Breach of contract does not constitute criminal cheating unless fraudulent intent is established from the outset of the transaction.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard learned counsel for the petitioners and learned counsel for opposite party no. 2. Nobody has appeared on behalf of the State.

2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 06.08.2015 arising out of Complaint Case No. 616/2014, pending in the Court of the learned S.D.J.M., Koderma.

3. The complaint case was filed alleging therein the complainant is a small contractor and runs a firm in the name of Ma-Shakti Enterprises with a partner namely Vikas Burnwal. On 24.10.2013, the accused persons visited the complainant at Jhumri Tilaiya and talks about carrying out of outsourcing work through him at CCL, Bokaro. It was further alleged that the accused Pramod Kumar Singh runs a firm in the name of M/s Dhillon Transport Company and takes the contract works with the help of small contractors, executes the work, this is what they told to the complainant and his partner. It was also alleged that an agreement was executed on 25.10.2013 between the complainant, his partner and the accused persons, wherein, it was stated that they have secured a contract work of outsourcing of OBR of 9.78 Lac cum re-handling of OB 2.85 Lac tone in two years and for which the complainant shall work as sub-contractor and shall deploy heavy and light equipment as per requirement from their end. In the agreement it was stipulated that as per agreement between the accused persons and CCL, the complainant shall deploy all manpower and machines and the accused shall be entitled for 10% commission from the bills of CCL. It was alleged that with the intention to cheat, the accused had said that Rs.54.77 paise shall be charged for diesel, whereas, the rate of Rs.53.73 paise was finalized between CCL and the accused. As per the agreement, the complainant on 11.12.2013 had commenced the work and at the time of commencement of work had asked the accused about the work order given by CCL, but was told that the same has not been issued and the agreement executed between them shall be submitted before the CCL, but in conspiracy the same was not submitted to CCL at the time of allotment of work order. The complainant came to know about this fact later on and when he asked the accused on 19.03.2014, then they threatened not to work and took away all papers. It was also alleged that the complainant has invested around Rs.42 Lacs, whereas, as advance the accused had paid Rs.8,50,000/-only and also not paid for machines and men deployed and a dozer is still under their custody and thus the accused have cheated, defrauded and committed criminal breach of trust. On 25.06.2014, all the three accused persons came to Jhumri Telaiya and said that if he asked for money for the work done and for returning the dozer then he has to face dire consequences. The complainant and his partner on 17.06.2014 sent a legal notice for payment of Rs.33,50,000/-and for returning the dozer, but the accused have refused to give and return the same.

4. Mr. Jitendra Shankar Singh, learned counsel appearing for the petitioners submits that petitioner no. 1 is one of the Director of M/s Aditya Dhanraj Enterprises Pvt. Ltd., a private Ltd. Company, petitioner no. 2 is a businessman and petitioner no. 3 is one of the partner in M/s Dhillon Transport and Company, a registered partnership firm. He submits that for the purpose of participating in NIT offered by CCL, M/s Aditya Dhanraj Enterprises Pvt. Ltd., M/s Manikraj Pvt. Ltd. And M/s Dhillon Transport and Company had formed a joint venture in the name of M/s Dhillon Transport and Company. He further submits that the CCL had invited bid documents for the contract under the work outsourcing of OBR of 9.78 Lac cum Rehandling of OB 2.95 Lac cum and extraction of Coal 1.720 LTC in two years. He submits that after award of contract, an agreement on 25.10.2013 was executed between M/s Dhillon Transport and Company and M/s Shakti Enterprises whereunde