Mere breach of contract does not constitute the offence of cheating under Section 420 IPC.

Arunabha Basu, J.

Both the revisional application filed under section 482 of the Code of Criminal Procedure (hereinafter called the Code) is directed to quash the proceeding in connection with the B.G.R. Case No. 2063 of 2004 now pending before the Court of learned Additional Chief Judicial Magistrate, Alipore.

2. The petitioners herein are arrayed as accused in connection with the above-noted criminal case which was instituted by the O.P. against the petitioner by filing a petition of complaint to the learned Chief Judicial Magistrate, Alipore. The learned Chief Judicial Magistrate directed registration of the case and initiation of investigation in terms of provisions under section 156(3) of the Code.

3. The allegation against the petitioner that the company of the petitioner namely, M/s. Calvin Basil Info Solution Pvt. Ltd. being represented by other accused persons entered into an agreement with the complainant company whereby it was agreed between the parties that accused company will generate business for the complainant company to the extent of Rs. 6 croes in the financial year 2003-04. It was further agreed that in case the accused company fails to generate the business as per agreement the accused company shall return 75% amount of the fees out of total fees received by it. Consequent to the said agreement the complainant company on 8th July, 2003 paid a sum of Rs. 60 lacs to the accused company in anticipation that they will receive order of 6000 pieces of computers from the Government of Chattisgarh and also from other Government of the country. The aggregate value of such business will be around Rs. 6 crores. The accused persons could not procure any contract in favour of the complainant company. Subsequently, the complainant company sent a letter to accused company but the same was returned with the postal endorsement "refused". Over this occurrence the above-noted criminal case was instituted.

4. In the revisional application the main contention of the petitioners is that the allegations in the petition of complaint, even if taken in its entirety do not disclose commission of any offence by the petitioners. There is no allegation that since the inception of the transaction the accused persons had no intention to honour the same. There is also no recital in the petition of complaint that the accused persons knowingly and intentionally gave false promise and the complainant company was induced or deceived by the accused company to part with the money. It is further submitted that mere breach of contract does not attract criminal prosecution and remedy of the complainant, if any, lies initiation of the civil proceeding. It is further stated that there was subsequent agreement executed on 29th November, 2006 between the Managing Director of the complainant company and the Managing Director of the accused company whereby it was agreed that the amount shall be paid by the accused company by depositing 3.15 lacs within December, 2006 and the remaining amount shall be paid in equal instalment of Rs. 50,000/- per month for the first six months and the rest amount by equal instalment of Rs. 1.4 lacs for the next 30 months. It was further agreed between the parties that the criminal case instituted by the complainant company against the accused company shall be withdrawn. The petitioners on these grounds moved this Court for quashing the aforesaid criminal proceeding.

5. The learned Advocate for the petitioner during the course of his submission pointed out that the recital in the petition of complaint which was lodged before the learned Chief Judicial Magistrate does not disclose that there was any intention on the part of the petitioners since inception of the transaction between the parties that the petitioners induced the complainant company to enter into the contract and the complainant company being deceived by such inducement paid a sum of Rs. 60 lacs to the accused company.

6. In support of his contention the lear