The ingredients required to constitute the offenses of criminal breach of trust and cheating were not prima facie present against the petitioners.

JUDGMENT :

Shampa Dutt Paul, J.

1. The present revision has been preferred praying for quashing of the proceeding being Complaint Case No. CS/0088331/2016 under Sections 406/420 of the Indian Penal Code now pending before the Learned Metropolitan Magistrate, 8th Court, Calcutta.

2. The petitioners’ case is that the opposite party no. 2 in the complaint dated 25.05.2016 has stated as follows :-

i. That during the period 2008 to 2016 the petitioners supplied defective goods worth Rs.6,92,90,762/- which is still lying in the godown and the petitioners herein have failed to pay or refund the amount nor did they replace the defective goods with new one and that letter of credit that is required to be made within 90 days had already been made in terms of the agreement.

ii. That the complainant company on several occasions requested the petitioners to pay the money back but a total sum of Rs. 6,92,90,762/- is still lying outstanding to be payable by the petitioners herein and that the complainant being the opposite party no. 2 is entitled to get an interest on the sum outstanding at the rate of 18% per annum and also to have a sum of Rs.68,460/- as compensation for blocking the godown of the complainant with the defective goods of the petitioners.

iii. That the complainant has also sent a demand notice to the petitioners through their learned advocate but the petitioners have not cleared the outstanding dues.

iv. That the petitioners have cheated and caused breach of trust by having mislead the opposite party to enter into the agreement which ought not to have been entered into if the complainant knew that they will not get the money back on complaint of defective goods.

3. That M/s. Compact Lamps Pvt. Ltd., a company registered under the provisions of Companies Act by an order dated 11.01.2019 passed by National Company Law Tribunal, New Delhi Bench, in connection with an application under Section 9 of the Insolvency and Bankruptcy Code being No.(IB)1372(PB)/2018, was declared insolvent and an order or moratorium was passed.

4. Mr. Angshuman Chakraborty, learned counsel for the petitioners has submitted that the allegations as labeled in the petition of complaint is solely private and purely civil in nature since the same revolves around allegations regarding breach of terms of an agreement, and moreover the averments in the petition of complaint is expressive that the opposite party has claimed a sum of money with interest which can never be the domain of the sections in which the case has been started and is pending against the petitioners and hence the same is liable to be quashed.

5. The following judgments have been relied upon by the petitioners:-

(i) Prem Kumar vs. State of Rajasthan & Anr. reported in (2020) 20 SCC 623;

(ii) Nageshwar Prasad Singh alias Sinha vs. Narayan Singh & Anr. reported in (1998) 5 SCC 694.

Both these judgments relate to dispute in respect of landed property.

6. Mr. Imtiaz Ahmed, learned counsel for the opposite party no. 2 has submitted that the complainant has all along been demanding replacement of defective articles and his dues, but the petitioners have failed to do so in spite of notice. The complainant has made out a prima facie case against the petitioners as alleged and as such the case should be permitted to proceed towards trial and the revision be dismissed.

7. The relevant statements made by the complainant in the written complaint are:-

i) The complaint was filed by the complainant being authorized by the Board of Directors resolution dated 12th February, 2016.

ii) The parties herein entered into an agreement in the year 2008.

iii) The procedure which was followed by the complainant company was that they would place orders with the accused no. 1 for supply of goods and the accused nos. 2 and 3 used to accept and act upon the same. The essential terms of the agreement between the parties are recorded in the purchase orders. The terms include delivery period of 30 days from the date of receipt of purchase