IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE CRR 3190 of 2015 Binod Kumar Bawri & Ors.

Vs.

The State of West Bengal & Anr.

For the Petitioner : Mr. Moyukh Mukherjee Ms. Sarmistha Basak Mr. P.D.Mukherjee Ms. Ankita Das Ms. Avantika Kahar Mr. Ayush Shaw For the State : Mr. Rana Mukherjee, Ld. APP Heard on : 07.07.2025 Judgement on : 05.08.2025 Dr. Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the impugned proceeding being GR case No. 2097 of 2012, presently pending before Learned Metropolitan Magistrate, 8th court Calcutta, the instant application has been preferred by the petitioner.

2. It is alleged in the F.I.R. that the accused persons including the instant petitioner hatched up a conspiracy among themselves and induced the complainant to supply fly ash of 2650 MT @ Rs. 1320/- per MTV, amounting to Rs. 36,10,464/- in favour of M/s. Krishna Overseas for supplying the same to M/S Calcom Cement Ltd. It is further alleged that M/s. Krishna Overseas intrude the complainant to represent it as consignor before the railway authority on the plea that the same would help them to clear the goods immediately. After the said quantity of fly ash reached to its destination, the accused no. 10 namely Dimbeswar Deka cleared the same by giving a false affidavit and handed over the same to M/S Calcom Cement Ltd. It is further alleged that even after receipt of the fly ash, the accused persons denied to clear the dues of the complainant and as such there is an outstanding amount Rs. 34,60,464/-.

3. Being aggrieved by the instant proceeding Mr. Mukherjee learned Counsel appearing on behalf of the petitioner submits that in it’s usual course of business M/S Calcom Cement used to purchase fly ash from different concern for production of cement at its Assam Unit. Similarly, In the year 2011 in course of its business, said cement company entered into business transaction with M/S Krishna Overseas for purchasing 2582.60 MT fly ash which is used as raw material for production of cement. His specific case is that the above mentioned total transaction valued to an amount of Rs. 36,15,642/- and out of that amount said cement company made payment of Rs.28,47,475/- to M/S Krishna Overseas. His further contention is that M/S Calcom Cement Ltd. never made any direct business dealing with the complainant / opposite party herein, nor they had ever being under any obligation to make any direct payment to complainant/ opposite party herein. In fact M/S Calcom cement entered into business dealing with M/S Krishna Overseas and pursuant to such business dealing, it had placed purchase order, letter of intent and vendor registration form and M/s. Krishna Overseas accordingly supplied the demanded quantity of fly ash after complying with all necessary formalities to M/S Calcom Cement Ltd., and as such it had hardly any transaction and /or communication with the complainant/ opposite party herein.

4. Mr. Mukherjee further argued that the criminal courts are not supposed to act as money recovery agent. Petitioners were never aware nor was supposed to be aware of the mode and manner in which the business transaction had taken place in between M/S Krishna Overseas and the complainant company/opposite party. Therefore offence of cheating does not attract in the present context. Furthermore on a bare perusal of contents of the F.I.R., it is apparent that the petitioners herein were never entrusted with any property of the F.I.R. maker/ opposite party no. 2, which could have been misappropriated by the petitioners herein. In the absence of element of entrustment in favour of the petitioners and /or misappropriation thereof, no case of offence of criminal breach of trust can be said to have been made out.

5. He further submits that from a perusal of the aforesaid facts and circumstances of the case, it is evident that mens rea (guilty mind) from the very inception is completel