Criminal proceedings under IPC require evidence of mens rea and deception from inception; mere non-payment of loans does not constitute a crime without fraudulent intent.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. The instant revision revolves around an application with a prayer for quashment of proceedings being case no. CN/470/2020 under Sections 420/406/120B of the Indian Penal Code (hereinafter referred to as IPC), presently pending before the Ld. Metropolitan Magistrate, 8^th Court, Calcutta.

Backdrop:-

2. The genesis of the impugned proceeding is a complaint made by the opposite party herein against the petitioners before the Court of Ld. Additional Chief Metropolitan Magistrate (for short A.C.M.M). Calcutta alleging inter alia that the opposite party provided a loan of Rs. 15 lacs through RTGS along with interest @ 17% per annum purely on a short term basis i.e. a period of 120 days from October 25, 2011. Thereafter, the said loan was renewed from time to time for a period of 120 days each and upon every renewal fresh cheques were issued and previous cheques were replaced. But on one occasion when the petitioner had issued cheques to the opposite party towards payment of principal amount, the said cheques were returned dishonored with remarks "funds insufficient." Thereafter, on 22.01.2020 when the opposite party demanded the principle amount from the petitioner, the petitioner refused to pay such amount and as a sequel a legal notice dated 04.02.2020 was sent by the opposite party to the petitioner. Since an amount of Rs. 15,00,000/- had been lying due in respect of refund of principal amount, the opposite party filed a complaint alleging commission of offences under Section 406/420/120B of the IPC against the petitioner wherein the Ld. A.C.M.M. was pleased to take cognizance of the said complaint vide order dated 29.06.2020 and transferred the same to the Court of Ld. Metropolitan Magistrate, 8th Court, Calcutta for disposal. Ld. Magistrate issued summons and examined one witness under Section 200 of the Code of Criminal Procedure (for short CrPC) and accordingly issued process against the petitioner. Being aggrieved with the impugned proceeding, the petitioner approached this Court with a prayer for exercise of inherent jurisdiction.

Argument advanced:-

3. Mr. Ayan Bhattacharjee, Ld. Senior Counsel, appearing on behalf of the petitioner has argued that it is an admitted position which is also stated in the complaint that a loan was provided by the opposite party to the petitioner in the year 2011 and it was renewed from time to time. It is also not disputed that payment of interest component to the tune of 17% per annum has also been paid by the petitioner till 2019. Therefore, the element of deception from inception is completely absent which is sine qua non for constituting an offence of cheating under Section 420 of the IPC.

4. Mr. Bhattacharjee has further submitted that there are material suppression of facts in the complaint in order to maliciously institute criminal proceedings against the petitioner with an ulterior motive for wrecking vengeance. The fact that the petitioner has time and again made payment to the tune of Rs. 8,27,115/- to the opposite party towards service of loan has been intentionally suppressed in the complaint. Moreover, when the opposite party initiated proceeding under the Negotiable Instrument Act (for short N.I. Act) against the petitioner for return of the three (3) cheques which were issued by the petitioner towards payment of interest, an amicable settlement took place between the par