- (1.) The petitioner accused company has filed this application u/s.482 of the Cr.P.C. praying for quashing the criminal proceeding being CR Case No.5568/2005 now pending in the ld. M.M. 14th Court Calcutta u/s.420 IPC.
(2.) It is the case of the petitioner that the petitioner placed an order upon O.P. No.2 company for delivery of a Bombay Tender Roller within a specified dated 15th March, 2003 under certain terms and conditions. It is further case that as O.P. company delivered the same belatedly the petitioner company suffers some loss which was estimated as Rs.11 lakhs an odd. It is further case that as per talk of settlement between the parties it was agreed by both the parties that O.P. company will pay Rs.3 lakhs to the petitioner company to wipe out said loss within 15 days from the said meeting dated 22nd April, 2003. It is further case that without making said payment of Rs.3 laks towards compensation to the petitioner company, the O.P. company collected the entire price of said machine from the bank and lodged a false complaint u/s.420 Cr.P.C. alleging that on account of non -sending of Form -C by the petitioner company, the O.P. company suffered a loss of Rs.1,86,000/ - and odd and that the petitioner company was guilty of cheating for said non -supply of Form -C. Mr. Ranjan Roy appearing for the petitioner company submits that there was an agreement between the parties, there was some disputes and differences between the parties there was delayed supply of the machine, there was a settlement on that score, there was failure on the part of the O.P. company to make payment according to said settlement though they received, the purchase price of the machine through bank. According to him even if it is assumed that there was neglect on the part of the petitioner company to send Form -C to the O.P. complainant company in terms of the agreement but that cannot give rise to a case u/s.420 Cr.P.C. He submits that for establishing the offence of cheating the complainant is required to show that the accused has fraudulent or dishonest intention at the time of making promise. According to him failure to keep promise subsequently a culpable intention right at the beginning i.e. at the time when the promise was made cannot be presumed. According to him the basic ingredients of the offence of cheating are wanting in this case. In support of his contention he refers case laws in (All Cargo Movers Pvt. Vs. Dhanesh Badarmal Jain & Anr., 2008 AIR(SC) 247) and (Inder Mohan Goswami & Anr. Vs. STate of Uttaranchal & Ors., 2008 AIR(SC) 251).
(3.) Mr . Indranil Roy appearing for the O.P. complainant on the other hand submits that on account of alleged non -payment of compensation of Rs.3 lakhs being alleged loss suffered by the present petitioner accused company they moved Malda District Forum vide case no.60 of 2003 which ended in dismissal. He submits by referring case law reported in (N. Devindrappa Vs. State of Karnataka, 2007 5 SCC 228) that an act can result in both civil and criminal liability. He next submits that had the O.P. complainant knew that the petitioner accused would not forward C -Form to enjoy a tax benefit of Rs.1,86,000/ - and odd, the complainant company would have added said amount in the sale price. He next submits that the accused company dishonestly and fraudulently withheld said Form -C to cause said financial loss to the complainant company and as such, a criminal case u/s.420 IPC was rightly filed.;