Mere breach of contract cannot constitute cheating or criminal breach of trust without evidence of fraudulent intent; suppression of material facts by the complainant invalidates the proceedings.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Petitioners herein have sought for quashing of the proceeding being G.R case no. 1655 of 2014, pending before the court of learned Additional Chief Judicial Magistrate, Serampore under section 406/120B/468/506/34 of the Indian Penal Code.

2. The opposite party no. 2 herein filed a complaint before the Magistrate for a direction in terms of section 156(3) of the Code of Criminal Procedure upon the concerned police station to treat petition of complain as FIR and to start investigation. Upon learned magistrate’s direction instant Uttarpara police station case no. 290/ 2014 was started.

3. The allegation levelled in the said complaint inter alia to the effect that the opposite party no. 2 is one of the Directors of M/S A.D Nirman Pvt. Ltd and as a promoter he had to take loans from different person including the petitioner no. 1 herein and in turn he had to execute two agreements, showing payment of Rs.3,90,000/- for a flat measuring 150 sq. ft. It is stated that after completion of multi-storeyed building, the opposite party no. 2 had to take shelter at a different place due to some other litigations but before leaving the site area, due to inducement made by petitioner no. 1, the opposite party no. 2 herein/complainant executed one power of attorney on 25.08.2006 in the name of petitioner no. 2 in respect of two flats measuring 860 sq. ft. in the first floor and a flat measuring 600 sq. ft. in the second floor in the said multi-storeyed building raised by the opposite party No.2. Said power of attorney was executed on the basis of cordial relationship with an understanding that the consideration price which will be received after selling the said property shall be deposited in the bank account of opposite party no. 2. It is alleged that in collusion with each other, the petitioner no. 1 and 2 in order to grab the said property on the strength of the aforesaid power of attorney executed two sale deeds in favour of petitioner no. 3 and 4 and the petitioner no. 3 and 4 thereafter without depositing any consideration amount in the account of opposite party no. 2 had sold the said two flats in favour of accused no. 5 namely Shipra Bera. The opposite party no. 2 thereafter came up with the case that the said two flats have been illegally sold taking advantage of their cordial relationship.

4. Being aggrieved by the impugned proceeding Mr. Milan Mukherjee learned Senior counsel appearing on behalf of the petitioners submits that the petitioners are in no way connected with the commission of the alleged offence and they have been falsely implicated out of garage and ill motive. He further contended that on 10.02.2001 two agreements were executed by three person on behalf of M/S A.D. Constriction with the petitioner no. 1 and among the aforesaid two agreements, the agreement which was executed by the petitioner no. 2 relates to purchase of a shop room in the ground floor and for the purpose of executing said agreement, an amount of Rs.1,60,000/- was paid to the developer out of a total consideration amount of Rs. 1,75,000/-. He further submits that the other agreement executed in between the opposite party no. 2 and petitioner no. 1 herein pertains to purchase of a flat on the 2nd floor.

5. Thereafter on 15.08.2002 another two agreements were executed in between the petitioner no. 1 and 2 separately with the directors of M/S A.D. Nirman Pvt. Ltd. By one agreement dated 15.08.2002, the petitioner no. 1 entered into an agreement with the said developer whereunder the agreement dated 10.02.2001 executed by petitioner no. 2 was cancelled and the petitioner no. 2 agreed to purchase a flat measuring 600 sq. ft. on the 2nd floor of the said premises. In the said agreement it was declared that the petitioner no. 2 in order to purchase the said flat had already paid the entire consideration amount of Rs. 3,90,000/- to the directors of M/S A.D. Nirman Pvt. Ltd. By another agreement dated 15.08.2002, the petitioner