A mere breach of contract does not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction.

JUDGMENT

1. This application has been filed under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 by the petitioner seeking quashing of the complaint proceeding being C.S. No. 15180 of 2021 pending before the learned Court of the 19th Metropolitan Magistrate at Calcutta in connection with offences punishable under Sections 406/411/417/418/420/422 of the Indian Penal Code, 1860.

2. Gist of the petitioner’s case is that opposite party no. 2 has initiated a complaint under Section 200 of the Code of Criminal Procedure before the learned Chief Metropolitan Magistrate, Calcutta on the allegation that the petitioner and the opposite party no. 2 had a business relationship since sometimes and the opposite party no. 2 used to supply tea to the petitioner. The petitioner used to pay the outstanding dues amount of any transaction in time by way of liquid cash/cheque. On such good faith and his continuous relationship, the opposite party no. 2/company supplied a huge amount of tea to the petitioner on different invoices as per the specification and order placed by the petitioner but the petitioner failed to pay a total outstanding amount of Rs. 4,99,042/- only. Opposite party faced a huge loss thereof due to cheating by the petitioner by showing esteemed reputation and goodwill. It is further alleged that the petitioner concern received the materials in good condition as specified as per the request and order of the petitioner’s proprietorship concern. It is further contention of the petitioner that the learned Court below whimsically issued summon against the present petitioner after taking cognizance though the entire case is purely civil in nature. The case is pending before the learned Court of the 19th Metropolitan Magistrate at Calcutta after transferred by the learned Chief Metropolitan Magistrate, Calcutta for disposal.

3. In spite of service, the opposite party no. 2 did not turn up at the time of hearing. Hence, the record is taken up for hearing on merit.

4. Mr. Kallol Mondal, learned counsel appearing on behalf of the petitioner, submitted that such a criminal case under Sections 406/411/417/418/420/422 of the Indian Penal Code, 1860 cannot be fastened upon the petitioner, when it is a civil dispute pending between the parties regarding supply of inferior quality of tea. Opposite party no. 2 had supplied tea not as per the specification of the petitioner rather supplied inferior quality of Tea. Petitioner is ready to pay the outstanding dues but opposite party no. 2, without resolving the grievances made by the petitioner, filed a criminal case under Section 200 read with Section 190 of the Code of Criminal Procedure, 1973. The dispute between the parties is purely a case of civil in nature as the complaint has only arisen from the dispute regarding quality of supplied tea and non payment of outstanding dues, which in itself is a business dispute as such same cannot be converted to a criminal case. Accordingly, he prays for quashing of the said proceeding being C.S. No. 15180 of 2021 pending before the learned Court of the 19th Metropolitan Magistrate at Calcutta in connection with offences punishable under Sections 406/411/417/418/420/422 of the Indian Penal Code, 1860.

5. It is further submitted that the opposite party no. 2 has not made out any case against the present petitioner under Sections 406/411/417/418/420/422 of the Indian Penal Code, 1860. Despite of the said facts, the learned Court below took cognizance and issued summon against the present petitioner though there was neither fraudulent nor dishonest intention was present at the time of placing order as such criminal case initiated against the petitioner is tantamount to abuse of process of law as such same is required to be quashed.

6. Learned counsel relied on several judgments of the Hon’ble Supreme Court and High Court to support his aforesaid contentions. These are as follows :-

1). Samir Sahay @ Sameer Sahay vs. State of U