Mere breach of contract does not constitute cheating unless fraudulent intent is present at the time of transaction.

1. The perpetual question of law as to whether a particular commercial transaction constitutes a mere breach of contract without any criminal liability or a case of cheating is once again confronting this Court in this criminal revision petition.

2. The case of the respondent No. 1, who is the complainant, is that the petitioner Nos. 1 and 2, who are husband and wife and who claimed to be the Proprietors of Bharat Tirtha Darshan, in response to the advertisement appearing in the local daily, Dainik Sambad, in its issue, dated 25-8-2013, entered into an agreement with him for opening a parlour franchise for Vadilal Ice - cream at Udaipur. Pursuant to the agreement, the respondent No. 1 had deposited a non - refundable sum of Rs.4,75,000/- with the petitioners in consideration of the supply for the dresses of the company, three refrigerators, a cone machine, a mixture machine, air - conditioned machine and free decoration of the Ice - cream parlour to be made by the latter. It was also agreed upon that the petitioners' firm would advertise the shop and give training to their employees and provide cash counter, other articles like table, chair, etc. to the respondent No. 1. According to the respondent No. 1, the petitioners subsequently delivered one damaged second hand refrigerator, one damaged air - conditioned machine and nothing more. It is the further allegations of the respondent No. 1 that his repeated requests to the petitioners to provide those items and facilities in terms of the agreement did not evoke any positive, but a few months thereafter, they had altogether stopped supplying even the Ice - cream products from Vadilal Enterprise Limited, which is the only reputed Ice - cream company. Ultimately, in response to his letter, the petitioners replied that the company was no more with them and that he should purchase from "Quality Ice - cream". The respondent No. 1 is stated to have learnt subsequently from another businessman, namely, one Suman Ganguly, that the petitioners had no authority to sell the goods of Vadilal Company as they were not their authorized dealer. The respondent No. 1 further alleged that he had asked the petitioners to return the money which they had fraudulently and dishonestly taken from him, but they refused to do so.

3. It was under the aforesaid circumstances that the respondent No. 1 filed C.R. Case No. 238/2015 against the petitioners before the learned Judicial Magistrate First Class (Court No. 8), Agartala charging them for the offences punishable under S.420/406/34, IPC. The learned Magistrate thereafter issued processes against the petitioners, who on their appearance before him, were released on bail. Four witnesses were examined by the respondent No. 1 at the stage of evidence before charge to bolster his case; the petitioners reserved their cross - examinations. After recording of the evidence of the prosecution witnesses and after hearing both the parties wherein the petitioners firmly submitted that the allegations made by the respondent No. 1 against the petitioners did not constitute the offence of cheating punishable u/S. 420, IPC and prayed for their discharge from the case. The learned Magistrate, however, by the impugned order framed the charge against the petitioners u/S. 420/34, IPC. Aggrieved by this, this revision petition is now filed by the petitioners for quashing the criminal proceedings against them.

4. Both Mr. P. K. Biswas, the learned senior counsel for the petitioners, and Mr. R.C. Debnath, the learned Additional Public Prosecutor, were heard at length. None appeared for the respondent No. 1 despite proper service of notice upon him vide the Registry note, dated 14-6-2017.

5. On perusing the body of the