Syamal Kanti Chakrabarti, J. - (1.) SOME common questions are involved in both these revisional applications, which are accordingly taken up for consideration together. The petitioners in both these revisional applications have prayed for quashing of the proceedings being Case No. C-14761 of 2009 along with order dated 5.6.2009 passed therein which is now pending before the 8th Court of Learned Metropolitan Magistrate, Kolkata. It is contended that at the instance of O.P. no. 2, the aforesaid complaint case was instituted on the allegation that the complainant is a Private Limited Company and O.P. no. 2 is a manufacturer of Solar Water Heater. Accused no. 1 is a Director of the accused company and the petitioner is purportedly the Chairman of the said company and the accused no. 3 is the Consultant of the accused company and all of them are looking after the day-today business of the accused company. The accused in the letter dated 20.5.2008 placed an order with the complainant company for supply and installation of British Consol Make 6500 Litres per day evacuated Tube Collector based Solar Water Heating System for Jacuzzi Sauna Treatment etc. for Health Spa. The officers of the O.P. no. 2 company stated to the accused persons that the said water heating system shall have to be manufactured and installed as per the specification and order placed by the accused persons and the total cost would be about Rs. 13,00,000/-. The O.P. no. 2 company accordingly asked for an advance of Rs. 3,61,616/- out of the total price of the same and accused assured that payment of the balance would be made by them immediately on receipt of supply of the materials as per the purchase order dated 20.5.2008. On the basis of such assurance of the accused persons, O.P. no. 2 company started manufacturing the said water heating system as per the Map and specification given by the accused persons in respect of the roof plan with dimension for installation of the Solar Panel System, which is to be installed at 16, Raja Santosh Road, Kolkata. As per such specification, the O.P. no. 2 manufactured the requisite materials and supplied various equipments valued at Rs. 11,41,500/-. The O.P. no. 2 company requested the accused persons to make balance payment in respect of the goods supplied to them to the tune of Rs. 7,79,884/- and also informed that the remaining goods as per order of the accused persons were ready for delivery but the accused persons did not pay the said sum of Rs. 7,79,884/- and ultimately refused to make such payment. Thus, it is alleged by the O.P. no. 2 that the accused persons made a criminal conspiracy and in furtherance of such conspiracy and criminal design by their false and fraudulent representations intentionally deceived the O.P. no. 2 and other persons of the company and dishonestly induced the O.P. no. 2 company to supply them goods and materials worth Rs. 11,41,500/- against initial payment of only Rs. 3,61,616/- and refused to make balance payment and thus, committed an offence punishable under Sections 120B/406/420 of the Indian Penal Code.
(2.) ON receipt of such complaint, the Learned Chief Metropolitan Magistrate, Kolkata, by his order dated 30.3.2009 took cognizance of the offence and transferred this case to the file of the Learned Metropolitan Magistrate, 8th Court, Kolkata for disposal. ON receipt of such record by transfer, Learned Court below examined the authorized representative of the O.P. no. 2 and directed Officer-in-Charge, Bowbazar Police Station to investigate into the allegations as per the provisions of Section 202 of Cr.P.C. In the meantime, the O.P. no. 2 has also filed an application under Sections 93/94 of the Cr.P.C. ON receipt of the police report, Learned Magistrate has been pleased to hold that a prima facie case under Sections 406/420/120B of the I.P.C. has been made out against the accused persons including the petitioners herein and directed to issue search warrant but refused the prayer made by O.P. no. 2 for issue of search warrant. Subsequently on 14.07.2009, the O.P. no. 2 again prayed for issue of search warrant against the accused persons on the ground that the accused persons are trying to remove articles, which they have illegally retained in their custody. Subsequently, the search warrant was executed and the goods brought by the O.P. no. 2 at the work site for execution of the work entrusted to it on 01.09.2009, t were found stacked beneath one of the sheds on the southern side of premises no. 16, Raja Santosh Road, Kolkata- 700 027. Learned Lawyer for the petitioner has contended that the primary ingredients of an offence under Section 406 of the Indian Penal Code are (a) entrustment of property by the aggrieved to the accused ; and (b) subsequent misappropriation of the said property by the accused. In the instant case, there is no such entrustment within the meaning of Section 405 of the I.P.C. It is admitted in the petition of complaint that there had been grant of a work order dated 20.5.2008 for supplying and installation of Water Heating System. Mere supply of components of the Water Heating System was not the scope of the work order, which relates to installation/commissioning of such Water Heating System. The raw materials/components of such Water Heating System had been brought by the O.P. no. 2 to the work site for the purpose of proceeding towards completion of the job granted under the work order issued in favour of M/s. Multirise Towers Pvt. Ltd. The same cannot constitute the act of entrustment. It would also appear that through a letter dated 18.3.2009, the said company had cancelled the work order granted in favour of the O.P. no. 2 and asked them to take back the materials, which had been brought by them at the work site. The instant criminal proceeding was initiated thereafter on 30.3.2009. From the subsequent seizure list, it also appears that the said components supplied had not been misappropriated by the petitioner or by any other accused persons, which were seized in execution of the search warrant from the place where it had been left by the O.P. no. 2 herein. Mere retention of property by itself does not constitute any offence of criminal breach of trust. Therefore, the charge under Section 406 of the I.P.C. is clearly misconceived and the proceeding is liable to be quashed. It is further submitted by Learned Lawyer for the petitioner that an offence under Section 420 of the Indian Penal Code contains the following ingredients a) false and fraudulent representations made by the accused to the aggrieved; b) consequent delivery of valuable property by the aggrieved to the accused; and c) subsequent misappropriation of the said valuable property by the accused.
(3.) THEREFORE, it is apparent that false and fraudulent representations made at the inception of the transaction is an essential ingredient of the offence. From the relevant work order, it will appear that the same is a contract with the O.P. no. 2 containing certain terms and conditions. Acceptance of such contract by O.P. no. 2 will be effective from their initial payment of Rs. 3,61,616/- being an advance paid for effecting such contract. It will also appear that the O.P. no. 2 has also not concluded the work entrusted to him by the company of the petitioner and thus, O.P. no. 2 also had no legal right to claim the value provided for execution of the contract/work order. From the work order, it will appear that there was no obligation on the part of the M/s. Multirise Towers Pvt. Ltd. to make payment for the supplied articles. THEREFORE, the basic requirement of offence under Section 420 of I.P.C. is absent in the FIR. The fact of advance payment in terms of the contract indicates that the party making such advance had no intention to cheat the O.P. no. 2 and there is no existence of false and fraudulent representations at the inception of such transaction. Mere breach of contract ipso facto cannot give rise to the offence of cheating and so, the charge under Section 420 of I.P.C. is also misconceived and such proceeding is liable to be quashed. It is further contended by Learned Lawyer for the petitioners that the primary ingredients of the offence under Section 406 of the I.P.C. are (a) entrustment of property by the aggrieved to the accused ; and (b) subsequent misappropriation of the said property by the accused. Whereas the essential ingredients of an offence under Section 420 of the I.P.C. are a) false and fraudulent representations made by the accused to the aggrieved; b) consequent delivery of valuable property by the aggrieved to the accused and c) subsequent misappropriation of the said valuable property by the accused. ;