The judgment established the importance of 'mens rea' in the offense of cheating and emphasized the distinction between civil disputes and criminal offenses.

JUDGMENT

Ajoy Kumar Mukherjee, J. - Being dissatisfied and aggrieved with the proceeding, namely, Case No. C-94 of 2018 under Sections 420/406/120B of the Indian Penal Code pending before the Court of the Learned Judicial Magistrate, 5th Court, Sealdah, including the Order No. 1 (undated) and an order dated 12th November, 2018 passed in connection therewith, present application under Section 482 of the Code of Criminal Procedure has been preferred.

2. It is submitted on behalf of the petitioners that on or about 16th February, 2018, the opposite party no. 2 filed a complaint before the Court of the Learned Additional Chief Judicial Magistrate at Sealdah alleging commission of offence under Sections 406/420/120B of the Indian Penal Code against the petitioners on the allegation that the opposite party no. 2 was appointed as a Sub Contractor by the petitioners/company to execute several civil works for M/s. Bhushan Power & Steel Limited at the site of Thelkali, Orissa. Though the petitioners/Company paid the bill amount as raised by opposite party no. 2 for several civil works from 2003 till 2009, yet the petitioners/Company did not release 5 per cent of the bill amount being the security deposit amount which was kept with the petitioner No.1 /Company and it was agreed to be released after completion of the entire work. In the year 2009, when all works was completed, then despite repeated reminders by the opposite party no. 2, the said 5 per cent security deposit amounting to Rs. 65 lakhs, is still lying with the petitioners/Company.

3. It is submitted on behalf of the petitioners that opposite party no. 2 has not filed a single piece of document along with the complaint petition to show any such work was done during the period 2003 to 2009. The petitioners further state that vide Order No. 1 Learned Additional Chief Judicial Magistrate at Sealdah was pleased to take cognizance and transferred the case to the Court of the Learned Judicial Magistrate, 5th Court at Sealdah. After receipt of the record, vide Order dated 8th March, 2018 the Learned Magistrate was pleased to fix 9th March, 2018 for deposition of the opposite party no. 2 and in the deposition the opposite party no. 2 admitted that she has already received 95 per cent of the entire dues arising out of the work assigned to him. On 12th November, 2018 the Learned Trial Magistrate was pleased to issue process in the nature of summons against the petitioners.

4. Mr. Sandipan Ganguly, Learned Senior Advocate appearing on behalf of the petitioners submits that the order of taking cognizance by the concerned magistrate depicts complete non-application of mind and Learned Magistrate has erred in understanding that the act of taking cognizance is a judicial one and the same must be preceded by application of mind. Learned Magistrate was oblivious of the well-settled position of law that criminal law cannot be set into motion as a matter of course. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary to satisfy that there are sufficient grounds for proceeding but unfortunately in the present case the concerned Magistrate had acted like a post office.

5. Mr. Ganguly further submits that the petitioners are permanent residents of different States which fall outside the territorial jurisdiction of the Learned Trial Magistrate and the amended provision of Section 202 of the Code of Criminal Procedure stipulates, where the accused is residing at a place beyond the area in which he exercises his jurisdiction, Magistrate should postpone the issue of process against the accused and should inquire the case either by himself or he will direct an investigation to be made by a Police Officer or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding. From the perusal of the order impugned dated 12th November, 2018 it is clear that no such inquiry or investigation was made by the Magistrate o