Calcutta High Court (Appellete Side)
Ram Sharan Singh & Anr vs The State Of West Bengal & Anr on 4 July, 2025
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
Justice Bibhas Ranjan De
C.R.R. 4070 of 2024
With
C.R.R 4071 of 2024
Ram Sharan Singh & Anr.
Vs.
The State of West Bengal & Anr.
For the Petitioners :Mr. Krishnendu Bhattacharya, Adv.
Mr. Anirban Kumar Banerjee. Adv.
For the Opposite Party No. 2 :Mr. Hareram Singh, Adv.
Mr. Saptarshi Rajan Chatterjee, Adv.
Last Heard on :19.06.2025
Judgment on :04.07.2025
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Bibhas Ranjan De, J.
1. At the very outset it would be pertinent to mention that for
brevity of discussion both the revision applications arising
out of self same cause of action have been taken up together
for disposal via this common judgment.
2. Both the revision applications being CRR 4070 & 4071 of
2024 have been preferred at the behest of the petitioners
with a prayer for quashment of the impugned criminal
proceedings being complaint case no. 80903 of 2024 (in
relation with CRR 4070 of 2024) and complaint case no.
79775 of 2024 (in relation with CRR 4071 of 2024) presently
pending before the Court of Ld. 16th Metropolitan Magistrate
(presently 16th Judicial Magistrate), Calcutta for the alleged
offence under Section 420 of the Indian Penal Code
(hereinafter IPC) corresponding to Section 318(4) of the
Bharatiya Nyaya Sanhita, 2023 (hereinafter BNS).
Background:-
3. The genesis of the impugned prosecution are the petitions of
complaint filed at the behest of the opposite party no. 2 in
terms of Section 200 of the Code of Criminal Procedure
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(hereinafter CrPC) before the Court of Ld. Chief Metropolitan
Magistrate, Calcutta alleging inter alia that the complainant
company under the name and style of True Blue Asset
Services Private Limited was engaged in business of
financing. The Petitioners /accused approached the
complainant company for financial assistance with a
representation that they are in urgent need of financial
assistance and they have very good reputation and good will
in the market. To add to that assurance of timely repayment
of the loan amount in compliance with the terms and
conditions of the argument without any default was also
made by the petitioners. Thereafter, the opposite party no.
2/complainant company upon being satisfied with
background and credentials of the petitioners sanctioned a
loan through conditional sale agreement being Agreement
No. TBASS00326 dated 12/20/2020 for the Asset XE210,
Engine/Machine/Serial Number 807441900 for the asset.
Accordingly, two loan contracts being (TBASS00321) and
(TBASS00326) were executed, each for Rs. 38,79,824/-
totaling to Rs. 77,59,648. But soon after availing the loan
facilities, the petitioners started defaulting in repayment only
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after making payment of few months’ installments. Inspite of
several follow ups and repeated reminders and several
opportunities being given to the petitioners to repay
outstanding amount, on each and every occasion the
accused persons denied repayment on different pretexts and
lastly refused to repay the overdue amount i.e. Rs.
28,20,000/- & Rs. 26,79,000/- respectively including penal
interest and bouncing charges. Finally, a legal notice dated
21.03.2024 was sent to the petitioners demanding
repayment of the outstanding amount within 7 days from the
said receipt of notice. But inspite of service the petitioners
did not give any response and being aggrieved finding no
other alternative the opposite party no. 2 initiated the
impugned criminal proceedings before the Court of Ld. Chief
Metropolitan Magistrate, Calcutta.
Argument advanced:-
4. Mr. Krishnendu Bhattacharya, Ld. Counsel, appearing on
behalf of the petitioner to begin with has argued that the
order of taking cognizance evidently unveils no application of
any judicious mind for its inherent susceptibility as Ld.
Magistrate has failed to consider that the petition of
5complaint at best reveals mere breach of contract. The
existence of part payment only gives rise to a civil dispute
that at best warrants intervention of competent Civil Court
for recovery of money and machinery. In this regard, Mr.
Bhattacharya has further added that the petition of
complaint manifestly demonstrates that the accused persons
including the company are situated outside the territorial
jurisdiction of Ld. Trial Court. Whereas Section 202 of the
CrPC clearly mandates upon the Ld. Magistrate to conduct
enquiry in such cases. But no enquiry in terms of Section
202 of CrPC was ever directed by the Ld. Magistrate and
process was issued defying settled proposition of law which
is a gross abuse of the process of Court.
5. Ld. Counsel has further continued that the
complainant/opposite party 2 herein issued statement of
accounts under their letter head which evidently show that
total amount of loan granted to the petitioner for two
contracts amounted to Rs. 77,59,648/- and till 20.03.2023
the complainant has received Rs. 38,95,600/-. But, such
receipt of substantial amount has maliciously been
6suppressed in the petition of complaint as well as in the
statement made before the Ld. Magistrate.
6. In his concluding statement, Mr. Bhattacharya has tried to
make this Court understand that the assertion made in the
complaint as well as in the pre-summoning evidence led by
the opposite party no. 2 primarily pertain to breach of
agreement vis-a-vis non-payment of loan as no ingredients
can be made out to establish the condition and incidents of
penal liability set out under Section 420 of the IPC
[corresponding to 318(4) of the BNS] because the offence of
cheating cannot be established if the complainant is unable
to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation.
But in the instant case there are no allegations to the effect
that the petitioners had engaged in dishonesty, fraud or
intentional inducement to cause delivery of any property to
them by the opposite party no. 2. Therefore, it would be
crystally clear that only an attempt has been made by the
opposite party no. 2 herein to invoke criminal jurisdiction by
filing a vexatious criminal complaint camouflaging
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allegations which are ex facie civil in nature with the sole
motive to recover the due amount.
7. With a view to bolster his submission, Mr. Bhattacharya has
taken assistance of the following cases:-
Graves Cotton Limited and others vs State of West
Bengal and another, 2023 SCC OnLine Cal 454
Satishchandra Ratanlal Shah vs. State of Gujrat and
another, AIR 2019 Sc 1538
8. Per contra, Mr. Hareram Singh, Ld. Counsel, appearing on
behalf of the opposite party no.2 at the very outset has
vehemently contended that petitioners have deliberately
tampered with the GPS system of the financed assets with
mala fide intention to prevent the opposite party no. 2 from
locating and recovery its rightful property. This act of
tampering is not merely a civil breach but demonstrate a
clear criminal intent to dishonestly conceal the asset for
which financing was provided.
9. Mr. Singh has further added that the petitioners consistently
refused to share information regarding the number of hours
the asset has been operated and the revenue generated from
it despite repeated requests from the opposite party no. 2.
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This deliberate withholding of information is a clear
indication of the petitioners’ dishonest intention from the
inception of the loan agreement. Such actions made at the
behest of the petitioners clearly demonstrate the ingredients
of the offence under Section 318(4) of the BNS
(Corresponding to Section 420 IPC). Therefore, Mr. Singh has
suggested that acts that include tampering with GPS, refusal
to share operational details and threatening of company
representatives further establish the dishonest intention that
existed from the inception.
10. Before parting with, Ld. Counsel has tried to make this
Court understand that the Ld. Magistrate committed no error
in taking cognizance of the offence. In support of this
contention, he has referred to the order dated 09.07.2024
which clearly indicates that the Magistrate’s conclusion was
based on careful examination of the documents and
testimony which revealed the dishonest intention of the
petitioner from the inception of the transaction.
11. In order to further substantiate his plea, Ld. Counsel Mr.
Singh has referred to the case of Y. Abraham Ajith and
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others vs Inspector of Police, Chennai and another,
(2004) 8 Supreme Court Cases 100.
Analysis:-
12. Before delving into meticulous examination of the issue
involved in these applications, I feel it to be apt to first
discussed the ratio of the cases relied on behalf of the
parties.
13. In the case of Graves Cotton Limited (supra) Hon’ble
Co-ordinate Bench of this Court was of the opinion that if in
a case where the complaint itself fails to make out any
offence, added to that the examination under Section 200 of
the CrPC also do not attract to any culpability or accused
persons so named, mere non-compliance of Section 202 of
CrPC would never deter the High Court from exercising its
inherent powers in such cases where persons are asked to
face a criminal trial without any substantive cause of action
being made out.
14. In the case of Satishchandra Ratanlal Shah (supra)
the Hon’ble Apex Court deprecated the practice of
criminalizing civil disputes, such as breach of contractual
obligations. It was further held that the intention of the
10
legislature was to criminalize only those breaches which are
accompanied by fraudulent, dishonest or deceptive
inducements which resulted in involuntary and inefficient
transfers.
15. Per contra, Mr. Singh has relied on the case of Y.
Abraham Ajith (supra). In the written note of argument filed
on behalf of the opposite party no. 2, Ld. Counsel has quoted
certain observation of the Hon’ble Apex Court which runs as
follows:-
” The manipulation of property that was subject to a
financial agreement, particularly attempts to conceal its
whereabouts, is strong evidence of a dishonest intention
at the time of entering into the agreement.”
16. However, after going through the above referred judgment
it has come to my utter despair that no such observation has
ever been made by the Hon’ble Apex Court in that case.
Moreover, the issue involved in that case was of domestic
violence and naturally the factual build up of that case has
got no bearing with the case at hand.
17. After carefully weighing the competing arguments and
delving into the Core of this intricate matter, I have
11
determined that this Court is now called upon to resolve the
following two pivotal issues:-
i. Does the non-compliance with the provisions
enshrined in Section 202 of the CrPC, invariably
result in the quashing of the entirety of the
judicial proceedings?
ii. Could the deliberate manipulation of a subject
property in a financial agreement, in the form of
concealing its where about, potentially invoke the
grave ramification of the offence of cheating under
Section 420 of the IPC [Section 318 (2) of BNS].
18. Before embarking upon thorough exploration of this
matter, it would prove most illuminating to revisit the
provision of Section 420 IPC which runs below:-
“420. Cheating and dishonestly inducing
delivery of property.–
Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person,
or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or sealed,
and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either
12description for a term which may extend to seven years,
and shall also be liable to fine.”
19. It is axiomatic that the core object behind Section 202
CrPC (225 of the BNSS) is to enable the Magistrate to
scrutinize the allegation made in a complaint carefully,
before issuing process against the accused. This scrutiny
aims to prevent the issuance of process in cases where there
is no prima facie case, thereby avoiding unnecessary
harassment and protecting the accused from frivolous
proceedings.
20. Object and reason of 2005 amendment is to prevent filing
of any false complaint against person residing at far off
places simply to harass them. The amendment was made in
order to protect innocent persons from harassment by
unscrupulous persons. The amendment makes it obligatory
upon the Magistrate that before summoning the accused
residing beyond his jurisdiction, he shall enquire into the
case himself or direct investigation to be made by a police
person or by such other person as he thinks fit, finding out
whether or not there are sufficient grounds for proceeding
against the accused.
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21. Therefore, Amendment Act 2005 makes it obligatory
upon the Magistrate to find out whether or not, there was
sufficient ground for proceeding against the accused before
issuing process in such cases where the accused resides in
an area beyond the territorial jurisdiction of the Magistrate
concerned.
22. In a scenario where Magistrate has conducted an enquiry
by recording evidence on solemn affirmation, it is my
considered opinion that such a proceeding cannot, by any
reasonable interpretation, be construed as a non-compliance
with the provisions of Section 202 of the CrPC (225 of the
BNSS), particularly in the light of amendment introduced by
the Act 2005.
23. In the case at hand, on receipt of complaint, Chief
Metropolitan Magistrate, Calcutta took cognizance on
perusal of the materials on record and transferred the case
to Metropolitan Magistrate 16th Court, Calcutta for inquiry
and disposal according to law. Ld. Metropolitan Magistrate
then inquired about allegation made in the complaint by
recording evidence on solemn affirmation as well as verifying
the documents filed before the Court, under Section 202 of
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CrPC (225 of the BNSS), before issuance of process under
Section 204 CrPC (227 of BNSS).
24. In this situation, I am of the view that unless prejudice is
caused to the accused, the Magistrate’s non-compliance with
Section 202 of CrPC (225 of the BNSS), does not vitiate the
proceedings nor render them invalid – such a procedural
lapse, in the absence of demonstrable harm, remains a
technical irregularity rather than a fatal flaw undermining
the Judicial Process.
25. In the aforesaid view of the matter, the first issue is
answered against the accused/petitioner herein.
26. We now turn to gravamen of the second issue – the
allegations encapsulated within the complaint, which is said
to delineate an offence of cheating under Section 420 of the
IPC [318 (4) of BNS].
27. Each and every allegations set forth within the
complaints are delineated within the bounds of paragraphs 3
to 13. Those are reproduced below:-
“3. That the accused person approached the
complainant company and represented that he/she is in
urgent need of financial assistance and further
represented that he/she have very good reputation and
goodwill in the market, if the complainant company
15provides him/her financial assistance then he/she will
repay the loan amount on time without any default and
will abide by the terms and conditions. Thereafter,
having satisfied about the background and other
satisfactory relevant reason, Le proof of identity,
residence and in sound sources of income and thereafter
upon believing the representation to be true and
genuine, the complainant company deeply impressed by
such glorious and colorful representation and reposed
faith and trust upon the accused persons and acceded
to his/her proposal and pleased to sanction the Loan
through Conditional Sale Agreement being Agreement
No. TBASS00326 Dated 12/20/2020 for the Asset
XE210, Enone/Machine/Serial Number 807441900 in
favor of the accused person upon the unambiguous
assurance and/or promises made by the accused
person to fulfill all terms and conditions as well as
payment for the same.
4. That in order to create faith upon the complainant
company the accused person furnished and submitted
several documents to show that the said accused person
was a person of repute, having permanent place of
residence and also showed his/her income proof, which
showed his/her financial capacity.
5. The accused persons further fraudulently agreed and
undertook that the said amount would be repaid in time.
The said agreement between the complainant company
and the accused persons was executed at the
Complainant Company’s office which is under the
jurisdiction of this Learned Court.
6. That the complainant believing upon the
representation to be true made by the accused person
and also having assurances of timely repayment the
16granted Loan in favour of the accused person, and
thereafter accused person started using and or enjoying
the Loan facility. The accused shail make to fulfill all
terms and conditions. as well as the payment for the
same but the accused person have failed to which
shows the malafide/dishonest intention to cheat the
Complainant Company as well as public money.
7. Unfortunately and shockingly, the accused persons
after making payment of only few monthly installments
the accused deliberately failed and/or neglected and/or
refused to pay the monthly installment to the
complainant. On several occasions the complainant
repeatedly requested the accused persons to make
payment of the said loan amount but neither payment
was made nor any reply to the said request was given
to the complainant and huge amount of loan
installments have fallen due which caused wrongful
loss to the complainant and Wrongful gain to the
accused persons.
8. Even it is being found that the accused have either
dismantled or manipulated with the GPS of the asset
with malafide intention to hide the location of it.
9. The Complainant Company has requested the
accused to share the number of hours the asset has
runned and the revenue generated by it but the accused
did not turn up with any reply.
10. That thereafter using the said loan facility the
accused person did not repay the same and in spite of
several follow ups and repeated reminders and several
opportunities being given to the accused person to repay
the said loan/outstanding amount but on each and
every occasion the accused person started buying time
on different pretext and lastly refused to repay the
17loan/overdue amount i.e. Rs. 2820000/-in the said loan
account including penal interest and bounting charges
as on date to the complainant company. And also
Accused Threating to the representative of the
Complainant Company if he/she requested for making
payment again and visit accused persons house then
the representative of the complainant will face dire
consequence in future.
11. That being entrusted by way of said loan, issued by
the complainant, the accused person have dominion over
same and dishonestly used as well as misappropriated
the same, which is absolutely public money and the
accused person converted the same for his own
wrongful use causing wrongful gain to him and huge
wrongful loss to the complainant company.
12. By a legal notice dated 21.03.2024 which was
posted on 22.03.2024, the Complainant through his
Learned Advocate send notice to the accused persons
through REGD. Post and thereby calling upon the
accused persons to repay the outstanding loan amount
i.e. Rs. 2820000/- due as on 20.03.2024 along with up
to date interest & other charges as agreed within 7 days
from the said receipt of this notice but inspite of service
of the said notice the accused persons did not pay the
said amount to the complainant company which clearly
show their malafide intention from the very inception to
cheat the complainant company is annexed hereto and
collectively marked as Annexure “B”.
13. What has been canvassed in the aforesaid
paragraphs it is palpable and glaring that the accused
person since inception has got no intention to repay the
said Loan Facility amount and to cheat the complainant
company and by making representation and assurances
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which subsequently turn out to be false induced the
complainant company to part with the said amount and
thereby converted the same for his own wrongful use
causing wrongful gain to him and huge wrongful loss to
the complainant and thereby cheated the complainant to
the tune of Rs. 2820000/-.”
28. The Hon’ble Apex Court in various landmark decisions
has made a very clear suggestion that the High Court’s while
exercising its power under Section 482 of the CrPC is not
required to conduct a mini trial as this is not the stage
where the prosecution/ investigating agency is required to
prove the charges. The charges are required to be proved
during the trial on the basis of the evidence led by the
prosecution/investigating agency. Therefore, the Hon’ble
Apex Court handed down that if the High Court while
exercising inherent jurisdiction under Section 482 of the
CrPC makes an observation that the charges against the
accused are not proved, by going in detail in the allegations
and the material collected during course of the investigation
against the accused, then they will commit material err in
doing so.
29. As at the stage of discharge and /or while exercising the
power under Section 482 of the CrPC, the Court has a very
19
limited jurisdiction and is only required to consider “whether
any sufficient material is available to proceed further against
the accused for which the accused is required to be tried or
not.” In addition to that the Hon’ble Apex Court has further
held that at the initiation of the Criminal Proceedings,
whether the criminal proceedings are malicious or not, is
not required to be considered at the stage of quashing as
it is required to be considered only at the conclusion of
the Trial. The only material requirement which is to be
considered is a prima facie case and the material collected
during investigation, which warrants the accused to be tried.
30. It is trite law that a mere failure to honour contractual
term does not attract the offence of cheating. But, the
manipulation of subject property in a loan transaction made
under agreement for conditional sale may attract the offence
of cheating under Section 420 IPC [318 (4) of BNS], but only
if the essential elements of the provision are satisfied i.e.
initial fraudulent intent.
31. In the case at hand, there is a specific allegation of
manipulation of G.P.S of asset showing prima facie element
of intention to deceive the lender at the time of entering the
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agreement unlike mere breach of contract or failure to fulfill
contractual obligations.
32. In light of the above discussion, I am unable to interfere
with impugned proceeding at this stage by invoking power
under Section 482 of CrPC as all the material contradictions
with regard to the alleged occurrence is a subject matter of
trial and from careful perusal of the available evidence this
Court cannot conclude that the allegations made in the
complaint do not prima facie make out any offence. Nor can
it conclude that the allegations made therein are patently
and inherently improbable which will make the instant
revision application a fit case for quashing as per the
exhaustive guidelines of the Hon’ble Apex Court. And to add
to that, in the present case, the nature of allegation is not in
respect to any breach of contract simpliciter.
33. To exercise the inherent power under Section 482 of the
Cr.P.C is not the rule but it is an exception which can be
applied only if it appears to the Court that miscarriage of
justice would be committed if the trial is allowed to proceed
further. This Court is also not oblivious to the settled
proposition of law that this Court cannot function either as a
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Court of appeal or revision and this power can only be
exercised to prevent abuse of the process of the Court.
34. As a sequel, both the revision applications being no. CRR
4070 of 2024 & CRR 4071 of 2024, being devoid of merits,
stand dismissed.
35. Connected applications, if any, stand disposed of
accordingly.
36. Interim order, if any, stand vacated.
37. All parties to this revisional application shall act on the
server copy of this order duly downloaded from the official
website of this Court.
38. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]