The absence of fraudulent or dishonest intention at the time of making a promise or representation is crucial in determining the offence of cheating under the Indian Penal Code.

JUDGMENT :

Heard Mr. Nishant Kumar Roy, learned counsel for the petitioners, Mr. Ravi Prakash, learned counsel for the State and Mr. Sanjay Kumar Chamaria, learned counsel for opposite party no.2.

2. This petition has been filed for quashing the entire criminal proceedings including the order taking cognizance dated 15.06.2017 passed in connection with C.P. Case No.1102 of 2017, pending in the court of the learned Judicial Magistrate, 1st Class, Dhanbad.

3. The complaint case was filed alleging therein that the complainant is the proprietor of a company M/s. Prem Enterprises. The accused No. 1 and 3 induced the complainant to invest amount to be a 'Consignee Sales Agent' (CSA) for entire Jharkhand State of his company for their products like Namkeen, Potato Chips and other food products and under the name and style as 'Kalaji' and with respect to the same an agreement called Consignee Seller Agreement was entered into between the parties which was duly notarized on 17.03.2006. It was further alleged that the accused persons took Rs. 24,00,000/ from the complainant during April, 2016 to August, 2016. The accused persons supplied the goods/materials for Rs. 22,44,354.33 only against the said payments in part wise on different dates. The remaining amount of Rs. 1,55,745.67 is illegally held by the accused persons. As per the said agreement, the defective and unusable goods returned to the accused parsons and the complainant claimed Rs. 12,24,101/- towards damage claim. As per the agreement, the remuneration and benefits was to be paid by the accused persons to the complainant under different heads. The accused persons are liable to pay Rs. 423,005.45. The claim as above in total Rs. 1,55,745.67+12,24,101+ 4,23,005.45 = Rs. 18,02,852.12 payable by the accused persons to the complainant. It was also stated that the accused persons did not pay the amount despite repeated letters dated 26.09.2016 and 06.10.2016 nor replied to the legal notice dated 18.02.2017. It was further alleged that the accused person in violation of the subject agreement has appointed another CSA and has closed the business with the complainant. The acts of the accused persons come within the purview of cheating and criminal breach of trust and fraud. The accused persons with dishonest intention and thereby induced cheated the complainant by executing agreement under wrong intention and violated the terms and conditions thereof.

4. Mr. Nishant Kumar Roy, learned counsel for the petitioners submits that the case is arising out of an agreement and the petitioners and opposite party no.2 by way of the said agreement, have entered into business agreement. He draws attention of the Court to paragraph 6 of the complaint petition and submits that it has been alleged in that paragraph that the petitioners have supplied the goods for Rs.22,44,254.33/- paise, however remaining amount of Rs.1,55,745.67/- paise was illegally held by the accused persons. He further submits that there was no intention of cheating from very beginning and in view of Section 415 of the Indian Penal Code, intention from very beginning is one of the ingredients for making out a case. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in Dalip Kaur and others v. Jagnar Singh and another; [(2009) 14 SCC 696].

5. Paragraphs 8 and 10 of the said judgment are quoted herein below:

“8. Sections 405 and 415 of the Penal Code defining “criminal breach of trust” and “cheating” respectively read as under:

“405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person