Madhumati Mitra, J. - The present petitioner is a company within the meaning of the Companies Act 2013 and is duly incorporated under the provisions of the Companies Act, 1956 and carrying on business of original equipment manufacture of multi-function containers, material handling systems and coal mining equipment.

2. The petitioner approached before this Court by filing an application under section 482 of the code of criminal procedure, 1973 praying for quashing of the proceedings of G.R. Case No.2917 of 2015 arising out of Shakespeare Sarani (Section K2) Police Station Case No.443 dated December 29, 2015 under Sections 420/120B of the Indian Penal Code.

3. Present opposite party No.2 Sukriti Kumar Dasgupta, Deputy General Manager (Production) Oil & Natural Gas Corporation Limited lodged one written complaint with Shakespeare Sarani (Section K2)Police Station against the present petitioner and one G.M.S. Shipping Containers Pvt. Ltd for commission of the alleged offence punishable under Section 120B/420 of the Indian Penal Code. It was alleged in the said First Information Report that the present petitioner while taking part in a Tender of Oil & Natural gas Corporation Limited regarding supply of Bunk Houses had misrepresented facts and used fraudulent means. It was the specific allegation in the said First Information Report that there was conspiracy between the present petitioner and GMS Shipping & Containers Private Limited and on the basis of that conspiracy the petitioner during tender claimed that they were the distributors/agent for marketing of GMS Shipping & Containers Private Limited make Bunk Houses and would supply Bunk Houses manufactured by GMS Shipping & Containers Private Limited. Subsequently on scrutiny carried out by the Vigilance Department it revealed that Indicon Enterprises Ltd. actually supplied Bunk Houses manufactured by themselves and not manufactured by GMS Shipping & Containers Private Limited.

4. On the basis of the First Information Report lodged by the opposite party No.2 Shakespeare Sarani Police station Case No.443 of 2015 dated 29.12.2015 was initiated against the present petitioner and GMS Shipping & Containers Private Limited.

5. During the course of hearing, Learned Counsel appearing for the petitioner has forcefully contended that the criminal proceedings arising out of Shakespeare Sarani Police Station Case No.443 of 2015 are not maintainable in Law. In support of his contention, Learned Counsel has invited the attention of the Court to the contents of the First Information Report and submitted that the ingredients of the offence of cheating are totally absent. He has continued to argue that the First Information Report neither disclosed mens rea nor dishonestly inducing delivery of property. According to his contention the allegation contained in the First Information Report failed to disclose that from the very beginning the petitioner had fraudulent and dishonest intention and the substance of complaint does not constitute the offence of cheating. He has also contended that the alleged acts as mentioned in the complaint do not come within the definition of cheating. Failure to supply goods in terms of contract or agreement may be considered as breach of contract and every breach of contract would not give rise to an offence of cheating.

6. Learned Counsel for the petitioner has also contended that the opposite party no.2 carried out inspection at different stages at the premises of the petitioner as per the inspection procedures laid down in Tender conditions and the said inspections were duly conducted to the satisfaction of the opposite party No.2. Thereafter on May 29, 2013, the opposite party No.2 issued a certificate certifying that the petitioner had delivered the Bunk Houses and one toilet bunk house as per purchase order dated 12.12.2012. It is the specific contention of the Learned Counsel that the opposite party was fully satisfied regarding the supply of Bunk Houses as per purchase order and thereafter issued the certificate on 12.12.2012. According to his contention subsequent lodging of FIR after more than three years from the date of receipt of Bunk Houses had no basis at all. He has further argued that the criminal proceedings are barred by delay and more so no explanation of delay in lodging the First Information Report was given by the opposite party. He has vigorously argued that continuance of the criminal proceedings against the petitioner would be by an abuse of the process of the court.

7. Certified copy of the case diary has been produced by the Learned Counsel for the State of West Bengal.

8. During the course of hearing a specific plea has been raised on behalf of the petitioner that the failure of the petitioner to supply Bunk Houses as per specification does not come within the purview of offence under Section 420 of the Indian Penal Code as there was no such dishonest intention to deceive the complainant.

9. In the First Information Report it was specifically alleged that during tender the petitioner described themselves to be the distributor/agent of GMS Shipping and Containers Private Limited make Bunk Houses and confirmed that they would supply Bunk Houses/materials as per respondent companys tender specification. The petitioner also submitted agreement between M/s GMS Shipping and Containers Private Limited and them. It was also alleged that the petitioner supplied Bunk Houses prepared by them not by the M/s GMS Shipping and Container Pvt. Ltd which was not as per the specification. From the averments of the First Information Report it appear that the petitioner obtained the purchase order by agreeing to supply the Bunk Houses as per the specification and submitted an agreement showing that they were the distributor or the agent of GMS Shipping & Containers Pvt. Ltd.

10. As per the averments of the written complaint and the materials in the case diary it appears that at the very inception the petitioner had the knowledge about the specification of supply of Bunk Houses and for getting the purchase order the petitioner claimed themselves to be the distributor/agent of GMS Shipping and Containers Private supply Ltd. From the allegation of the written complaint and the materials placed in the case diary it appear that at the very inception the petitioner played deception for the purpose of getting order to supply Bunk Houses.

11. The essential ingredient for an offence under Section 420 of the Indian Penal Code is that there must be dishonest intention to deceive another person. From the allegation contained in the written complaint such dishonest intention can be found or inferred. It is true that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. The averments in the FIR prima facie made out case for commission of the alleged offence of cheating.

12. In the First Information Report it was specifically mentioned that the Vigilance Department carried out scrutiny which revealed that the petitioner supplied Bunk Houses manufactured by themselves and not manufactured by GMS Shipping & Containers Private Limited. Complaint was lodged after detection of the alleged offence.

13. Thus having regard to the facts and circumstances stated and discussions made above, I am of the view that continuance of the criminal proceedings pending against the petitioner cannot be said to be an abuse of the process of the court.

14. As a result the application under Section 482 of the Code of Criminal Procedure stands dismissed.

15. Interim order, if any, stands vacated.

16. Before parting with the case, I would like to clarify that the observations as made in this judgment should not be taken as an expression of any opinion regarding the merit of the criminal proceedings pending before the Learned Magistrate. The Learned Trial Magistrate shall proceed with the case and dispose of the same in accordance with the law with utmost expedition.

17. Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.

18. Let the true copy of the case diary produced by the State be handed over to the Learned Advocate for the State immediately.