IMPORTANT POINT
A mere breach of contract does not amount to cheating unless it is shown that the accused had fraudulent or dishonest intention at the time of the transaction, and a prima facie case must be established for proceeding with criminal charges.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Kaushik Sarkhel, learned counsel for the petitioner, Mr. Achinto Sen, learned counsel for the State and Mr. Sidhartha Roy, learned counsel for opposite party no.2.

2. This petition has been filed for quashing of the order dated 08.04.2015 passed by the learned S.D.J.M., Hazaribag, whereby, an application filed under Section 239 Cr.P.C. for discharge of the petitioner has been dismissed in connection with Giddi P.S. Case No.81/2011, corresponding to G.R. No.3426/2011 registered under Section 406/420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The prayer is also made for quashing of the order dated 14.10.2015 passed by the learned Sessions Judge, Hazaribag in Criminal Revision No.76/2015, whereby, the revision application preferred against the order dated 08.04.2015 has been dismissed, pending in the Court of the learned S.D.J.M., Hazaribag.

3. The FIR was registered on the written report of Sham Dutt Sharma, who is the Manager of new established company, namely, Bhaskar Steel Pvt. Ltd. of Maa Chhinnamastika Group of Company alleging therein that the petitioner-Debashish Ghoshal, Managing Director of Asansol Infotech and Industrial Consultancy Pvt. Ltd. whose registered office is at G.T. Road, Godavari Apartment, Gopalpur, Asansol came to the informant's office on 10.08.2011 and gave some materials, brochures and C.D. to the informant and said that he has brought some new technology from China and asked the informant to build a new factory, it would give lots of benefit. It was further alleged that the petitioner taking the informant into confidence took a cheque of Rs.51,00,000/- Lakh and remained absconded for three months. When the informant made enquiry then he came to know that there is no such technology from China and when the informant put the cheque for encashment then the cheque was bounced for insufficient fund and stop payment.

4. Mr. Kaushik Sarkhel, learned counsel for the petitioner submitted that the investigation was not made in accordance with law. He submitted that the Investigating Officer has submitted final form in absence of any cogent material against the petitioner and the petitioner has been put to trial. He further submitted that no case under Sections 406 and 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act is made out. He also submitted that the entire case of prosecution is devoid of criminal mens rea and the instant prosecution is merely a misuse of the process of law. By way of referring the contents of the FIR, he submitted that if any case is made out i.e. under Section 138 of the Negotiable Instruments Act and no case under the Indian Penal Code is made out. He further submitted that merely dishonour of the cheque in view of the stop payment endorsement made by the petitioner to the bank, if any is made out, however, wrongly the case has been registered under Sections 406 and 420 of the Indian Penal Code and charge-sheet has been submitted. He also submitted that since within mandatory provision, notice with regard to payment of cheque was not made and that is why, false FIR was registered. He further submitted that the cheque in question being chief material exhibit, was not produced by the informant in course of the investigation and the said cheque is not part of the documents submitted by the Investigating Officer under Section 173(3) Cr.P.C. along with final form. He submitted that the informant has concealed the fact that there is existence of an agreement between the Director of M/s Ma Chinnamastika Sponge Iron Private Limited, namely, Pradip Bhardwaj and the employer of the informant and the terms and conditions of the said agreement discuss entire gamut of business proposition and its transactions between the parties to the agreement, which also contained the arbitration clause. He further submitted that the said cheque was taken by the Director of M/s Ma Chinnamastika Sponge Iron Pri