- (1.) BY this application dated 13. 07. 2007 under Section 482 of the Cr. P. C. the two petitioners who are accused in Complaint Case No. 6433 of 2007 under Section 420/406 of the IPC pending before the learned Chief metropolitan Magistrate, Calcutta pray for quashing of the proceedings on the ground that the petition of complaint does not disclose any prima facie criminal offence.
(2.) THE O. P. No. 2 had an agreement with the two petitioners for supply of sports shoes as consignment agent of the accused No. 1/petitioner no. 1 to the relevant parties as may be directed by the accused No. 1/ company. At the start of the business transaction the accused No. 1 demanded Rs. 5 lac towards security deposit and the complainant-O. P. No. 2 made over three cheques, being No. 196266 for Rs. 1,50,000/-, No. 196267 for Rs. 2 lac and No. 196265 for Rs. 1,50, 000/- all undated thus totaling a sum of Rs. 5 lac drawn on Canara Bank, Sikh Temple Road, guwahati and it was understanding between the parties that the cheques should not be presented by the accused No. 1/company to its banker and they would be returned to the complainant after completion of the business of the transaction. The O. P. No. 2-complainant further alleged that the said o. P. No. 1/company made certain expenses and incurred expenditure which were understood to be adjusted towards the amount as would be payable to the complainant arising out of the business transaction and such amount came to be in the sum of Rs. 39,750/ -. Towards the end of the year 2006 the dispute arose between the parties when the accused No. 1/company illegally demanded a lucrative amount from the complainant without sending any cogent authentic documents or statement of accounts through their letter dated 03-01-2007. The complainant immediately sent statement of accounts for the relevant period and the letter in reply dated 10-01-2007. In that reply it was stated that it was the accused No. 1/company who was to pay a huge amount of money to the complainant. Then there was no further communication between the parties. But all on a sudden the complainant became surprised to receive three demand notices in respect of the three cheques under Section 138 of the N. I. Act on the ground that the cheques were presented by the accused No. 1 and dishonoured by the bank. But according to the complainant the complainant had no liabilities to the accused No. 1/company and without any written permission from the complainant the cheques were presented and such presentation of cheques were absolutely illegal, mala fide because they issued the cheques to the accused No. 1/company towards security deposit and such presentation of cheques constitutes criminal breach of trust and cheating by the accused-petitioners and was intended to grab the entire amount of Rs. 5 lac. Reply was given through the Advocate of the complainant through two such notices. Request was made to return the cheques but in vain. The complainant would not have entered into any business dealing with the accused company if it was known to the complainant that he would be so cheated by the accused persons. Therefore, it is alleged that the accused persons have committed offences under Section 406/420 of the IPC.
(3.) IT is the lease of the accused-petitioners that after the execution of the consignment agreement ; several transactions took place between the parties relating to sale of sports wears and sports goods. As a result of the transaction a sum of Rs. 5,06,475. 50 was due and payable by the complainant to the accused company and since there was default committed by the complainant the three cheques amounting to Rs. 5 lac were presented but dishonoured and accordingly accused persons instituted a proceeding under Section 138/141/142 of the N. I. Act read with Section 420 of the ipc against the complainant. The learned Metropolitan Magistrate took cognizance of the offence and issued process against the complainant/ company. It is alleged that the complainant's complaint is but a counterblast to the case instituted by the accused under the N. I. Act. The dispute is purely civil in nature and the petition of complaint taken at its face value does not constitute any offence far less the offences of cheating and criminal breach of trust. If there had been any breach of agreement by any of the parties to the transaction then the remedy would lie with the Civil Court and the remedy intended in the cloak of a criminal offence is not maintainable. There has been suppression of material fact that the accused person had already instituted a criminal complaint under Section 138 of the N. I. Act and accordingly the prosecution is liable to be quashed.;