- (1.) Invoking section 482 of the Code of Criminal Procedure the petitioners have brought this criminal revision before this Court for quashing of the First Information Report, relating to the Shakespeare Sarani Police Station Case No. 119, dated March 5, 2009 under sections 420,120B of the Indian Penal Code.
(2.) Mr. Tirthankar Ghosh, the learned Advocate, appearing on behalf of the petitioners raised following points in support of the prayer for quashing; (a) No case of cheating has been made out, as there is no allegation of initial deception, or willful misrepresentation and/or fraudulent intention in the FIR. (b) The complainant has simultaneously approached both the Civil and the Criminal Court over the self-same allegations. (c) The comparison of the plaint in the Civil Suit and the allegations made in the FIR would show that there has been suppression of material facts which touches the very root of the case. (d) Mere dishonour of cheque do not amount to an offence of cheating. (e) Mere non-payment also do not make out any case of cheating. (f) Nothing has been reflected in the complaint as to the participation of all the accused persons. (g) No act or overact has been attributed to them they are only named. It was further submitted by Mr. Ghosh that a contract was awarded to the company of the petitioners by Eastern Railway for "At KPA - Rehabilitation of leaky roof of residential building and service building" and in connection with the saicfjob the petitioners' company in turn placed an order to the complainant company for supply of fibre glass based bitumen felt, bitumen, Shalikote primer. According to Mr. Ghosh, not only there was a short supply but 20% of the goods so supplied to the railways have been rejected as the same was sub-standard and of inferior quality. He further submitted no quality guarantee certificate and the copy of the License issued by the Bureau of Indian Standards to the complainant company were provided to the petitioners company and as a result the same could not have been produced before the Railway Authorities, moreover the complainant company raised inflated bills. It was his further submissions that over the self-same dispute the opposite party has already filed a Title Suit and the same is pending. Mr. Ghosh in support of his contentions relied upon the following decisions: (i) Sharon Michel & Ors. vs. State of Tamil Nadu & Anr., reported in 2009(2) SCC (Cri) 103, (ii) Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr., reported in 2007(3) SCC (Cri) 370, (iii) V. Y. Jose & Anr. vs. State of Gujarat & Anr., reported in 2009(1) SCC (Cri) 996. Mr. Sudipto Moitra, the learned Counsel, appearing on behalf of the complainant/opposite party vehemently opposed the prayer for quashing and submitted that the allegations made in the First Information Report clearly discloses commission of the offences. He further submitted merely because a civil suit is pending over the self-same allegations that cannot be a. ground for quashing of the criminal prosecution when the offence has been made out. According to Mr. Moitra suppression, if any, being a question of facts cannot also be the ground for quashing. Lastly, Mr. Moitra submitted that the claim of the petitioners that there was a short supply and 20% of the goods have been returned by the Railway Authorities as the same was sub-standard is absolutely false and in this connection they have submitted necessary papers to the Investigating Agency. Thus, he prayed for dismissal of the instant criminal revision with exemplary costs. Mr. Sandipan Ganguly, the learned Counsel, appearing on behalf of the State produced the case diary and brought to the notice of this Court a document showing confirmation from the railways about the receipt of goods in question as per the ordered quantity as well as the fact the entire articles have passed the test of standard and have been utilized in the work. Mr. Ganguly further submitted that investigation of the case is at a very initial stage and certainly from the allegations disclosed in the FIR and from the materials so far collected by the Investigating Agency it cannot be said that no offence has been made out. Thus the question of quashing of the FIR does not at all arise.
(3.) Heard the learned Counsels appearing on behalf of the parties. Perused the materials on record more particularly the First Information Report and the evidentiary materials so far collected by the police during investigation.;