A mere breach of contract does not constitute cheating; intention to deceive must exist at the inception of the agreement.

1. Challenge in this criminal appeal is to the judgement and order of conviction passed by learned Judge, Special (CBI Court), Asansol, Burdwan in CBI Special Case No. 4 of 2011 thereby convicting the appellants under Section 420 and 120B of the Indian Penal Code.

2. Briefly stated, The Inspector of Police, SPE, CBI, Dhanbad set the criminal administration of justice into motion by recording an information he received through a reliable source that Sri S.N. Tiwari, Sri T.P. Banerjee and Sri A.M. Mandal while holding different posts in Chanch Victoria area of BCCL, Barakar during the year 1991-92, entered into a criminal conspiracy with M/s Omega Enterprise and in furtherance thereof falsely recommended for payment for complete work causing wrongful loss to the BCCL to the tune of Rs. 3,47,456.06/- corresponding to wrongful gain to themselves in the matter of execution of contract work relating to overhead line for power supply to DOCP sub-station from Victoria sub-station. Sri T.P. Banerjee and Sri S.N. Tiwari fraudulently and dishonestly allowed the payment to M/s Omega Enterprise though the said company failed to execute the entire work of fixing overhead line for a stretch of 4 kilometres approximately. The said company only completed overhead line for a length of 0.876 kilometres. Sri T.P. Banerjee and A.M. Mandal were supposed to do proper inspection of the work done and furnish specific report but they falsely certified the completion of work and satisfactory performance of M/s Omega Enterprise.

3. The information since disclosed offence cognizable in nature the FIR No. R.C. 4(A)/69(D) dated 22nd February, 1996 was registered which culminated into submission of charge sheet.

4. The accused persons being charged under Section 120B/420/468/471/477A of the Indian Penal Code, 1860 (I.P.C.) read with Section 13 (1)(d)/13(2) of the Prevention of Corruption Act, 1988 , pleaded to be innocent and claimed to be tried.

5. Learned Trial Court after considering the evidence adduced by the prosecution witnesses was pleased to record an order of conviction under Section 120B and 420 of the I.P.C. and sentenced the convicts to suffer imprisonment for one month and to pay fine of Rs. 5000/- with a default clause each for committing offence under Section 120B of the I.P.C. and imprisonment for one month and to pay fine of Rs. 5000/- with a default clause each for committing offence under Section 420 of the I.P.C. Learned Trial Court recorded an order of acquittal from the charges under Section 468/471/477A of the I.P.C. and charges under Section 13 (1)(d)/13(2) of the Prevention of Corruption Act.

6. Mr. Ayan Bhattacharyya, learned Counsel representing the appellants submits that the impugned judgement was pronounced in utter misreading of evidence. It is contended by Mr. Bhattacharyya that prosecution examined nine witnesses but none of them claims to have consulted the measurement book. The measurement book was even not produced before the Court. It is submitted that it would appear that the job was allotted in the year 1992 and the enquiry was commenced in 1994. The security money was refunded to the company, M/s Omega Enterprise as stated by P.W. 3 only after completion of guarantee period following the procedure prescribed under the rule and while doing so the bills were verified with the measurement book by the Overseer/ Engineer. But the Investigating Officer as P.W. 9 stated that he did not verify the measurement book and he did not i