SHIB SADHAN SADHU, J. - (1.) THIS petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioners praying for quashment of the proceedings and order dated 26.08.2013 passed in G.R.Case No.381 of 2013 under Section 406/34 of the Indian Penal Code pending before the Court of the Learned Additional Chief Judicial Magistrate, Bidhannagar, District: North 24 Parganas.
(2.) THE factual backdrop of the event giving rise to this petition is that the O.P.No.2 had placed orders for supplying 100 numbers of DELL Desktop Computers on 19.01.2013 on the quotation amounting to Rs.27,95,208/ - (Rupees Twenty Seven Lakh Ninety Five Thousand Two Hundred Eight only) with the said company as total costs for 100 Desktop for delivery to the O.P.No.2 on the terms and conditions that all payments to be made in favour of the petitioners, 10% advance along with P.O. and that delivery will be within one month from the date of release of P.O. and payment. In course of discussion with the petitioners it was settled that payment be made 10% in advance and balance 90% be made after delivery within 21 days in 3 cheques and on 19.01.2013 the O.P. No.2 submitted the work orders for a total price of Rs.27,95,208/ -. Since no objection was received from the petitioner/accused in respect of varied terms and conditions in quotation, the O.P.No.2 made contact with the petitioners over phone and requested them to collect the cheque of Rs.2,80,000/ - as advance. Accordingly the petitioner No.2 came to the office of the O.P.No.2 and he handed over the quotation along with the cheque to the petitioner No.2. The accused/petitioner agreed to make delivery within 10 days from that date and accordingly, the terms and conditions of the order were resettled and re -written by them. They made commitment to supply the materials as per quotation and work orders on or before 29.01.2013. On 28.01.2013 the O.P.No.2 contacted with the accused for immediate supply of the materials and reminded them that in case of failure he will not be able to supply the materials to Aliah University within 30.01.2013 and he will incur huge financial loss. But on 29.01.2013 the accused/petitioners changed their attitude and began to avoid the O.P. No.2 and they did not supply the materials within 29.01.2013 as committed earlier. As a result he failed to supply the materials to the Aliah University on 30.01.2013. On 05.02.2013 he got a letter from the said University Authority cancelling the order. Thereafter, on taking information from the bank he came to know that the cheque of Rs.2,80,000/ - issued to the accused/petitioners remained unpresented. So he issued instruction to the bank to stop payment by means of a letter dated 05.02.2013. On 06.02.2013 he received a letter from the accused through mail stating some new facts and grounds for withholding the contract and further declaring that the purchase order dated 19.01.2013 could not be validated from their end for the reasons that the cheque was faulty as it was not issued in favour of "Diamond Infotech Private Limited" and since the cheque which was issued against advance payment could not be realised the delivery order could not be executed. The accused persons had ill and dishonest intention since inception to withhold the purchase order without supplying the materials as ordered on 19.01.2013 and they have cheated him. The O.P.No.2 reposed trust upon accused persons but he was deceived. He then sent a legal notice to the accused persons asking them to return the cheque of Rs.2,80,000/ - but they did not do so. For such dishonest intention and criminal motive of the accused persons, he had incurred a huge loss. Thereafter, he filed a written complaint in the Court of Learned Additional Chief Judicial Magistrate at Bidhannagar which was sent for investigation under Section 156(3) Cr.P.C. Investigation was conducted and charge sheet was submitted under Section 406/34 IPC.
(3.) MR . Debasish Roy, Learned Counsel appearing on behalf of the petitioners, argued that the facts, stated in the written complaint, FIR and statements recorded under Section 161 Cr.P.C., even if accepted as it is, do not constitute offence under Section 406 of the IPC. He further contended that the terms and conditions of the quotation were that (i) 100% advance along with purchase orders; (ii) deliveries will be one month from the date of release of P.O. and payment and (iii) all payments to be made in favour of "Diamond Infotech Private Limited" payable at Kolkata. But the O.P. No.2 did not follow such terms and conditions and he forwarded a quotation stating varied terms and conditions and he sent a cheque of Rs. 2,80 -,000/ - being 10% payment in advance which again was faulty. That is why such cheque was not presented in the bank and he was duly intimated and the cheque was returned. He contended yet further that the alleged facts and circumstances and the allegation made in the complaint and the case diary statements make out no offence at all far to speak of establishing an offence under Section 406 IPC. Even the worst view of the matter is taken it might give rise to a case of breach of contract. There is nothing to show that there was at all any relation of trust or entrustment or criminal breach of trust. Therefore, according to him, the essential ingredients of the offence of criminal breach of trust as defined under Section 406 of the IPC are not made out and the institution of the criminal proceedings is an abuse of process of law and an attempt to use the police machinery to pressurize and harass the innocent petitioners by twisting arms. On the other hand, Learned Counsel appearing on behalf of the State, argued that from the contents of the written complaint, FIR and the case diary statement, a prima facie case of criminal breach of trust is made out. Therefore, no interference is warranted and the petitioners would be at liberty to raise defences available to them under the law in the Trial Court. Their defence cannot be considered at this stage.;