The central legal point established in the judgment is the requirement of dishonest and fraudulent intention from the beginning of the promise or commercial transaction for the offenses of cheating and criminal breach of trust under section 415 IPC.

JUDGMENT

Ajoy Kumar Mukherjee, J. - This revisional application has been preferred for quashing of initiation and continuation of proceedings being G.R. Case No.2508 of 2017 arising out of Balagar P.S. Case No.308 of 2017 dated December 17, 2017 under sections 420/406 of Indian Penal Code (IPC) pending before the court of learned Chief Judicial Magistrate, Hooghly.

2. On December 17, 2017, opposite party no.2 had lodged an FIR, inter alia, alleging that in the year 2017 local farmers of the area stored their potato packets in the Soumil Cold Storage private Limited in respect of which petitioner no.1 is former director and petitioner no.2 was an employee under petitioner no.1. The opposite party no.2 alleged in the First Information Report that at the time of refund of the potato packets, the cold storage authority refused to return the same. On the basis of said FIR, aforesaid Balagarh P.S. Case No.308 of 2017 dated December 17, 2017 under sections 420/406 IPC was started.

3. Mr Chatterjee, learned lawyer appearing on behalf of the petitioners, submits that present disputes between the parties relate to settlement of account and there is no ingredient of the offence punishable under sections 420 or 406 of IPC. Opposite party no.2 with an ulterior motive and mala fide intention initiated the said criminal proceeding against the petitioners without any cogent reason, although the de facto complainant admitted that some payment was received from the petitioners. Opposite party no.2 in order to create a pressure has initiated the criminal proceeding and tried to give a colour of a criminal offence in a purely civil dispute to wreck vengeance against the petitioners.

4. Mr Chatterjee on behalf of the petitioners further submits that to constitute an offence of cheating, deception and dishonest intention, to do or omit to do the same is required under section 415 IPC which comprises of two elements. In the first place, it is essential that the person who delivers the property should have deceived before he makes the delivery; and in the second place, he should have been induced to do so fraudulently or dishonestly. Moreover, dishonest and fraudulent intention must have been present from the very beginning of the promise or commercial transaction. Mere failure to keep the promise at a subsequent stage does not give rise to any criminal offence i.e. cheating or breach of trust. Guilty mind is an essential ingredient to constitute offence of cheating and criminal breach of trust. It is necessary, therefore, to show that the offender had cheated or misappropriated in a dishonest manner. Otherwise, relevant sections of IPC would not attract.

5. Mr Chatterjee further submits that even if the allegation made in the FIR is taken to be true at their face value and accepted in their entirety, it does not prima facie constitute any offence or make out any case against the petitioners. He further submits that the disputes between the parties are contractual and/or commercial, regarding the settlement of account and no element of offence of cheating or criminal breach of trust has been disclosed in the FIR. He also submits that no court proceeding be permitted to degenerate into a weapon of harassment or prosecution. Accordingly, the petitioners pray for quashing the entire proceeding.

6. I have gone through copy of the FIR and the documents filed by the petitioners as Annexures. It appears that on December 17, 2017, opposite party no. 2 Basusdeb Ghosh has alleged in the FIR that in the year 2017 he stored about 2500 packets of potato at Soumil Cold Storage, but at the end of the session he did not get back his potato. He further alleged that many other people of the locality who also kept packets of potato in the said cold storage, did not get back their produce and petitioners herein have misappropriated the said potato packets by defrauding the farmers. At the time of loading, the petitioners have instigated them to store potato in their cold stor