Non-performance of contractual obligations does not constitute criminal cheating without evidence of fraudulent intent; disputes of civil nature should be resolved through civil remedies.

JUDGMENT :

Chittaranjan Dash, J.

1. Heard learned counsels for both the Parties.

2. By means of this application the Petitioner seeks to quash the order dated 09.03.2015 passed by the learned S.D.J.M., Bhubaneswar in 1CC No.3797 of 2014.

3. The background facts of the case are that both the Petitioner and the Opposite Party No.2 engaged in a business tie up pursuant to a written agreement with several terms and conditions binding upon both the Parties. It is alleged that the Petitioner, being the Managing Director of M/s. Orex Minerals Ltd. entered into an agreement with M/s. Minex India, of which the Opp. Party is a Managing Partner, for supply of 7,800 Metric ton of iron ore fines for export purpose on 05.12.2011. In order to secure the goods, the Petitioner had given two security cheques of Rs.1,21,68,000/- and Rs.82,37,450/-. The Petitioner supplied the aforesaid material in two consignments. First consignment was for 4,096.43 Metric ton, of which payment was received for 2,669.67 Metric ton leaving a balance of 1,426.76 Metric ton. Another lot of 2879.97 Metric ton was supplied to the Opp. Party from K.S. Trading on the direction of the Petitioner for which payment was received by K.S.Trading directly from Opp. Party. The Opp. Party received 6976.40 Metric ton of iron ore fines till 14.03.2012. Out of the total quantity supplied, the Petitioner was to get Rs.39,36,866/- from the Opp. Party, which the Opp. Party did not settle till date. This material was subsequently sold by the Opp. Party to M/S Metal Impex/ Orecast, whose office is at - N-5 /395, IRC Village, Nayapalli, Bhubaneshwar Odisha. Opp. Party received the entire sale proceeds from said purchaser but avoided and did to pay the balance amount of Rs 39,36,866.00/- to the petitioner. Despite regular follow-up with Opp. Party, he did not respond nor acknowledged any communication for which Petitioner was forced to file a criminal case before the Bhawanipur Police station, Haldia, West Bengal vide P.S. Case No. 148/12 dated 14/07/12 under Section 420 IPC corresponding to G.R No 840/2012 is pending in the court of Additional Chief Judicial Magistrate, Haldia. The Opp. Party appeared and got released on bail. It is further case of the Petitioner that the Petitioner filed a civil suit before the High Court of Calcutta registered as G.A. 3729 of 2014. While the matter stood thus, the Opposite Party No.2 filed a complaint before the learned S.D.J.M., Bhubaneswar alleging against the Petitioner to have committed fraud and cheating. The learned Magistrate having proceeded in compliance with the provisions under Section 200 and 202 Cr.P.C., took cognizance of offence under Section 420 /465 of the IPC and issued process against the Petitioner directing his appearance in the Court impugned herein.

4. Mr. Santanu Kumar Sarangi, learned Senior Advocate appearing for the Petitioner submitted that the matter in dispute, the cause of action whereof arises entirely within the jurisdiction of the state of West Bengal and further the Petitioner is bound by the terms of the contract entered between them under Annexure-4, wherein Article 14 of the agreement stipulates that in the event of any dispute of difference arises between the Parties to the agreement relating to or arising out of the agreement including the implementation, execution, interpretation, rectification, validity, enforceability, termination or recession thereof including the rights, obligations or liabilities of the Parties thereto shall be adjudicated and determined by arbitration and the very fact that the Petitioner having supplied the material in terms of the agreement, the non-performance of the part of