JUDGMENT :

MIR ALFAZ ALI, J.

1. By this application under section 482 Cr.P.C., the petitioners have prayed for setting aside the order dated 27-04-2018, whereby the learned Judicial Magistrate took cognizance against the petitioners under Sections 406/420/120(B) IPC read with Sections 65/66/72A/85 of the Information Technology Act, as well as for quashing the criminal proceeding in C.R. Case No. 47/2018, pending in the court of Judicial Magistrate 1st Class, Jorhat.

2. Mr. M. Sharma, learned counsel for the petitioners and Mr. J.C. Gaur, learned counsel for the respondent No. 2 were heard.

3. The respondent No. 2 lodged a complaint against the present petitioners, whereupon, the learned Judicial Magistrate took cognizance against the petitioners and issued process.

4. Aggrieved by the order passed by the learned Magistrate taking cognizance and also the initiation of the criminal proceeding, the petitioners, who were arrayed as accused persons in the complaint, have filed the present petition seeking quashment of the proceeding, basically on the ground, that the complaint did not disclose any criminal offence and the dispute as alleged by the complainant was purely civil in nature arising out of a commercial contract, and as such, the present criminal proceeding is abuse of the process of the court.

5. Learned counsel for the petitioners contended, that the petitioners completed the work, as per the contract entered into between the parties but the complainant/respondent No. 2, in order to avoid the balance payment, due to the petitioners, instituted the false criminal case. Learned counsel further submitted, that the contract agreement contained arbitration clause, and as such, the petitioners asked the respondent No. 2 to refer the matter to arbitrator if there is any dispute, but the respondent No. 2 lodged the complaint with the ulterior motive to pressurize the petitioners not to make claim for payment. Per contra, Mr. Gaur contended, that the petitioners provided less number of resources and the persons engaged also did not have requisite experience and they left the work incomplete and thereby cheated the respondent No. 2, taking advantage of his lack of knowledge in the information technology.

6. Having regard to the ground of challenge to the criminal proceeding, it would be apposite to go through the allegations made in the complaint. It has been alleged in the complaint that the complainant being a businessman, conceptualised an idea of developing a hybrid mobile apps/mobile responsive websites (portals/applications) at/from his Jorhat office. As the complainant did not have the requisite technical knowledge of developing such a computer software and mobile apps, he was in-search of technical experts capable of developing such computer applications and website for him. Accordingly, the complainant visited various places including Jaipur, where he met the accused No. 2. The accused No. 2 assured the complainant, that they would be able to complete the project within the given time limit. Accordingly, the complainant entered into an agreement with the accused No. 1, on 27-11-2017 at Jorhat for developing the website and hybrid mobile applications. As per contract, the petitioners agreed to provide minimum 4 plus years experienced resources (developers) for the work. It was agreed that the project will be completed within one month. Pursuant to such contract, the complainant paid Rs. 56,000/- as advance. Initially the accused promised to provide eleven numbers of resources (developers) within 7th of December, 2017, so that the project could be completed within the stipulated time. However, the accused sent only six developers. Later on the accused visited Jorhat on 26-12-2017 and requested for enhancing the number of resources to 14, instead of 11, which was also conceded by the complainant and payment was accordingly made. The complainant also took a house on rent and purchased various appliances like computer systems, furni