A mere breach of contract, without any evidence of fraudulent or dishonest intention, does not constitute the offense of cheating under Section 415 of the Indian Penal Code.

Shib Sadhan Sadhu, J.

1. This petition under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity) has been filed by the petitioners praying for quashment of the proceedings being G.R. Case No.645 of 2008 arising out of Hare Street P.S. Case No.119 dated 10th March, 2008 under Sections 420/120B of the Indian Penal Code pending before the Court of Learned Metropolitan Magistrate, 5th Court, Calcutta.

2. A Written Complaint was lodged by the complainant Kirit Kumar Shah (O.P. No.2 herein) against the present petitioners on 07.09.2007 for the offence punishable under Sections 420/120B IPC and Section 29 of the SERFAESI Act, 2002 in the Court of Learned Chief Judicial Magistrate, Alipore, South 24-Parganas under Section 156(3) of the Cr.P.C. That complaint was sent to the O.C., Bhowanipur P.S. for investigation and on receipt of that complaint Bhowanipur P.S. Case No.287 dated 01.11.2007 under Section 420/120B IPC and Section 29 of the SERFAESI Act, 2002 was registered and investigation was taken up. During investigation it transpired that all the transactions were held under the jurisdiction of Hare Street P.S. As such the said FIR and the case diary were duly submitted before the Learned Chief Judicial Magistrate, Alipore for forwarding the same to the O.C., Hare Street P.S. through the Learned Chief Metropolitan Magistrate, Calcutta. On receipt of the said records, the Learned Chief Metropolitan Magistrate, Calcutta directed the Officer-in-Charge, Hare Street P.S. for further investigation and accordingly Hare Street P.S. Case NO.119 dated 10th March, 2008 was registered and after completion of investigation charge-sheet was submitted against the present petitioners for the offence punishable under Sections 420/120B IPC. Feeling aggrieved against the same, the present Revisional Application was filed by the petitioners.

3. As per the written complaint the accused/petitioners who are the Deputy General Manager and Assistant General Managers of Union Bank of India took possession of the premises No.266/4, N.S.C.Bose Road, P.S. Tollygunge, Kolkata-40, measuring more or less 5 kathas as per the provision of Section 13(4) of the SERFAESI Act, 2002 as the borrowers Pradip Kumar Das and his co-sharers failed to pay off the loan amount to the said bank. After taking possession of the said premises the accused/petitioners published an ‘Auction Notice’ dated 14.12.2006 in the Bengali Daily Newspaper ‘Aajkal’. Gathering information from such Notice the complainant / O.P. No.2 took part in the auction held by the accused persons on 16.01.2007 at 11.30 a.m. and he was considered the highest bidder and the accused persons issued such certificate in his favour along with the terms of payments and the bid amount was fixed at Rs.30,21,000/- (Rupees Thirty lacks twenty one thousand only). The complainant/ O.P. No.2 paid Rs.1,000/- only by means of cheque for participation in the auction and on that very date he also paid earnest money of Rs.17,500/-. Thereafter, as per direction of the accused persons he further paid Rs.7,37,750 (Rupees Seven lacks thirty seven thousand seven hundred fifty only) being 25% of the bid amount by means of a cheque dated 17.11.2007 drawn on State Bank of Saurastra, Kolkata. Thereafter, they had discussion and the accused persons handed him over a draft copy of sale deed with the assurance of completing the registration deal and handing over possession of the said premises on payment of the balance amount of Rs.22,65,750/- (Rupees Twenty two lacks Sixty five thousand Seven hundred fifty only). The complainant/O.P. No.2 approached the accused persons on 31.01.2007 to allow him some time for payment of the balance amount and it was allowed. It has been further alleged that on 08.02.2007 the complainant/ O.P. No.2 came to learn that a litigation was pending before the High Court, Calcutta in respect of the self same propert