Non-payment in a commercial transaction does not constitute criminal breach of trust or cheating unless there is evidence of dishonest intention from the inception.

JUDGMENT :

(Ajay Kumar Gupta, J.)

1. Petitioners have filed this Criminal Revisional application under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of the Impugned Order dated 26th March, 2018 passed by the Court of the Learned Judge, Bench-I of City Sessions Court at Calcutta in Criminal Revision No. 174 of 2017 thereby affirmed the Order dated 17th April, 2017 passed by the Court of the Learned Metropolitan Magistrate, 3rd Court at Calcutta in connection with Case No. CN-11778 of 2017 under Sections 406/420/120B of the Indian Penal Code, 1860.

2. By the said impugned order dated 17th April, 2017, the Learned Metropolitan Magistrate has taken cognizance under Sections 406/420/120B of the Indian Penal Code, 1860 on the basis of a petition of complaint filed along with affidavit and documents before the Learned Magistrate. The Learned Magistrate, in the said case, examined the complainant as well as another witness under Section 200 of the Code of Criminal Procedure, 1973 and after going through the initial deposition of both witnesses and as per the documents produced by the complainant, a prima facie case was found to be made out against the accused persons under Sections 406/420/120B of the Indian Penal Code, 1860 and ultimately issued summons against the accused persons and fixed a date on 06.06.2017 for S/R and Appearance. The impugned order, under challenge, is set out herein below: -

“Today is fixed for S/A.

Complainant is present along with all original documents.

Complainant and the witness is examined U/s 200 Cr.P.C.

Having gone through the initial deposition of both the witness and as per the document produced the complainant, a prima facie case U/s 406/420/120B of Indian Penal Code is found to be made out against the accused person.

Hence, issue summons against the accused persons U/s 406/420/120B of Indian Penal Code.

Fix 06.6.17 for S/R and Appearance.

Requisites at once.”

3. The brief facts of the instant case are that one Prem Kumar Agarwal, by virtue of a special power of attorney dated 28th July, 2016, executed in his favour by M/S India Trading Oil Company (herein after referred as ‘the Complainant’) filed a petition of complaint under Section 200 of the Cr.PC before the Learned Additional Chief Metropolitan Magistrate at Calcutta and same was registered as CN – 11778 of 2017. In the said petition of complaint, the complainant alleges that in or about June 2015, the accused persons had proposed to buy Furnace Oil. Based on this proposal and believing the accused persons to be of high repute, the complainant agreed to sell different quantities of the furnace oil to all of accused on different occasions worth to a total of Rs. 14,74,772/-.

4. The said products were duly accepted by the accused without any demur or protest regarding their quality or quantity. Despite invoices being issued on the respective dates of supply of furnace oil, the accused persons failed, neglected and/or ignored to make the payment of invoices upon demand, the accused persons avoided payment under various pretext and, subsequently, the accused persons snapped all contacts with complainant. As such, the petitioners had intention to cheat the complainant from the outset for their wrongful gain, thereby caused wrongful loss to the complainant to the tune of Rs. 14,74,772/- and they have also misappropriated aforesaid sum with mala fide intention. Accordingly, they have committed an offence under Sections 406/420/120B of the Indian Penal Code, 1860.

5. Whereas the contention of the petitioners is that the Learned Judge has failed to appreciate that non-payment/under payment, ipso facto, does not make out a criminal offence. The petitioners are innocent and are in no way connected with the instant case for criminal offence. In order to enforce the civil claim, the complainant has been dressed of as a criminal offence.

6. It is further the contention of the petitioners that they had paid Rs. 3, 05, 20,532/- to the opposi