Criminal prosecution for cheating requires evidence of fraudulent intent from the inception of the transaction; mere inability to repay a loan does not suffice.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The petitioners in both the applications being CRR 1846 of 2022 and CRR 4208 of 2022 have been arraigned as accused persons in respect of a criminal proceeding being CN 632 of 2022 alleging commission of offence punishable under section 405/406/415/420/34 and 120B of the Indian Penal Code, which is now pending before the Judicial Magistrate, 19th Court, Calcutta.

2. The complaint states that accused no. 1 is the sole proprietor of Mongal Enterprises and accused no. 2 and 3 are the personal gurantors for the financial assistance made by the complainant to the accused no. 1, the accused no. 4 is the authorized signatory and engaged in day to day business of Mongal Enterprises. In September 2016, accused persons in conspiracy with each other approached the opposite party complainant for a financial accommodation of Rs. 40 lakhs for the purpose of sustaining their family business. Accused no. 2 and 3 stood as gurantor and they also represented that the proprietorship concern is worth more than Rs. 600 crores and there would be no difficulty in repayment of said financial assistance. Believing on the representation of accused no. 1 and unconditional assurance/gurantee issued by accused no. 2 and 3, complainant/opposite party herein extended financial accommodation of Rs. 40 Lakhs in two tranches on 16.09.2016 and 22.12.2016, on condition that such sum shall be repaid by the accused no. 1 within a period of six months from the date of disbursement of aforesaid sum along with accrued interest. Thereafter on 31.03.2017 accused no. 1 made payment of Rs. 10 lakhs towards repayment of the principal sum of 40 lakhs and the accused persons assured that the remaining principal sum of Rs. 30 lakhs will be paid within a very short period. The further case of the complainant is that believing upon the representation of the accused persons he agreed to renew the financial assistance of principal sum of Rs. 30 lakhs along with interest on condition that the same shall be repaid on demand by the complainant. In line of the same, accused no. 1 however continued to make payments of the interest amount which accrued on the principal sum of Rs. 30 lakhs acknowledging their liabilities to repay the principal amount with interest up to date. In order to regain the complainants trust, accused persons handed over two cheques one for Rs. 30 lakhs and the other for Rs. 93,205/- both dated 31st March, 2020 towards repayment of remaining principal sum along with interest on the said amount. Thereafter accused no. 4 on behalf of the accused no. 1 and 3 in response to the email dated 10th August, 2020, expressed their inability to repay the financial assistance along with interest and thereby assured that the pending dues shall be disbursed soon. It is alleged in the complaint that the accused persons knowingly and intentionally committed an act of fraud upon the complainant by making false representation and by not paying the admitted dues and the accused persons are jointly and severally liable to pay the entire amount, due and payable to the complainant with interest up to date. The accused persons never had any intention to repay the loan taken from the complainant and from the very inception made such false and frivolous representation only to induce the complainant to believe such false representation. Therefore, the accused persons in a calculated and pre meditated manner have caused wrongful loss to the complainant to the tune of total outstanding of Rs. 30 lakhs as principal sum plus Rs. 4,42,568/- as interest accrued and have cheated the complainant herein.

3. learned Magistrate after considering the complaint was pleased to take cognizance of the offence and thereafter on examination of the complainant’s witnesses issued process against the accused persons vide order dated 01.04.2022.

4. Being aggrieved by the aforesaid proceeding, Mrs. Sanyal learned counsel appearing on behalf of the petitioners submits that from