HARSHAD A SHAH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN CRR 3120 of 2005 the two petitioners prayed for quashing of the proceeding being case No. C/115/05 under section 420/120b/34 or the IPC now pending before the learned Metropolitan Magistrate, llth Court, Calcutta on the ground as may be found in the subsequent paragraphs and together with this challenge has been made to the order dated 1. 3. 2005 of the learned Magistrate directing issuance of process against the petitioners and order dated 22. 6. 2005 directing issuance or warrant of arrest against the petitioners and also the order dated 19. 8. 2005 directing is suance of proclamation against them.

(2.) THE complaint was lodged by the opposite party No. 2 against two petitioners and another who are partners of Sri Mahabir Minerals carrying on business of supply and export of mineral processors. In the month of October 2004 the de facto complainant who is an exporter of Bentonite, a mineral in substance, badly needed to purchase 5,000 tones of foundry, grade, bentonite, lumps exclusively for export/supply to its valued overseas clients. The accused persons persuaded the complainant to honour them with the order and guaranteed to deliver the materials within stipulated period and strictly adhering to quality. The glossy and colourful representations by the accused persons impressed the complainant deeply and accordingly the accused persons sent by fax on 12. 10. 04 a proforma invoice bearing No. 2834 dated 11. 10. 2004 and the complainant placed in turn the formal purchase order No. 2730 dated 15. 10. 2004. The total amount agreed to be paid by the complainant's company to the accused persons was Rs. 20,60,000 and the Complainant remitted to the accused persons a sum of Rs. 10,00,000 by different cheques on 16. 10. 2004, 18. 10. 2004 and 4. 11. 2004. The 15th November 2004 was the date fixed for delivery of the materials and it was specifically mentioned in the purchase order that the schedule had to be strictly complied with. The accused persons were under the strictest obligation to submit samples on 26. 10. 2004 and 10. 11. 2004 but the accused persons on receipt of Rs. 10,00,000 quietly sat over the matter and did not submit any sample within the stipulated time or at all in spite of repeated request through its local authorised officer one Gautam Kar nor delivered the ordered materials within the stipulated time. Such failure on the part of the accused persons caused the complainant's company to fail exporting the materials resulting in its overseas clients canceling the export order and slapping upon the complainant a damage claim of USD 20,000 for delay in shipment. The accused persons in their letters dated 22. 11. 2004 and 29. 11. 2004 represented utterly incorrect, designed, planned, concocted, cooked and manufactured stories suiting their dishonest purposes denying their any realities. The complainant denied all such contentions and was constrained to cancel the purchase order by their letter dated 2. 12. 2004 and called for return of Rs. 10,00,000 with interest @ 22% p. a. plus a damage of Rs. 9,00,000. On 1. 12. 2004 the accused persons sent a letter questioning as to why the complainant's company was not taking delivery of the ordered materials lying ready since long back. The content of such letter is false. The complainant himself with Gautam Kar called on the office of the accused persons on 15. 12. 2004 and requested to settle the matter but unfortunately the complainant was treated very objectionably. On 27. 12. 2004 the complainant received a fax message from the accused persons whereby the accused persons dishonestly and designedly contended that in the said uneld meeting everything was settled. The content of the fax is false. It is, therefore, clear that the accused persons entered into deep criminal conspiracy to cheat the complainant's company by making false and fake representations and induced the complainant's company to part with a cash of Rs. 10,00,000 which they misappropriated and cheated the complainant causing thereby wrongful gain to themselves and wrongful loss to the complainant's company. The complainant had trust and confidence reposed in the accused company and exploiting such trust and faith the accused persons committed the offence and cheating and criminal breach of trust.

(3.) THE grounds of revision are that allegations in the petition of complaint are false, that they did not constitute commission of any cognizable offence, that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners, that the ingredients of the offence of criminal conspiracy and of cheating have not been averred in the complaint, that there was no allegation of initial mens rea of deception, without which no offence under Section 420 of the IPC can lie, that there are claims and counterclaims as against the parties, that the accused per sons by their letter dated 1. 12. 2004 inti mated the complainant's company that ordered materials were ready for delivery and it was not understood why the delivery was not taken by the complainant's company, that the learned Magistrate ought to have allowed an opportunity to the petitioners to make application under Section 205 cr. P. C. particularly when the accused persons are not going to challenge their identity and that in the circumstances, the proceedings be quashed.