IMPORTANT POINT
A breach of contract does not constitute an offence of cheating unless there is evidence of dishonest intention from the outset, and vicarious liability cannot be imposed on company directors without the company being a party to the complaint.

JUDGMENT :

Chandra Shekhar Jha, J.

The present application has been filed under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) for quashing the order dated 20.07.2013 passed in Complaint Case No.2846(C) of 2012, whereby the learned Chief Judicial Magistrate, Begusarai has taken cognizance against the petitioner for the offence punishable under Section 420 and 406 of the Indian Penal Code (for short ‘IPC’).

2. In brief, case of complainant speaks through complaint that the petitioner, who is the Director of M/s. Harji Engg. Pvt. Ltd. approached the complainant in her branch office at Bhagalpur to supply welding electrodes. The company of the petitioner was working at NTPC, Kahalgaon and after oral agreement and signature over the pad of the firm, the complainant started supplying the petitioner welding electrodes at NTPC, Kahalgaon site on 14.06.2006 till 06.07.2007 for which a bill was raised for Rs.21,13,513/-. It is further alleged that as per agreement, the petitioner was to pay 24% interest per annum if the amount was not paid within 30 days from the date of receipt of the goods. The complainant was paid Rs.5 lacs from 23.09.2008 to 28.04.2012 and therefore the petitioner became liable to pay interest on the amount from 14.06.2006 and the total amount is Rs.21,13,513/- and the balance amount was the interest amount. Though the complainant raised demand regularly but, the same has not been paid to the complainant.

3. Mrs. Archana Shahi, learned counsel appearing on behalf of the petitioner submitted that from the perusal of complaint petition on its face, it can be said by any prudent interpretation that no prima facie case under Sections 420 and 406 of the IPC made out against the petitioner. In support of submission, learned counsel submitted that opposite party no.2/ M/s. Electro Mechnico Co., Power House Road supplied electrodes at different point of time during the period from 14.06.2006 till 06.07.2007 to the petitioner’s company at National Thermal Power Co. (for short ‘NTPC’), Kahalgaon, where he is alleged to be a Director of the Company and raised a bill of Rs.21,13,513/-. It is submitted that against the said bill, amount of Rs.5,00,000/- was paid during the period of 23.09.2008 to 28.04.2012 but, subsequently, opposite party no.2 by taking count of 24% per annum interest raised a bill to the tune of Rs.44,49,614.76/-. The principal amount of Rs.21,13,515/- is not disputed.

4. It is further submitted by learned counsel that earlier the petitioner approached Hon’ble High Court for anticipatory bail in complaint case where a condition was imposed to pay Rs.16 lacs to opposite party no.2 at the time of furnishing of bail bond which now paid to opposite party no.2, through two different bank drafts each of Rs. 8 lacs, drawn on Punjab and Sindh Bank and Canara Bank dated. 11.09.2023 and 06.09.2023 respectively. It is submitted that the principal amount for which bill was raised initially now paid to opposite party no.2.

5. It is further submitted by learned counsel that it cannot be said that petitioner acted with dishonest intention with opposite party no.2, from very inception of business deal, as he paid initially Rs.5 lakhs, where balance amount was not paid due to financial hardships. It is submitted that the petitioner had to receive payment from M/s. Hindustan Steel Works Construction Ltd. but, as an arbitration proceedings was pending between M/s. NTPC, Kahalgaon and M/s. Hindustan Steel Works Construction Ltd., petitioner could not receive payment within time and, therefore, he failed to pay the balance amount to opposite party no.2 within stipulated period of time, which does not means that petitioner was of dishonest intention.

6. While concluding argument, learned counsel for petitioner submitted that the company i.e. M/s Harji Engg. (P) Ltd. (HEWPL) is a registered company under Indian Companies Act, 1956 and, as such, an independent body, which was failed to implead by complainant as a part