No evidence of initial deception in a contract dispute constitutes grounds for quashing proceedings under cheating charges.

Mr. Sagnik Sankar Sikdar …..For the State Affidavit of service filed in Court today be taken on record.

Learned counsel appearing on behalf of the petitioners as well as for the State are present.

Learned counsel appearing on behalf of the petitioners has submitted that First Information Report lodged in this case clearly discloses that as per the agreement, payment was made by the opposite party no.2 and the ordered articles were sent to opposite party no.2. The only allegation in the First Information Report is that after fitting of the ordered articles, the opposite party no.2 found that the items delivered were not of that quality of samples, which were shown at the time of contract.

Learned counsel appearing on behalf of the petitioners has vehemently contended that this is not an offence within the meaning of Section 420 in absence of any allegation of initial deception.

In support of his contention, learned counsel appearing on behalf of the petitioners has relied on a case of Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. reported in 2009 SCC (14) 696, wherein the Hon’ble Apex Court handed down the principle particularly in paragraph 10, which reads as follows:-

“10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. (2003) 3 SCC 11 )”

In opposition to that learned counsel appearing on behalf of the State has submitted that during investigation, sufficient evidence has been collected in support of initial deception at the time of contract by and between the parties and has further submitted that such fact can be ascertained only in course of trial and not at the stage of exercising power under Section 528 of the B.N.S.S. It has been further submitted on behalf of the State that the power under Section 528 of the B.N.S.S. is to be used with great caution and circumspection.

ANALYSIS Section 316 of the B.N.S.S. deals with the offence of cheating and dishonestly inducing delivery of the property. This offence is committed when a person dishonestly induces another person to deliver any property to any person, or to make, alter or destroy the whole or any part of the valuable security or anything, which is signed or sealed and which is capable of being converted into valuable security.

Here in this case, there was a contract by and between the parties and in compliance with the stipulations, opposite party no.2 paid the amount for articles to the petitioner, who also, in turn, supplied all the articles as per the contract and also fitted all those articles.

Therefore, no initial deception is found to have been established even at this prima facie stage.

In this case, the complaint was lodged on the allegation that the articles supplied were not of the standard quality, as per the sample shown at the time of making contract.

The allegation made in the First Information Report, in my humble opinion, does not attract any offence under Section 318(4) of the B.N.S.S.

With regard to the offence under Section 506 , I do not find any such allegation in the written complaint also.

In such circumstances, allowing the proceeding to continue would be a gross abuse of process of the Court.

Hence, in my opinion, the impugned proceeding is liable to be quashed.

As a sequel, the proceeding in connection with G.R. Case No.6602 of 2023 arising out of New Jalpaiguri Police Station Case No.1162 of 2023 dated 29th December, 2023 under Sections 420 / 506/ 34 of t