A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction.

JUDGMENT :

By order dated 03.04.2023, notices were directed to be issued upon the respondent no.2 and the matter was directed to be posted on 15.05.2023. In order dated 28.06.2023, it has been recorded that the notice upon the respondent no.2 has been received by his son and in view of that, again notices were directed to be issued. Again, the notice has been received by the son of the respondent no.2 and by order dated 22.08.2023, the notice was directed to be validly served and the matter was further adjourned with a view to provide one more opportunity to the respondent no.2, and in spite of that, respondent no.2 has not appeared.

2. It appears that the respondent no.2 has lost interest in the matter and in view of that, the matter is being heard in absence of the respondent no.2.

3. Heard Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioners and Mr. Deepankar Roy, the learned counsel appearing on behalf of the respondent State.

4. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 23.03.2010 in connection with Complaint Case No. 485 of 2009 whereby the learned court has been pleased to take cognizance under section 418 read with section 120(B) I.P.C, pending in the court of learned Chief Judicial Magistrate, Bokaro.

5. The complaint case was filed alleging therein that the respondent no.2 is the Managing Partner of M/s Cecon Associates (hereinafter referred to as "CCA") had filed the complaint case being C.P. No. 485 of 2009 in the Court of Chief Judicial Magistrate, Bokaro, against the petitioners alleging therein that the petitioner no.1 on 23.01.2006 handed over the letter of the agreement / work order in the office of respondent no.2 at Bokaro on certain terms and conditions which contains description for the work to be carried out by the respondent no.2. It is further alleged that the respondent no.2 on the basis of the agreement brought dumpers, poclain etc. and started excavation and transportation of the soil, moorum from the borrowed area of petitioners as directed by the Project Manager of HCC Ltd. The agreement cum work order specifically mentions HCC Ltd. borrowed area as directed by the Project Manager.

It is further alleged that all the equipments, vehicles and manpower for constructions of sub-grade with approved materials from HCC borrow area upto 5 KM. It is further alleged that the respondent no.2 on the basis of the said agreement dated 23.01.2006 signed and handed over in the head office of the respondent no.2 at Bokaro and started work in the State of Rajasthan by deputing tripper/ dumper/ JCB/ Poclain and man power and started work on the place borrowed by HCC as per agreement as well as directed by the Project Manager of HCC.

It is further alleged that till 01.04.2006 the work was in progress but all of a sudden on 01.04.2006 at about 04:30 PM, Tahsildar and Police officer of Begun Police came and seized six dumpers and Poclain machines and instituted a case being Begun P.S. Case No. 89 of 2006 dated 01.04.2006 under Sections 447 and 379 of Indian Penal Code. The Police registered an First Information Report alleging that the work was done for HCC. The respondent no.2 including his labourers / staffs appeared before the Learned Court and was released on bail.

It is further alleged that respondent no.2 suffered huge loss on the act done by the petitioners and the petitioners induced the respondent no.2 to deploy the workers by providing dumpers / poclain and on the direction and assurance as per agreement dated 23.01.2006 the respondent no.2 deputed the works by digging the land and cutting the earth and sending the same at the specific place according to the instruction of petitioners.

It is further alleged that when the Begun police came and registered case at Begun P.S. against the respondent no.2, then he came to know that the petitioners have cheated the respondent no.2 by showing a false place without borrowing