A mere breach of a promise, agreement, or contract does not, ipso facto, constitute the offence of criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.

JUDGMENT :

Shampa Dutt Paul, J.

1. The present revision has been preferred praying for quashing of the proceeding in Case No.CN 11727 of 2017 under Section 406 of the Indian Penal Code, 1860 pending before the Court of the learned Metropolitan Magistrate, 18th Court at Calcutta including the Order of Cognizance (undated) and Order dated May 6, 2017 passed therein.

2. The petitioner's case is that the petitioner no.1 is a Company within the meaning of the Companies Act, 2013 and duly incorporated under the provisions of the Companies Act, 1956 having its registered office at the address as mentioned in the cause title hereinabove.

3. On or about February 23, 2017 the opposite party no.2 herein filed a complaint before the Court of the learned Additional Chief Metropolitan Magistrate at Calcutta, alleging commission of offences under Section 406 of the Indian Penal Code, 1860 against the petitioner on the allegations that the “proprietor” of the petitioner approached the opposite party no.2 for expansion of the business of the opposite party no.2. On the assurance of the “proprietor” of the petitioner, the opposite party no.2 agreed to start the business with the petitioner and supplied some medicines on credit on the condition that after selling of those medicines, the petitioner would repay the amount to the opposite party no.2. However, no amount was paid by the petitioner and thereby the petitioner cheated the opposite party no.2 to the tune of Rs.4,13,182/-.

4. The learned Additional Chief Metropolitan Magistrate at Calcutta was pleased to take cognizance.

5. It is stated by the petitioner that the petitioner had a long standing business relationship with the opposite party no.2 and during the course of such business, the petitioner had already effected payment to the opposite party nos. 2 to the tune of Rs.53,758,50.00/-which will be evident from the account ledgers and the business between the parties stood concluded upon payment of Rs.5,25,783/-vide cheque No.162507 dated 23.09.2015.

6. The petitioner states that the alleged amount which has been shown as due, has been illegally and wrongfully claimed and is devoid of any details and particulars. It has been conspicuously suppressed by the complainant that the purported due relates to the transaction for the period prior to 2015 and the same is a sham claim as, long prior to initiation of the instant complaint, the complainant issued illegal demand notices on 25.11.2015, 11.03.2016 and 12.05.2016 which from time to time has been dealt with appropriately denying the alleged claims as non est inter alia, on the ground that the claim purportedly raised on account of interest is beyond the terms of the purchase order as well as the business arrangement followed and practiced by the parties.

7. The claim raised by the complainant suppressing vital facts amounts to fraud practiced in gross abuse of process of law, to circumvent the law of limitation and pressurize the petitioner to succumb to the wrongful and illegal claim of the complainant by way of arm-twisting tactics.

8. The petitioner is in no way involved in the offences as wrongfully alleged, as it would be ex facie evident from the facts of the case that the instant case has been instituted to harass and prejudice the petitioner in abuse of process of law.

9. Vide letter dated November 25, 2015, the opposite party no.2 issued a statutory notice thereby demanding a sum of Rs.3,35,300.91 from the petitioner.

10. In response to such notice, vide email dated December 23, 2015, the petitioner had pointed out that the petitioner had already cleared the due amount to the opposite party no.2 by making payment on various dates lastly on September 23, 2012.

11. The opposite party no.2 had thereafter issued a legal notice dated March 11, 2016 which was replied to by the petitioner vide letter dated April 25, 2016 wherein the petitioner pointed out the frivolity of the claim of the opposite party no.2.

12. Suppressing the aforesaid letter, vi