingredients of the offence of cheating are not available in the petition of complaint. The Hon''ble Supreme Court has held in paragraph 9 of the decision reported in Rajesh Bajaj Vs. State NCT of Delhi and Others, that it is not necessary that a complainant should verbatim reproduce in the body of the complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. If factual foundation of the offence has been laid in the complaint, the court should not hasten to quash the criminal proceeding during investigation stage merely on the premise that one or two ingredients have not been stated with details. It is also held by the Apex Court in the decision reported in Indian Oil Corporation Vs. NEPC India Ltd. and Others, that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of offence he is alleging.

The proposition of law laid down by the Apex Court in the above decisions is that all ingredients of the offence may not be disclosed in the complaint, but the foundation of the ingredients of the offence must be present in the complaint for initiating criminal proceeding against any person. In this connection, I would like to rely on the decision of the Hon''ble Supreme Court in the case of "Anil Mahajan V. Bhar Industries Ltd." reported in (2006) 1 SCC (Cri.) 746 wherein it is held that a distinction has to be kept in mind between mere breach of contract and offence of cheating. A culpable intention right from the beginning when the promise was made cannot be presumed from mere failure of a person to keep up promise subsequently. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating, unless fraudulent or dishonest intention is shown at the very beginning of the transaction. The Court must decide on the basis of the substance of the complaint and not on the basis of mere use of the expression cheating in the complaint. The Hon''ble Supreme Court upheld the decision of the sessions court by categorically pointing out that the requisite averments to make out a case of cheating are absolutely absent from the complaint filed before the learned Magistrate.

The Apex Court has laid down the guidelines for exercise of inherent power u/s 482 of the Code of Criminal Procedure by the High Court in quashing the criminal proceeding in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, and in the case of Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, which is quoted hereunder:-

"i) 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;

ii) 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 officer u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

iii) 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;

iv) 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 u/s 155(2) of the Code;

v) 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;

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

vii) 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."

In the instant case, the contents of the petition of complaint filed before the Court of learned Magistrate do not disclose any fraudulent or dishonest intention on the part of the petitioners from the very inception of the transaction. It is relevant to point out that the petitioners made payment of Rs. 8 lakh out of total consideration amount of Rs. 9,70,000/-, but the balance amount of Rs. 1,70,000/- was not paid by the petitioners in spite of repeated request made by the opposite party no. 2. The contents of the petition of complaint unerringly point out that the dispute between the petitioners and the opposite party no. 2 is civil in nature and that the transaction between the petitioners and the opposite party no. 2 is breach of contract.

Accordingly, I would like to invoke the inherent power of the Court u/s 482 of the Code of Criminal Procedure, 1973 to quash the criminal proceeding pending against the petitioners in the Court of learned Magistrate. Hence, it is ordered that the criminal proceeding being Complaint Case No. C-7214/2009 u/s 420/120B of the Indian Penal Code pending before the Court of learned Metropolitan Magistrate, 14th Court, Calcutta, is quashed. However, the opposite party no. 2 is at liberty to realise the balance amount of money from the petitioners in accordance with law by filing a suit in the appropriate court of law.

The criminal revision is, thus, disposed of.

The department is directed to send a copy of the judgment to the learned court below urgently.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.