IMPORTANT POINT
In absence of mens rea criminal proceeding cannot survive.

JUDGMENT

Siddhartha Roy Chowdhury, J.—This application under Section 482 of the Code of Criminal Procedure challenges the propriety and legality of the proceeding being C.R. Case No. 11 of 2019 under Section 418/420/120B/34 of the Indian Penal Code, 1860, pending before the learned Judicial Magistrate, 1st Court, Siliguri.

2. Briefly stated, G. Venkatesh Babu and L. Madhusudhan Rao, petitioners herein have been arrayed as accused persons no. 2 and 3 being the Managing Director of Lanco Infratech Limited and whole time Director of the said company, by the complainant/opposite party no. 2. It is alleged that the complainant used to supply dissolved acytelene oxygen industrial cylinders to the construction site of the accused persons at Sirwani, Singtham. But in the breach of understanding the company Lanco Infratech Limited failed to return the empty cylinders and denied the obligation by simply stating that they never received the said cylinders. Thereby the accused company misappropriated the cylinders of the company worth Rs. 38,66,500/-.

3. Aggrieved complainant filed a petition of complaint against the accused persons which was registered as C.R. Case no. 459 of 2017. learned Judicial Magistrate, 3rd Court having taken cognizance, was pleased to issue summons against the accused persons and accused nos. 1, 2 and 3 convinced the complainant that they would pay Rs. 29,02,550/- in instead of Rs. 38,66,500/- by seven installments. Incidentally they paid Rs. 12,00,000/- in one go, and they promised to pay the balance amount of Rs. 17,02,550/- in six equal monthly installments starting from March, 2018 to August, 2018 upon withdrawal of the complaint case. The complainant was thus induced by accused nos. 1, 2 and 3 to enter into an agreement and pursuant to such agreement the learned Judicial Magistrate, 3rd Court, Siliguri was approached by filing an application dated 27th July, 2017 to pass necessary order pursuant to the settlement out of the Court.

4. But after the withdrawal of the complainant, the accused persons did not honour the terms of the settlement despite being requested by the complainant by letter dated 14th March, 2018. Even accused persons refused to speak to the complainant when the complainant tried to contact over phone on 21st September, 2018 and on subsequent dates. It is alleged that had there been no such inducement on the part of the accused persons the complainant would not have entered into the settlement agreement or withdrawn the complaint case.

5. Learned Jurisdictional Magistrate seisin over C.R. 11 of 2019, after invoking the provision of Section 200 Cr.P.C. was pleased to issue process upon the accused persons under Section 418/420/120B/34 of the Indian Penal Code. The accused persons however, did not appear before the learned Trial Court and warrant of arrest was issued.

6. Heard Mr. Arjun Syal, learned Counsel representing the petitioners, Ms. S. Sethia and Mr. Abhijit Sarkar, learned Counsels representing the private opposite party and the State respectively.

7. It is submitted by Mr. Syal that the provision of Section 202 of the Code of Criminal Procedure has not been complied with by the learned Judicial Magistrate. No enquiry was held as contemplated under Section 202 of the Cr.P.C. It is further contended that the complainant suppressed the material fact and set the criminal proceeding into motion which amounts to abuse of process of law. Drawing my attention the settlement agreement it is submitted that on 27th July, 2017 the parties entered into an agreement towards settlement of dispute and upon deliberation it was settled that M/s Lanco Infratech Limited (herein after referred as ‘LITL’) would pay a sum of Rs. 12,00,000/- by way of demand draft to M/s Baid Distributors Private Limited (hereinafter referred to as ‘BDPL’) in the Court as soon as the complainant would give his consent before the learned Court to compound the offence and rest amount of Rs.17,02,550/- would be paid in six m