The court emphasized that the absence of fraudulent or dishonest intent at the inception of a transaction is crucial in determining the offense of cheating or criminal breach of trust, and that delay in presenting cheques for encashment suggests the absence of criminal intent.

Prasenjit Mandal, J

This application under Article 227 of the Constitution of India read with Sections 401 and 482 of the Code of Criminal Procedure, 1973 is at the instance of the accused persons and is directed against the complaint case no.C/36 of 2009 filed before the learned Additional Chief Metropolitan Magistrate, Calcutta, which was treated as First Information Report under Section 156(3) of the Cr.P.C., 1973.

The fact of the case in short is that the opposite party no.2 and his wife have money lending business without any licence. They have no other trade or employment save and except money lending business without any licence. The petitioner no.1 is very much known to the opposite party no.2 and his wife. The petitioner no.2 took a loan of Rs.3,00,000/- on 01.09.2007 on condition that the petitioner no.2 shall have to pay interest at the rate of 3.5% per annum. On conversation it was decided that the loan was given for a period of three months only and for that reason the opposite party no.2 would get interest to the tune of Rs.30,000/-for the said period at the rate of Rs.10,000/- per month of which the first month interest was taken by the opposite party no.2 by cash in advance. The petitioner no.2 could not repay the loan within three months and he was paying interest at the rate of Rs.10,000/- per month up to December, 2008. Thus, he paid Rs.1,60,000/-as interest over the loan amount of Rs.3,00,000/- within 16 months. The petitioner could not pay the principal amount up till now. The petitioner no.2 issued cheques in favour of the opposite party no.2 for the said loan and the petitioner no.1 also executed cheque in favour of the opposite party no.2 as guarantor for the said transaction. Thereafter, another loan of Rs.5,00,000/-was given to the petitioner no.2 on interest by the wife of the opposite party no.2 and necessary papers for agreement were executed. Interest was determined at the rate of 4% per annum to be paid in cash. The opposite party no.2 was in the habit of cancelling the agreement and the cheques issued, when full repayment with regard to the loan with interest was made. The opposite party no.2 deposited the cheques issued by the petitioner no.2. But the cheques bounced with the remark that the account of the petitioner no.2 had been closed. Suppressing all the materials facts, the opposite party no.2 filed the complaint case no.C/36 of 2009 before the learned Additional Chief Metropolitan Magistrate, Calcutta under Sections 406/420/120B of the I.P.C. on 15.01.2009. That petition of complaint was forwarded to the Shyampukur P.S. for investigation and accordingly Shyampukur P.S. case no.23 dated 21.01.2009 under Section 406/420/120B of the I.P.C. was started. Thereafter the accused petitioners have preferred this application for quashing the proceedings. Mr. Tewari, the learned Advocate for the petitioner submits that the opposite party no.2 is in the habit of granting loan to different persons and for that purpose he takes different documents including agreement for repayment, cheques, etc. to be executed by the loanee and the guarantor. Thereafter upon payment of the full amount along with interest, the opposite party no.2 returns those papers to the respective parties after making pen through on the papers. The opposite party no.2 did not file any case under Section 138 of the N.I. Act but he filed the case only to create pressure upon the petitioners so that the money could be realised at early. Even he did not file any civil suit for realisation of the money. The transaction between the petitioners and the opposite party no.2 is clearly a commercial transaction.

There was no element of cheating and breach of trust initially and at the time of execution of the documents. So the accused petitioners could not be charged at all for the offence punishable under Section 406/420/120B of the I.P.C. The proceedings against them should be quashed.

On the other hand, Mrs. Krishna Ghosh, learn