- (1.) None appears on behalf of the opposite parties despite service of notice. This application under Sections 482 of the Code of Criminal Procedure is pertaining to case No.404 of 2007 corresponding to T. R. Case No.147 of 2007 under Sections 420/120B/114/109 of the I.P.C. pending in the Court of the learned Judicial Magistrate, 5th Court, Sealdah, 24-Paraganas (South). The petitioners are M/s. Tata Tele Services Ltd. and Suman Kargupta, General Manager, Customer Care, Eastern India, Tata Indicom Division. They have taken out this application praying for quashing of the entire proceeding and challenged the legality, validity and propriety of the order dated 16.8.2007 passed by the learned Magistrate whereby cognizance of the offence was taken. The opposite party No.2 Manas Sen Chowdhury filed one petition of complaint in the Court of the learned Additional Chief Judicial Magistrate, Sealdah against the petitioners alleging therein that he was defrauded by the company who realized monthly bills of his mobile connection without providing him discount as per tariff plan and thereby made wrongful gain and caused wrongful loss to him. Tata Tele Services Ltd. was supposed to adjust Rs.461.34 with the bills already paid but failed to do so. So, the opposite No.2 Manas Sen Chowdhury lodged the complaint and prayed for referring the matter to the concerned police station under Section 156 (3) of the Code of Criminal Procedure.
(2.) The learned Magistrate, however, refused to exercise its power under Section 156 (3) of the Cr. P. C. and by an order dated 18.6.2007 taken cognizance of the matter on the basis of the petition of complaint under Section 190 of the Code of Criminal Procedure and transferred the same to the Court of the learned Judicial Magistrate, 5th Court for examination of the complainant under Section 200 of the Code of Criminal Procedure. The learned Judicial Magistrate, 5thCourt by an order dated 16.8.2007 had taken cognizance of offence under Section 420/120B/114/109 of the I.P.C. against the present petitioners and directed to issue process. While passing the order, the learned Court did not examine the complainant on S.A. but accepted the affidavit filed by him in support of the petition of complaint filed under Section 138 of the N. I. Act.
(3.) The accused persons have come up with this application praying for quashing of the proceedings against them and setting aside the order dated 16.8.2007 mainly on the ground; a) that no offence under Section 420/120B/114/109 of the I.P.C. is made out, prima facie, against the petitioners even if the allegations and aspersions made in the petition of complaint have been accepted on its face value; b) that the order dated 16.8.2007 is entirely misconceived and suffering from serious error and infirmity; It is settled principle of law, reference to which is not required to be given in detail, that in appropriate cases, High Court can exercise its extraordinary power under Section 482 of the Code of Criminal Procedure in order to quash a proceeding, continuance of which would be amounting to abuse of the process of the Court specially when no, prima facie, case is made out against any person made accused even if the aspersion and allegation in the petition of complaint are accepted uncontroverted on its face value. A bare perusal of the petition of complaint makes it abundantly clear that the petitioners M/s. Tata Tele Services Ltd. provided service to the opposite party No.2 and charged money for that. There might be that there was some irregularities in the bills but it appears clearly from the paragraphs 20 to 25 that M/s. Tata Tele Services Ltd. made adjustment of the bills on the basis of the complaint made by the opposite party no.2. It is the demand of the complainant that Rs.461.34 ought to have been adjusted also, which the petitioners failed to do. This inaction on the part of the petitioners, who made some adjustments of the bills on the prayer of the opposite party no.2, cannot be said to be fraudulent and cheating. In order to constitute of an offence of cheating, there must be an action amounting to deceiving or fraudulent or dishonest intention to deceive. In the instant case, no such element of the offence of cheating can be traced out in the averments made in the petition of complaint. Therefore, no case of cheating and abatement of cheating as well can be said to have been made out against the petitioners even the averments in the petition of complaint are accepted on their face value uncontroverted. This appears to be a proper case where this Court should exercise its power under Section 482 of the Cr. P. C. and quash such a proceeding continuance of which would be amounting to abuse of the process of the Court. On that count, the entire proceeding is liable to be quashed.;