Partha Sakha Datta, J. - (1.) By this application the eight petitioners who are the accused persons in connection with Burrabazar P.S. Case No. 15 dated 17.1.2009 under sections 420/406/120B of the IPC corresponding to G.R.Case No. 283 of 2009 now pending before the learned Additional Chief Metropolitan Magistrate, Calcutta pray for quashing of the proceeding on certain grounds which shall appear from the body of the judgment. The OP No. 2, de facto complainant filed a petition before the learned ACJM, Calcutta under sections 156(3) of the Cr PC against the five persons alleging the following fact: The O.P. No. 2 is a company dealing in the business of iron ore. Accused No. 1 M/s Steamcor India Limited who is the petitioner No. 1 herein is also a company dealing in the same business of iron ore, while accused No. 2-5 are said to be the directors / responsible officers who at the relevant time would look after the business of the said company and are jointly and/or severally in-charge of and responsible to the said company for its day-to-day business. Accused Nos. 2-3 who are the petitioners Nos. 2-5 respectively herein represented themselves to the complainant company as responsible officers of the company and canvassed a colour and glossy prospect of the said company. They represented to the complainant company the magnitude of their business and of their sincerity, honesty and strictness and requested to the complainant company for purchase of iron ore at a very lucrative price. The complaint company on such representations advanced by the accused persons became deeply impressed and agreed to keep their request and after due negotiations entered into two contracts on 8th January, 2008 and 21st . February, 2008 for purchase from them iron ore of huge quantity. The contract dated 8th January, 2008 was for the purchase of 10,000 metric tonnes of iron ore which was later enhanced to 20,000/- metric tonnes at Rs. 1500 per metric ton+ ex-mines+ royalty and taxes and Rs.1300/- per ton towards loading charges. The grades relating to this contract were required to be delivered within 30 days from the date of delivery of the order and the enure payment towards the said grades was made of by the complainant company in advance from the complainant's office at Burrabazar. Under the second contract dated 21st February, 2008 the complainant's company gave order for sale and supply of 40,000 metric tonnes of iron ore at the same price and the goods were to be delivered latest by April 2008 and the entire amount was paid in advance from its office at Burrabazar. Time being the essence of the contract. the accused persons were under the liability to deliver the entire materials of the first sale on or before 21.2.2008 at the latest and the materials under the second contract by 30th April, 2008 to the complainant's company. Confirmation and undertaking to such effect were given by the accused persons in writing besides over telephone to the complainant's company which had no reason to disbelieve such assurances and undertakings and thus the complainant was induced to rely upon and act on such representation which according to the complainant on evaluation of events clearly appeared to have been made with fraudulent and dishonest intention right from the very inception. The complainant's company accordingly-made almost 100 per cent payment in advance of Rs.9 crores by cheques drawn on Oriental Bank of Commerce Overseas Branch which were duly honoured by the accused persons. On 21.1.2008, 3.3.2008 ands 7.3.2008 a sum of Rs.3 crores each was tendered to the accused persons through three cheques which were all encashed by the accused persons but on various pretexts and excuses the accused persons indulged in the dishonoured tricks and started taking and consuming time and delayed or evaded in delivery of the goods to the complainant company. In spite of the complainant's repeated requests and reminders the accused persons did neither issue any delivery order nor they delivered the goods to the complainant's company. Thereafter due to continuous representation and demands and on the deep pressure the accused persons , more specifically the accused Nos. 4-5 who were the O.P. Nos. 3-4 herein agreed to sit across the table, and in a meeting held on 10th May, 2008 at the complainant's Calcutta office they undertook to deliver the goods but could not indicate any possible date of delivery. However, the recording of the discussion was confirmed in writing by its electronic mail dated 10th May, 2008. This 'undertaking' is a contemporaneous document which is an account of false representation of fact and by which the complainant company was induced by the accused persons to deliver the money. Still then no delivery of the goods was made . The complainant company on 9th June, 2008 asked the accused persons by electronic mail to delivery the either 60,000 metric tonnes of iron ore latest by 15'h July, 2008 or in default to refund the entire money held by them in trust towards such advance. On the one hand the accused persons regreted delay and on the other hand they started selling assets of the accused company in order that the complainant might not be able to recover anything from them with due regard to the due process of law. Then in spite of repeated references and reminders the accused persons continued with their dishonest tricks of pleading sorrowness but finally did not make any delivery of the materials/goods to the complainant's company till the date of lodgment of the complaint. They did not refund the amount of Rs. 9 crores which was paid in advance towards the price of the goods. The accused persons allegedly had since the very inception of transactions hatched up a deep rooted criminal conspiracy amongst them. Confidence and faith of the complainant-company got eroded. They accused-company made false and vague representations, induced the complainant's company to part with and pay to them the huge sum amount of money which they held in trust for the complainant's company and ultimately cheated the complainant and also committed criminal breach of trust. The complainant company has further instituted the suit being C.S.No. 262 of 2008 in the Original jurisdiction of the High Court of Calcutta claiming a decree for refund of Rs. 9 crores and consequential reliefs. The complainant company lodged a written complaint with the O.C., Burabazar P.S. on 10th January, 2009 on the aforesaid facts and requested to register the complaint as FIR. But the police station having not been done so, the complainant company moved the learned Magistrate with the instant application under section 156(3) Cr PC and the learned Magistrate directed the police station to register a case. The conspiracy hatched up by the accused persons came to be manifested through their overt act of cheating the complainant's company at its office falling under the police station of Burrabazar. Allegedly till date no steps have been taken by the accused company to make payment of Rs. 9 crores. Hence the case.
(2.) The police registered Burrabazar P.S.Case No. 15 dated 17.1.2009 under sections 420/406/120B of the IPC.
(3.) It has been contended in the revisional application that the petitioner- accused No. 1 company is a subsidiary of one of the world's largest Steel Trader, namely, Stemcor Holdings Limited and has substantial investment in India having annual turnover of around 2.95 billions pounds and its business covers to 56 countries in the world. The two contracts dated 8th January, 2008 and 21st February, 2008 entered into by and between the " complainant company and the accused company were 5th and 6th contracts in the series of contracts and the complainant company, namely. SESA has not completed lifting of the materials under the previous contracts; as such no delivery orders could be issued under the new contracts. Padma Logistics was not responsible for delay in delivery of the materials under the contracts in question. On 23rd December, 2008 SESA filed a civil suit being C.S. No. 262 of2008 with an application for attachment before judgment alleging that in spite of payment of consideration of Rs. 9 crores to Stemcor the said Stemcor failed to deliver the materials on time which was allegedly the essence of contract and accordingly contract stood repudiated on 1st March, 2008 and 1st May, 2008 respectively. An ex parte ad interim order of injunction was obtained on certain share investment of Stemcor on 23rd December, 2008 but these facts were suppressed in the petition of complaint. An Hon'ble Judge in the Original Side of this Court directed the Stemcor to file affidavit and recorded that the petitioner was ready and willing to honour the contract between the parties. The letter dated September, 24, 2008 allegedly issued by SESA does not show repudiation of contract. On the other hand, the said letter contains an offer to rescind the contract and refund of the advance amount or to convert a total quantity of 60,000 MT of CLO into 60,000 MT of screened lumps at the price prevailing during confirmation of the order. By this letter dated 27th October, 2008 Stemcor accepted on behalf of Padma Logistics the second mentioned offer of SESA as contained in their letter dated 24th September, 2008 and requested the SESA to intimate the lifting schedule so that supply can commence at the earliest. SESA failed to in time the delivery schedule despite the agreement to supply screened lumps as said above but alleged that their request through E-mail dated September, 24, 2008 was not open ended in the fluctuating market and secondly fresh offer of Stemcor does not fit into the same. Thus, according to the petitioner SESA is not interested to take delivery of the materials, while Stemcor is still ready and willing to supply screened lumps in accordance with the request made by SESA in their E-mail dated September, 24, 2008. The suit was counter blast in order to settle the payment in US dollar 8 million, approximately Rs. 40 cores owed by SESA to Stemcor U.K.Limited being the value of the consignment covered by the 5 letters of credit. The petitioner on behalf of Stemcor UK Limited made two demands, one by a letter dated 16.12.2008 and the other by 24.2.2008 to SESA on account of failure of SESA to take delivery of the consignments through the bills of lading. Further the allegations made in the petition of complain can at least make out a case of breach of contract for which appropriate remedy is the Civil Court and no element of mens rea is evident. The petitioner company was acting only as an agent of Padma Logistics and cannot be held responsible for the purported breach of contract between the O.P. No.2, namely SESA and M/s. Padma Logistics. There has not been any entrustment of any part of the goods. The complainant has been engaged in business relationship with the petitioner company since the year of 2003 and the present two contracts are not the first ones. The petitioners did not have any mens rea to cheat the complainant and even after litigations started the petitioner company and the O.P. No.2 have continued their business. It has been contended that the petition of complaint does not bring out prima/arte that the Stemcor had at the inception of the contract intention to deceive the complainant by accepting of sum of Rs.9 cores Mr. Sabyasachi Banerjee, learned advocate for the petitioner company submitted at the outset that it is ludicrous to suggest that there has been fraudulent representation made by the Stemor towards the SESA. The averment in paragraph 4 of the petition of complaint that the accused company- Stemcor represented to the complainant company that they have " huge span and magnitude of business, that they are very punctual to keep to commitment, that they are very sincere and honest in their business dealings cannot be said to be a fraudulent representation. Mere puffing of the capability of the accused company, even if it has been done, cannot be termed to be false representation because extolling virtue of a company cannot be termed to be a false representation within the meaning of section 114 of the IPC. The first contract dated 8.1.2008 recites that the delivery order would be issued immediately upon receipt of funds and the delivery was to be made within 30 days from the date of issue of D.O. The payment of Rs. 3 crores in respect of the contract dated 8.1.2008 was made on 21.1.2008 and according to the complainant D.O. was to be issued immediately on such date. The delivery of the articles as per the contract dated 8.1.2008 was to be made on or before 20.2.2008 which allegedly according to the complainant was not done. Thus, on 20.2.2008 it was within the knowledge of the complainant company that the accused company failed to act in terms of the contract which was allegedly the first transaction between the parties; but despite non- execution of the purported first contract the SESA went ahead and made further payment of Rs. 6 crores in two installments of Rs. 3 crores each on 3.3.2008 and 7.3.2008. In the FIR there is not averment that the petitioners had made any representation to the O.P. No.2 subsequent to 20.2.2008 regarding delivery of the first contract. It is inconceivable that a purchaser who once entered into purchase contract for the first time would enter into a second contract and make advance payment in respect of the value of the second contract when the seller failed to supply the goods of the first contract. Therefore, it is submitted that two contracts dated 8.1.2008 and 21.2.2008 were not the only contracts between the parties. Secondly it is submitted that at paragraph 19 of the FIR , it has been stated that purported false and fraudulent representations were made in the office of the complainant company at Strand Road under P.S. Burrabazar but in the civil suit the complainant stated that the contracts had been entered into subsequent to telephonic conversation with the petitioner No. 2 who is the executive of the complainant company having his office at Mumbai. It is submitted that where it is found that there has been existing series of transaction between the parties and one of such transactions has been mured in delay, such delay does not give rise to offence of cheating or criminal breach of trust. Mr. Banerjee referred to the plaint of the C.S. No.262 of 2008 instituted by the complainant company in the original jurisdiction of this Court and the documents annexed thereto and submitted that the documents referred to the plant can very well be considered and appreciated for the purpose of the deciding whether a prima facie case of cheating has been disclosed or not because the documents annexed to the plaint instituted by the complainant are the admitted documents and they can be treated to be the annexures to the complaint also. Mr. Moitra, learned advocate appearing for the complainant company admits this position but submits that the documents which have been annexed to the revisional application of the accused company and which are not common to the documents annexed to the plaint filed by the complainant cannot be looked into. To this Mr. Banerjee agreed . However, Mr. Banerjee argued that in paragraph 12 of the petition of complaint the O.P.No. 2 has referred to an electronic mail dated 10.5.2008 sent by the 0. P.No. 2 which provides that there existed contract relating to purchase and delivery of iron ore between the parties in August/September, 2007 which was prior to the two contracts alledged in the FIR. In paragraph 15 of the complaint the O.P.No. 2 has referred to a letter issued by the said O.P.No. 2- complainant dated 1.7.2008 wherefrom it would reveal that there had existed long business relationship between the parties. Therefore, the story that the alleged contracts were entered into by the complainant on fictitious and fraudulent representation made by the accused company falls flat. The e- mail dated 1.7.2008 which is a reply of the accused company would'reveal that the accused company requested the O.P.No. 2 to start lifting/taking delivery of iron ore of the specification as ordered by the O.P.No. 2. Again the letter dated 24.9.2008 sent by the O.P.No. 2 would reveal that the O.P.No. 2 put forward two proposals in the alternative . Further the letter dated 27.10.2008 sent by the accused company to the complainant company would reveal that the accused company had not only agreed to supply the goods i. e. screened CLO and also the screened lumps as requested by the O.P. No. 2 through their e-mail dated 24.9.2008. Again the letter dated 11.11.2008 which has been issued by the O.P.No. 1 would reflect that despite the earlier offer made by the accused company regarding supply of the ordered goods the O.P.No. 2 decided to move away from the contract and demanded refund of the money with interest. Thus, there has not been at any point of time denial by the accused company of payment of Rs. 9 crores as consideration towards the said two contracts the payment of which was received by Padma Logistics and Khanji Private Limited. It is thus apparent that the O.P.No. 2 had previous long standing transactions with the petitioner company and accordingly there was no cause for the complainant company to be swayed by the alleged fraudulent representation. The petitioner company vide their letter dated 27.10.2008 preferred to accept the offer so made by the O.P. No. 2 and expressed their ability to supply some other materials along with the materials as was asked for by the letter dated 24.9.2008. The O.P.No. 2 in their affidavit in reply admitted that they received e-mails dated 27.10.2008 and 8.11.2008. The letter through e-mail dated 8.11.2008 sent by the accused company to the complainant company would reveal that it was issued with the intention of intimating the fact that the accused persons were ready to supply materials in the nature of CLO 5/18 MM apart from screened lumps as per request of the O.P. No. 2 . The paragraph 1 of the complaint would reveal that the accused company has been described as a trader of iron ore and is connected with Midest Integrated Steel Limited and it shows that the de facto complainant was aware of the credibility and market reputation of the accused company. The only issue that has cropped up and which is admitted by the accused company was that there was delay in executing the two contracts. On bare perusal of the letter dated 27.10.2008 it would be evident that the petitioners had only accepted the fresh proposals of the de facto complainant dated 24.9.2008 but also was ready and willing to supply the materials. The petitioners at no point of time had made any dishonest representation inducing the complainant to part with Rs. 9 crores. Further it has been submitted that on the facts of the case the provision of section 405 of the IPC is not applicable because the principle envisaged in section 405 IPC clearly postulates that there must be entrustment at the inception and there has to be a conversion of the property which would go against the terms and spirit of entrustment. There was no entrustment of any money and there has been no conversion. Mr. Banerjee referred to the decisions in State ofHaryanav. Chaudhury Bhqjanlal & Ors., AIR 1992 SC 604, State of West Bengal & Ors. v Swapan Kumar Guha & Ors., AIR 1982 SC 949, S.W.Palanitkar & Ors. v. State of Bihar & Anr., (2002) 1 SCC 241, Zandu Pharmaceutical Works Ltd.& Ors. v. Md. Shafaful Haque& Anr., (2005) 1 SCC 122, Thelapuili Raghaviah v. SHO & Ors., JT 2007 (4) SC 493, G.Sagar Suriv. State of U.P. & Ors., (2000) 2 SCC 636, MurariLal Guptav. GopiSingh, (2005) 13 SCC 600, VeerPrakashSharmav. Anil Kumar Agarwal & Anr., 2007 (3) E.C.N. 190 {SC}, AjayMitrav. State of M.P. & Ors., JT2003 (1) SC: 418, Hari Prasad Chamaria v. Bishnu Kumar Surekha & Ors., AIR 1974 SC 301, Dr. Sharma's Nursing Home v. Delhi Admn. & Ors., (1998) 8 SCC 745, Hriday Ranjan Pd. Verma & Ors. v. State of Bihar & Ann, AIR 2000 SC 2341, Alpic Finance Ltd. v. P.Sdadasivan & Anr., JT 2001 (2) SC 588, Uma Shankar GopdUka v. State of Bihar & Anr., (2005) 10 SCC 336, And Mahqjan v. Bhor Industries Ltd., (2005) 10 SCC 228, RamBirqjiDeviv. UneshKr. Singh&Anr., JT 2006 (11) SC 133, InderMohan Goswamiv. State of Uttaranchal & Ors. , JT 2007 (11) SC 499, Indra Kanta Tiwari v. Smt. Rubu Bhattacharya @ Pubi Devi (2008) 1 Cr. Cr. Lr (Cal) 469, All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr., AIR 2008 SC 247 and B. Suresh Yadav v. Sharifa Bibi &Anr., 2007 (3) EGN 1432.;