A breach of contract alone does not constitute cheating; evidence of fraudulent intent is necessary, including manipulation of financed assets which may suggest dishonesty.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. At the very outset it would be pertinent to mention that for brevity of discussion both the revision applications arising out of self same cause of action have been taken up together for disposal via this common judgment.

2. Both the revision applications being CRR 4070 & 4071 of 2024 have been preferred at the behest of the petitioners with a prayer for quashment of the impugned criminal proceedings being complaint case no. 80903 of 2024 (in relation with CRR 4070 of 2024) and complaint case no. 79775 of 2024 (in relation with CRR 4071 of 2024) presently pending before the Court of Ld. 16^th Metropolitan Magistrate (presently 16^th Judicial Magistrate), Calcutta for the alleged offence under Section 420 of the Indian Penal Code (hereinafter IPC) corresponding to Section 318(4) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter BNS).

Background:-

3. The genesis of the impugned prosecution are the petitions of complaint filed at the behest of the opposite party no. 2 in terms of Section 200 of the Code of Criminal Procedure (hereinafter CrPC) before the Court of Ld. Chief Metropolitan Magistrate, Calcutta alleging inter alia that the complainant company under the name and style of True Blue Asset Services Private Limited was engaged in business of financing. The Petitioners /accused approached the complainant company for financial assistance with a representation that they are in urgent need of financial assistance and they have very good reputation and good will in the market. To add to that assurance of timely repayment of the loan amount in compliance with the terms and conditions of the argument without any default was also made by the petitioners. Thereafter, the opposite party no. 2/complainant company upon being satisfied with background and credentials of the petitioners sanctioned a loan through conditional sale agreement being Agreement No. TBASS00326 dated 12/20/2020 for the Asset XE210, Engine/Machine/Serial Number 807441900 for the asset. Accordingly, two loan contracts being (TBASS00321) and (TBASS00326) were executed, each for Rs. 38,79,824/- totaling to Rs. 77,59,648. But soon after availing the loan facilities, the petitioners started defaulting in repayment only after making payment of few months’ installments. Inspite of several follow ups and repeated reminders and several opportunities being given to the petitioners to repay outstanding amount, on each and every occasion the accused persons denied repayment on different pretexts and lastly refused to repay the overdue amount i.e. Rs. 28,20,000/- & Rs. 26,79,000/- respectively including penal interest and bouncing charges. Finally, a legal notice dated 21.03.2024 was sent to the petitioners demanding repayment of the outstanding amount within 7 days from the said receipt of notice. But inspite of service the petitioners did not give any response and being aggrieved finding no other alternative the opposite party no. 2 initiated the impugned criminal proceedings before the Court of Ld. Chief Metropolitan Magistrate, Calcutta.

Argument advanced:-

4. Mr. Krishnendu Bhattacharya, Ld. Counsel, appearing on behalf of the petitioner to begin with has argued that the order of taking cognizance evidently unveils no application of any judicious mind for its inherent susceptibility as Ld. Magistrate has failed to consider that the petition of complaint at best reveals mere breach of contract. The existence of part payment only gives rise to a civil dispute that at best warrants intervention of competent Civil Court for recovery of money and machinery. In this regard, Mr. Bhattacharya has further added that the petition of complaint manifestly demonstrates that the accused persons including the company are situated outside the territorial jurisdiction of Ld. Trial Court. Whereas Section 202 of the CrPC clearly mandates upon the Ld. Magistrate to conduct enquiry in such cases. But no enquiry in terms of Section 202 of CrPC was ever directed by th