Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction.

1. Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for opposite party no. 2.

2. The petitioners question the order of cognizance and their entire prosecution in Complaint Case No. 2505C of 2009 under Sections 420, 120B of the I.P.C. pending in the Court of Judicial Magistrate, 1st Class at Patna.

3. Learned counsel for the petitioners submits that reading the complaint as it is, it discloses a purely contractual relationship between the parties with regard to certain construction works for which payments are admitted to have been made at more than one stage of the construction, when allegedly certain payments have remained due and which was not being paid despite repeated requests. The allegations therefore make out a civil dispute primarily for payment of money arising out of a contractual relationship. Resort to the process of criminal law was an abuse of process of the Court. He relies upon a judgment reported in (2000)4 SCC 168 [: 2000(3) PLJR (SC)137] (Hridaya Ranjan Prasad Verma and Others V/s. State of Bihar and Another) and 2009(4) P.L.J.R. 99 (Prabhat Kumar Kanodia V/s. The State of Bihar & Others.)

4. He further submits that the legitimate dues have been paid, in fact, excess payment has been made.

5. Learned counsel for the opposite party no. 2 submitted that the petitioner has not come to this Court with clean hands. He is not entitled to any discretionary relief under Section 482 Cr.P.C. It is contended that from the pleadings in the application under Section 482 Cr.P.C. it appears that the petitioners have claimed certain T.D.S. deductions under the Income Tax Act showing certain payments to have been made to the opposite party no. 2 to which, in fact, has not been paid. Similarly from the statement of Accounts sought to be furnished, the payment of Rs. 15,24,403/- is alleged to have been paid by Cheque, but it gives no details of the Cheque number etc. The items of work were separate and notwithstanding that payments have been made with regard to one work does not take the dishonest intention for non-payment of the other works outside the purview of criminal law. The petitioners contend in their application under Section 482 Cr.P.C. of having allegedly made excess payment to the opposite party no. 2 of Rs. 15,90,363.91/-. Surprisingly, they do not state that they have taken any steps for recovery of the excess amount paid. It is lastly submitted that the petitioners have made incorrect statement in reply to paragraph-25 of the complaint petition which deals with certain other prosecutions inter alia before the Income Tax Department of the petitioners.

6. This court has gone through the averments made in the complaint petition as also on the statement on oath. A conjoint reading of the two reveals a contract agreement between the parties for construction of a Beer factory, its different structures and ingredients of which would ultimately constitute a composite Beer factory. That it was a verbal contract between them is also admitted in the statement on oath.

7. The complainant himself states at paragraph-8 of the complaint, he had no reason to disbelieve the versions and proposals of the petitioners. A bald statement has been made, thereafter that they acted in criminal conspiracy and induced the complainant to accept their proposal with a positive commitment and promised early and timely payment of works done. This allegation of fraudulent inducement/ promise for early and timely payment stood fulfilled by the petitioners as per the complaint itself when the complainant himself acknowledges that as the works progressed his first bill submitted was cleared by the petitioners. Likewise the second bill was also cleared. Conscious of this fact the complainant does not alleged thereafter any inducement dishonestly to continue with the construction, but only states that he was induced to continue with the construction. The dishonest aspect does not appear to be su