Mere breach of contract, without the intention to cheat at the time of making the inducement, does not constitute the offence of cheating under Section 420 IPC.

Siddhartha Chattopadhyay, J.

This is an application under Section 482 of the Code of Criminal Procedure, wherein the petitioner has prayed for quashing of the F.I.R. on the ground that the evidence collected during investigation does not constitute any offence. He categorically stated that there was a mercantile transaction between the parties for a long time and the present petitioner accused company used to carry on business of selling various types of Self Adhesive Tapes, Plastic Rolls and bags and they used to supply the same to them. There was mercantile transactions for years together. Since 2008 the business transaction was going on and pursuant to their discussion the complainant supplied goods to the petitioner accused company. Payment was to be made in terms of the oral agreement, but accused company always give assurance to them but actually did not pay. In the meantime, the dues became about Rs. 22,23,005/-.

2. Several reminders were sent by the complainant to the present petitioners but to no good. According to the complainant, the present accused Nos. 2 and 3 deliberately and fraudulently kept giving false assurance with the oblique motive of delaying disbursement of the legitimate dues. The complainant further added that believing such inducements and fraudulent representations, he has supplied the goods to the accused company.

3. Challenging the contention of the F.I.R., the accused petitioner submitted that there is no element of mens rea, no element of intention to cheat or there is any type of fraudulent act. So according to them, the F.I.R. should be quashed.

4. Learned Counsel appearing on behalf of the petitioner has relied on the decision reported in (2003) SCC (Cri) 703, (Ajay Mitra v. State of M.P. & Ors.). While delivering the judgment, the Hon'ble Apex Court held 'a guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. In order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Unless the complaint speaks that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 I.P.C. and it may only amount to breach of contract.'

5. Learned Counsel appearing on behalf of the state contended that Section 420 I.P.C. may lie. In the said judgment of the Hon'ble Apex Court, it has been made clear where the charge against the accused is under Section 420 I.P.C. it is to be shown that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but will not pay. If the accused had at that time promised to pay cash against delivery, and the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand, he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods in that case offence of cheating would be established.

6. Learned Counsel appearing on behalf of the petitioner relied on the decision reported in (2005) 10 SCC 336, (Uma Shankar Gopalika v. State of Bihar & Anr.). In the said judgment, Hon'ble Apex Court has clearly held "now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120- I.P.C. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/-, they would pay a sum of Rs. 2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the compl