- (1.) THIS is an application for quashing the entire criminal proceeding in connection with Adityapur P. S. Case No. 252 of 2004 dated 8.11.2004 (G.R. No. 815 of 2004) under sections 406 and 420 of the IPC pending in the court of CJM, Seraikella.
(2.) THE case of complainant in short is that in pursuant to an advertisement published in the Newspaper the complainant entered into an agreement with the petitioners for starting IT Enabled Education through Zed Career Academy. It is further alleged that the said project based on Computer Education and a sum of Rs. 3 lakhs was charged as franchisee fee besides an amount of Rs. 44,000/ - for start up kits and the duration of the said agreement was for five years. It is further stated that the said project of the Zed Career Academy was inaugurated on 4.6.2000 with complete arrangements and requirements after incurring huge expenses by the complainant. It is further alleged that in the meanwhile another advertisement issued in the daily Telegraph by the petitioners for launching zee Livewire Project. It is further stated that the complainant and the petitioners signed a memorandum of understanding for the second project i.e. Zee Livewire on 01.09.2000. Thereafter as demanded, complainant paid Rs. 4, 00,000/ - to the petitioners for Zee Livewire Project vide Demand Draft No. 010853. It is further stated that the petitioners refunded Rs. 65,000/ - to the complainant as an excess amount paid to him towards franchisee fee of Zee Livewire Project and retained a total sum of Rs. 3,55,000/ -. It is further alleged that as required by the petitioners, complainant had build up the entire infrastructure for launching of the project Zee Livewire but in spite of the same, the petitioners had delayed the installation of Zee Livewire project in the complainant's company. It is stated that even on several reminder, the petitioners did not launch aforesaid Zee Livewire project and ultimately in the end of January 2002, terminated the current I -Cell service. It is alleged that due to failure of the petitioners in launching Zee Livewire/I -Cell Project, complainant sustained huge loss, therefore asked the petitioners to return the franchisee fee. It is further stated that out of Rs. 3,55,000/ -, the accused -petitioners returned Rs. 1,92,600/ - in three consecutive dates, but still Rs. 1,62,400/ - is due with the petitioner which has not been refunded to the complainant. It is further alleged that due to the non fulfillment of promise by the petitioners, the complainant sustained huge loss. Accordingly, it is alleged that the accusedpetitioners committed an offence under section 406 and 420 of the IPC. It is submitted by learned counsel for the petitioners that from the allegations made in the FIR; a civil dispute is made out for non performance of contractual obligation by the petitioners. It is further submitted that in order to avoid civil litigation and huge court's fee, the complainant has adopted a circuitous method by filing a complaint petition and with a view to blackmail the petitioners. It is further submitted that from the perusal of complaint petition, it is clear that there is no allegation against any of the petitioners that they have criminally misappropriated any money of the complainant (O.P. No. 2). On the contrary, there are materials to show that the petitioners returned the parts of franchisee money to the complainant (O.P. No. 2) and they are still ready to return the rest of the amount, but the complainant is refusing to take back the said amount in the guise of the present FIR for extorting more money. It is further submitted that there is no allegation in the entire complaint petition that the petitioners had induced the complainant and thereby fraudulently taken delivery of property which are the essential ingredients of the offence of cheating. Hence offence under section 420 of the IPC is also not made out.
(3.) ON the other hand, learned counsel for the Opposite Party submits that still the petitioners were not refunding Rs. 1,62,400/ - to the complainant which they have misappropriated for their own use. Therefore an offence under section 406 of the IPC is made out. It is further submitted that the petitioners had given the attractive and impressive advertisement in the Newspaper for launching Zee Livewire Project and thereby induced the complainant for paying Rs. 4, 00,000/ - as franchisee fee. The said promise has not been fulfilled by the accused petitioners; therefore the offence of cheating is made out against accused -petitioners.;