Point of Law: While exercising powers under Section 482 Cr.P.C., Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against accused for which the accused is required to be tried or not”.

JUDGMENT & ORDER :

Heard Mr. K. Bhattacharjee, the learned counsel assisted by Mr. R. B. Yadav, the learned counsel for the petitioner. Also heard Mr. T. Torum, learned counsel representing the respondent No.1 and Mr. J. Tsering, learned Public Prosecutor for the respondent No.2.

2. This is an application filed under Section 482 of Code of Criminal Procedure, 1974 praying for quashing the criminal proceeding in Complaint Case No.131/2018, which is pending before the Court of learned Judicial Magistrate 1st Class (In short ‘JMFC’), Yupia.

3. The brief fact of the case is that the complainant/respondent No.1, Shri Jotam Toko Takam in the Complaint Case No.131/2018, registered under Section 120(B)/420/34 of IPC, inter alia had stated that during the year 2008’ the accused persons (one is present petitioner) were executing project work at JNKV (Jawaharlal Navodaya Kendra Vidyalaya) compound and approached before the complainant for financial help in order to complete the ongoing construction work and he lend a sum of Rs.75,00,000/-(Rupees Seventy five lakhs) only by executing Deed of Settlement dated 02.04.2008 registered before the Court of the learned JMFC on 30.05.2008. The accused persons promised to return the loan amount after completion of the project work, however, even after getting the bill amount, they started avoiding the complainant and did not repay the loan amount. Thereafter, the complainant served a legal notice upon both the accused persons through Advocate for recovery of the loan amount, but even after service of notices, the accused persons avoided the complainant, by frequently changing their telephone numbers, which shows the intention of the accused persons was to deceive the complainant. Accordingly, the complainant lodged a complaint, which was registered before the Court of learned JMFC, Yupia and also the complaint was examined under Section 200 Cr.P.C. and took cognizance against the accused namely Shri. Madhab Shaha and Shri. Kanilal Mukherjee/present petitioner, under Sections 120(B)/420/34 of IPC and issued summons for their appearance.

4. It is submitted by the learned counsel for the petitioner, Mr. K. Bhattacharjee that the allegation made in the complaint petition if taken at their face value, do not constitute any criminal offence to take cognizance against the present petitioner. More so, the FIR and evidence collected in support of the same do not disclose the commission of any criminal offence and thus, it is a purely civil case for which the complainant had already issued pleaders notice. Despite of having various legal remedy providing efficacious redress for the grievance of the aggrieved party, the complainant filed this criminal proceeding with mala fide intention with ulterior motive to pressurize the accused persons to pay the money as demanded.

5. He also submitted that it is a case of breach of contract simpliciter, not attracting any criminal liability and there was no prima facie case for offences under Section 120(B)/420/34 of IPC. More so, the complaint does not make any averment so as to infer any fraudulent or dishonest inducement made by the petitioners pursuant to which the respondent lend money. No case for prosecution under Section 120(B)/420/34 of IPC was made out even prima facie under those Sections. He further submitted that to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the contract. A false promise and such a dishonest intention cannot be inferred from a mere fact that he subsequently could not fulfil the promise.

6. It is stated that during the pendency of this case the respondent No.1/complainant died and his legal heir has already been impleaded in place of him.

7. Mr. Bhattacharjee, the learned counsel for the petitioner has submitted that the question of criminal proceeding does not arise at all, if there is no any criminal offence, mere dispute of taking loan and non-refund cannot be constr