Harsh Vardhan Tiwari vs Unknown
2023 Latest Caselaw 560 Cal

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15   18.01.2023

CRR 4416 OF 2007 RP Ct.No. 236 With CRAN 1 of 2021 No. CAN 5519 of 2019)

In the matter of : Harsh Vardhan Tiwari

Mr. Souvik Mitter Mr. Avishek Sinha Ms. Jonaki Saha

Mr. Narayan Prasad Agarwal Mr. Pratick Bose ... for State

This is an application under Section 482 of the

Criminal Procedure Code, 1973 for quashment of

proceeding, being C-3642 of 2005, pending before the

learned 8th Court of Metropolitan Megistrate under Sections

406/409/420/120B of the Indian Penal Code.

The fact of the case in short is that the petitioner is the

representative of M/s. Khadi Gramya Silpo Udyog engaged

in process of selling readymade garments. The said

concern had a long-standing business relationship with

M/s. Abhilasha, a proprietorship concern owned by Shri

Suresh Dhanuka. In course of such business the opposite

party no.2, being the proprietor of M/s. Avilasha, served a

notice through his lawyer upon the petitioner claimaing a

sum of Rs.2,47,580.70 paisa. The petitioner responded to

such claim by sending a reply on 17 th March, 2005 denying

all material allegations made by the opposite party no.2 but

the opposite party no.2 without considering the content of

the reply moved the jurisdictional Court with an application

under Section 156(3) of Criminal Procedure Code, 1973

registered as C/3642/2005 before the learned Chief

Metropolitan Magistrate, Calcutta. The learned trial Court

after examining the complaint under Section 200 of the

Criminal Procedure Code, 1973 was pleased to issue

process upon the petitioner and in terms thereof he

surrendered to the jurisdiction of the learned trial Court.

Initially the petitioner's complaint was forwarded to the

jurisdictional police station under Section 156(3) of

Criminal Procedure Code, 1973 and police registered a

case, being Shakespeare Sarani Police Station Case No.153

dated 13th May, 2005 but police after investigation

submitted a final report. Thereafter, the opposite party

no.2 filed a petition of complaint, which was examined

under Section 200 of Criminal Procedure Code, 1973 by the

learned jurisdictional Court and process was issued.

Challenging the said order the accused person has

preferred this application under consideration.

Mr. Souvik Mitter, learned counsel for the petitioner

submits that the petition of complaint would unerringly

indicate the fact that the parties to the proceeding were

engaged in business and there was no intention on the part

of the petitioner to dupe the complainant. Payment was

made by the petitioner from time to time to liquidate the

outstanding balance. By filing supplementary affidavit the

petitioner produced certain receipts acknowledging such

payment by the opposite party no.2 as the proprietor of

M/s. Abhilasha. Upon perusal of those documents I find

that on 22nd October, 2003 and 12th December, 2003 the

petitioner paid a sum of Rs.58,508/- and Rs.58,505/-

respectively and a sum of Rs.18,255/- was lying due as on

10th January, 2004. According to Mr. Mitter these

documents suggest that in course of business the petitioner

company received merchandise from the opposite party

no.2 and made payment. If there is any breach of contract,

it should be considered as a civil dispute and should not be

imbibed with colour of criminality. It is further submitted

by Mr. Mitter that payment made by the petitioner, and

duly acknowledged by the opposite party no.2 is sufficient

to indicate that the petitioner never had the intention since

inception of transaction to cheat the opposite party.

Therefore, non-payment or failure of payment on the part of

the petitioner to the opposite party cannot be considered to

be an offence within the meaning of Section 420 of Indian

Penal Code, which the learned trial Court failed to

appreciate.

Mr. Agarwal, learned counsel representing the State

also submits that the transactions between the parties are

sufficient to hold that the petitioner did not have the mens

rea to cheat the opposite party no.2. It is pertinent to place

on record that the opposite party no.2 despite receipt of

notice preferred to remain away from the proceeding.

Affidavit-of-service submitted by the petitioner is taken

on record.

By several judicial pronouncements it has become

settled principle of law that breach of contract would

amount to cheating only if the intention of cheating was

existing since at the very inception of prosecution. In the

case at hand the facts do not indicate such mens rea on

the part of the petitioner. In this regard I rely upon the

judgment of the Hon'ble Supreme Court pronounced in the

case of Medme LLC & Ors. vs. Ihorse BPO Solution

Private Limited reported in 2018(13) SCC 374 and Uma

Shankar Gopalika vs. State of Bihar & Ors. reported in

2005(10) SCC 336. This in my humble opinion is nothing

but a civil dispute which the learned trial Court failed to

appreciate and took cognizance of the offence, which

resulted into miscarriage of justice. This is a fit case to

invoke the jurisdiction under Section 482 of Criminal

Procedure Code, 1973 to quash the proceeding, being C-

3642 of 2005 pending before the learned Metropolitan

Magistrate, 8th Court, Calcutta which I accordingly do.

CRR 4416 of 2007 along with CRAN 1 of 2021 is

disposed of.

Let a copy of the order be forwarded to the learned

Chief Metropolitan Magistrate, Calcutta for information and

necessary action.

Urgent Photostat copy of this order, if applied for, be

delivered to the learned advocates for the parties, upon

compliance of all formalities.

(Siddhartha Roy Chowdhury J.)