The intention to cheat or defraud must be established from the inception, and belated complaints may raise a presumption of being for pressuring quick realization of due amounts.

JUDGMENT :

Bibhas Ranjan De, J.

1. The instant petition is filed under Section 482 of the Code of Criminal procedure (for short CrPC) to quash the proceeding in connection with Case No. CN/945/2021 for the offence punishable under Section 420/120B/34 of IPC on a written complaint submitted by the opposite party no. 2 under Section 200 of CrPC, wherein Ld. Additional Chief Metropolitan Magistrate (for short ACJM), Calcutta took cognizance of the offence by the order dated 01.10.2021.

2. The fact of the case in brief is that opposite party no. 2 is a proprietorship firm having its office at 164, Mahamta Ganghi Road, P.S.-Burrabazar, Kolkata-07, doing business of ‘sticker/lebel’ manufacturing and supplying. Petitioner No. 1 is a Private Limited Company incorporated under the Companies Act, 1956 and petitioner no. 2 is the director of the said company having its office at 51 Canning Street, Kolkata-07, doing business in the manufacturing of garments for trading and exporting.

3. It is alleged that petitioners/accused placed a purchase order to the opposite party no. 2 who supplied stickers/lebels to the petitioners /accused to the tune of Rs.4,50,000/- (four lakh fifty thousand). Petitioners assured to make payment within one month from the date of supply and indischarge of their legal liability also issued a cheque bearing no. 717582 dated 01.03.2012 of Rs.4,50,000/- in favour of the opposite party no. 2 who deposited the said cheque to his banker but it got dishonoured for the reason of insufficient funds. It is alleged that in spite of demand notice petitioners did not make any payment. Subsequently, on repeated occasions petitioners/accused assured to make payment within a short period of time but failed every time and neglected to keep their commitment.

4. It is alleged that petitioners entered into a criminal conspiracy among themselves and in furtherance of their common intention, dishonestly induced the opposite party no. 2 giving false assurance that they would make payment but ultimately failed and neglected to make payment. Hence, opposite party no. 2 submitted complaint under Section 200 of CrPC before the ACMM, Calcutta for taking action. Ld. ACMM took cognizance of the offence punishable under Section 420/120B/34 of IPC by his order dated 1.10.2021.

5. The present petition is filed challenging the order of cognizance dated 01.10.2021 based on allegations made in the complaint, which is sought to be quashed on following grounds:-

That Cognizance taken by the Ld. ACMM is bad in law and fact

There was no new prima facie case for taking cognizance of any offence punishable under section 420/120B/34 of the IPC

That the entire transaction is civil in nature.

That there is nothing mentioned about initial deception in the written complaint and that is why opposite party no. 2 filed a case under Section 138 of the Negotiable Instrument Act (for short N.I. Act) which was dismissed earlier. Subsequent complaint cannot be entertained on the same.

Argument Advanced:-

6. Ld. Counsel, Mr. Arindam Paul, appearing on behalf of the petitioner has contended that the instant case revolves around the same cause of action as was made out in the case being no. C419868/2014 which was dismissed for non prosecution. According to Mr. Paul the instant case was filed after seven years of the cause of action that too after dismissal of the case filed by the opposite party no. 2 under Section 138 of the N.I. Act for dishonor of cheque. Mr. Paul has also argued that the instant complaint is barred by limitation under Section 468 of the CrPC. It is further submitted by Mr. Paul that there is scope for civil remedy.

7. In support of his contention, Mr. Paul has relied on a case of G. Sagar Suri and another Vs. State of U.P. and others reported in (2000) 2 SCC 636, wherein the Hon’ble Apex Court laid down the following principle that invoking the jurisdiction of a criminal court for allegedly having committed offences under Sections 406/420 of IPC by the appellant