Mere non-payment for goods in a civil transaction cannot constitute cheating or criminal breach of trust under IPC; intent must be proven.

JUDGMENT :

Ajay Kumar Gupta, J.

1. This instant Criminal Revisional application has been filed by the petitioners/accused persons under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.), seeking quashing of the proceeding arising out of Complaint Case No. C-4252 of 2016 under Sections 420 /406/120B of the Indian Penal Code, 1860 (in short IPC ) initiated by the Opposite Party No. 1 under Section 156 (3) of the Cr.P.C. before the Learned Chief Judicial Magistrate, Alipore on 23rd November, 2016, which was subsequently converted to Section 200 of the Cr.P.C., now pending before the Court of the Learned 5th Judicial Magistrate, Alipore, South 24 Parganas.

FACTS OF THE CASE:

2. The aforesaid proceeding was initiated on the basis of a petition of complaint filed by the opposite party no. 1 alleging, inter alia, that the petitioners, being the Directors of M/s Ankit Metal & Power Ltd., introduced their company to opposite party no. 1’s company, M/s. Jagwani Projects (P) Ltd. for purchasing and receiving regular supply of Iron Ores Fines with an assurance of payments in accordance with the supplies.

3. Based on such representation, the opposite party no. 1’s company effected the supply of Iron Ores Fines from time to time, amounting to a total sum of Rs. 34,26,406/-. It was alleged that despite lapse of a reasonable period of time, the petitioners deliberately neglected to make payments of the aforesaid dues, thereby causing financial loss to the complainant. Repeated requests were made, both written and verbal, including an advocate’s notice demanding payment, but it was all in vain.

4. It was further alleged that on 25.10.2016, when representatives of the opposite party no. 1’s company visited the office of the accused persons demanding payment, the accused persons not only refused to clear the dues, but also abused and humiliated them. Such conduct of the accused revealed a clear modus operandi showing that the petitioners had, from the inception, dishonestly induced the complainant to supply goods without any intention to make payment, thereby committing offences under sections 420/406/120B of the IPC .

5. Upon hearing the complainant and on perusal of the petition filed under Section 156 (3) of the Cr.P.C., the learned Court below took cognizance under Section 190 (1) of the Cr.P.C. after converting it to a complaint under Section 200 of the Cr.P.C. and transferred the case to the Learned 5th Judicial Magistrate for its disposal.

6. The learned Trial Court, upon examining the witnesses on oath, found sufficient materials against the accused persons suggesting commission of offence punishable under Sections 420 /406 of the IPC . The petitioners contend that even considering the petition of the complainant and the statement of the witnesses, the learned Court took cognizance under Section 202 of the CrPC on solemn affirmation as sacrosanct, no case under Sections 406 /420 of the and inducement from the very inception can be said to have been made out against the petitioners. Hence, this Criminal Revisional application.

ARGUMENTS ON BEHALF OF THE PETITIONERS:

7. The petitioners contended that they are innocent and the complaint under Section 156 (3) of Cr.P.C. is concocted and fabricated. The proceeding has been initiated on suppression of material facts and documents before the Learned Magistrate in the petition, and the same is wanting in bona fides and is frivolous, vexatious or oppr