Breach of contract does not constitute cheating unless dishonest intention and deception existed from transaction's inception; civil disputes cannot be criminalized without initial fraud.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the order taking cognizance dated 25.11.2023 passed by the Judicial Magistrate 1st Class, Rajmahal, in connection with Complaint Case No. 499 of 2023, whereby and whereunder the learned Judicial Magistrate found sufficient ground of proceeding against the petitioner for having committed the offence punishable under Section 417 of the Indian Penal Code.

3. The brief facts of the case is that the allegation against the petitioner is that the petitioner did not supply the boundary wall construction materials such as cement, stone chips of the entire amount of Rs.6,50,000/- received by him and only supplied articles worth Rs.3,00,000/-. The complainant- O.P. No.2 filed a written report with the Radhanagar Police Station basing upon which, Radhanagar P.S. Case No. 229/2020 was registered. Thereafter, Police took up the investigation of the case and after completion of investigation police submitted the Final Form mentioning therein that the dispute between the parties is of civil dispute and did not send up the petitioner for trial. Upon which the petitioner filed a protest-cum-complaint petition and basing upon the protest- cum-complaint petition, statement of the complainant on solemn affirmation and statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Rajmahal found sufficient material to proceed against the petitioner for having committed the offence punishable under Section 417 of the Indian Penal Code against the petitioner.

4. It is submitted by the learned counsel for the petitioner relying upon the judgment of the Hon'ble Supreme Court of India in the case of Lalit Chaturvedi and Others vs. State of Uttar Pradesh and Another reported in 2024 SCC Online SC 171 wherein the Hon'ble Supreme Court of India has taken note of the fact and reiterated the settled principle of law in para 5 of the said judgment that there is a clear distinction between a civil wrong in the form of breach of contract, non- payment of money or disregard to and violation of the contractual terms; and a criminal offence under Section 420 and 406 of the IPC.

5. In that case the Hon'ble Supreme Court of India also relied upon its own judgment in the case of V.Y. Jose vs. State of Gujarat reported in (2009) 3 SCC 78 which explicitly states that a contractual dispute or breach of contract per se should not lead to initiation of a criminal proceeding. The ingredient of 'cheating', as defined under Section 415 of the IPC, is existence of a fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning of the formation of contract.

6. Learned counsel for the petitioner submits that charge has not yet been framed against the petitioner.

7. It is next submitted that as there is no allegation against the petitioner of having played deception since the very beginning or inception, hence, the offence punishable under Section 417 of the IPC is not made out, even if the entire allegations made against the petitioner are considered to be true in their entirety. Hence, it is submitted that prayer as prayed for by the petitioner in the Cr.M.P., be allowed.

8. The learned Addl. P.P. and the learned senior counsel for the O.P. No.2 on the other hand vehemently opposed the prayer and submit that materials in the record is sufficient enough to constitute the