JUDGMENT:- (1). The present petitioner who had been arraigned as an accused in connection with Hare Street Police Station Case No. 132, dated March 4,2004 under Section 420 of the Indian Penal Code, corresponding to G.R. Case No. 540/04, now pending before the learned Metropolitan Magistrate, 5th Court, Calcutta, after filing of charge-sheet for the self-same offence i.e. an offence under Section 420 of the Indian Penal Code, moved an application in the Court below praying for their discharge from the said case. The learned Magistrate however rejected the prayer for discharge. Against the said order the petitioner moved a criminal revision before the City Sessions Court at Calcutta, but the said criminal revision was dismissed and order passed by the Trial Court was affirmed, Hence this criminal revision. (2). Mr. Joy Sengupta, the learned Counsel, appearing on behalf of the petitioner submitted that from the allegations made in the First Information Report as well as the materials collected by the police during the investigation, the offence for which charge-sheet has been submitted cannot be said to have been made out. Mr. Sengupta draws the attention of this Court to the averment made in the First Information Report as well as the materials collected by the police during investigation and submitted that admittedly out of Rs. 25 lakhs which was given to the present petitioner as an Inter Corporate Deposit, a sum of Rs. 10 lakhs has been returned as well as the interest were also paid. According to him this is a circumstance which clearly shows that there cannot be any offence of cheating. He further submitted that on the allegations contained in the First Information Report coupled with the materials collected by the police during investigation at best a case of civil dispute has been tends to make out. He submitted there is no allegation of initial deception and no case of cheating has been made out except a case of failure to keep promise. Mr. Sengupta in support of its case relied on the following decisions of the Honble Apex Court, viz. in the case of S. W. Palanitkarand Ors. v. State of Bihar and Anr., reported in 2002 SCC (Cr) 129 ; Hridaya Ranjan Prasad Verma and Ors. Mr. Sengupta in support of its case relied on the following decisions of the Honble Apex Court, viz. in the case of S. W. Palanitkarand Ors. v. State of Bihar and Anr., reported in 2002 SCC (Cr) 129 ; Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr., reported in 2000 SCC (Cr) 786 : 2000 C Cr LR (SC) 293 ; Medchl Chemicals fit Pharma (P) Ltd. v. Biological E. Ltd. and Ors., reported in 2000 SCC (Cr) 615 :2000 C Cr LR (SC) 488 and Harshad Himmatlal Rupani v. The State of West Bengal and Anr., reported in (2008)1 C Cr LR (Cal) 523. (3). On the other hand, Mr. Tirthankar Ghosh, the learned Advocate, appearing on behalf of the defacto-complainant submitted that although out of Rs. 25 lakhs which was given to the company of the petitioner as Inter Corporate Deposit, a sum of Rs. 10 lakhs have been returned and a few monthly interests were paid but the petitioner has not refunded balance amount of the said deposit within the stipulated period of 180 days. According to him the said Rs. 10 lakhs and a few interests were paid only to create confidence in the mind of the complainant so as to get the schedule of payment deferred. He further submitted by making such payment the petitioner deceived the petitioner and thereby induced him to extend the date of the payments. He further submitted finally the petitioner executed a memorandum of understanding wherein under he agreed to hand over a flat belonging to his company if not the balance amount of Rs. 15 lakhs is paid within the stipulated period but even after expiry of the stipulated period neither the balance amount has been paid nor the possession of the flat has been handed over to the complainant. He submitted that police very rightly submitted charge-sheet in this case and the learned Court belows committed no mistake in rejecting the petitioners prayer for discharge. Mr. Ghosh in support of his contention relied on a decision relating to the case of Rajesh Bajaj v. State NCT of Delhi and Ors., reported in (1999)3 SCC 259 : 1999 C Cr LR (SC) 234 and submitted that mere part payment or payment of interest will not take out the case from the ambit of an offence under Section 420 of the Indian Penal Code. (4). Mr. (4). Mr. Swapan Kumar Mallick, the learned Advocate produced the Case Diary and submitted that the grounds on which the petitioner sought for quashing of the same cannot be pressed into service at this stage and is a matter of trial and not be a ground for discharge. (5). In reply to the submissions made by Mr. Ghosh with reference to the decisions of Rajesh Bajajv. State NCT of Delhi and Ors. (supra), Mr. Sengupta relied another decision of the Honble Apex Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr., reported in 2005 SCC (Cr) 489: (2005)2 C Cr LR (SC) 253 and submitted that there cannot be any precedence on facts, According to him in the case of Rajesh Bajaj v. State NCT of Delhi and Ors. (supra), the Apex Court never laid down even in a case where a part payment has been made still there be an offence of cheating and part payment never suggests that there was no intention to cheat from the very beginning. (6). Heard the learned Advocates appearing on behalf of the parties, Perused the First Information Report as well as the evidentiary materials collected during the investigation and the accompaniments of the charge-sheet. I also perused the Lower Court Records. (7). The content of the FIR as well as the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure manifest the following facts:-(a) Swayed by the rate of interest 18% P.A. offered by the accused and on condition such deposit would be refunded within three months, the complainant made the Inter Corporate deposit of Rs. 25 lakhs on April 1, 1997 at the company of the accused. (b) Such deposit was made by Cheque No. 515572, dated 10.10.96 for Rs. 20 lakhs and another Cheque No. 515573, dated October 2,1996 for Rs. 5 lakhs both drawn on Standard Chattered Bank, N.S. Road Branch. (c) On May 2, 1997 the accused refunded a sum of Rs. 10 lakhs out of the total amount of deposits and further assured that remaining amount would be paid within the due time. (d) After expiry of 180 days the accused forwarded to the complainant two cheques, one for Rs. (c) On May 2, 1997 the accused refunded a sum of Rs. 10 lakhs out of the total amount of deposits and further assured that remaining amount would be paid within the due time. (d) After expiry of 180 days the accused forwarded to the complainant two cheques, one for Rs. 10 lakhs and another paying the interest charges for the relevant period, When the complainant being swayed by such payment of interest and part payment of principal by the accused, extended the period of said deposit for a further period of 90 days. (8). Again after 90 days the accused persons once again forwarded to the complainant a cheque paying the interest for the relevant period and requested the complainant to renew the said Inter Corporate Deposit for another period of 90 days on the self-same conditions, When the complainant renewed the said Inter Corporate Deposit for 91 days. (9). Subsequently, the said Inter Corporate Deposit was renewed from time to time till October 1, 1998. Thereafter, on February 1, 1999 a memorandum of understanding was executed between the complainant and the accused person wherein the accused undertake to pay the balance amount of Rs. 15 lakhs with interest by March 31, 1999 and further undertook in the event the accused failed to make the payment a flat owned by the accused situated at 36, Theatre Road, Calcutta be transferred to the complainant company. (10). Similarly the following facts have been clearly divulged from the face of the documents viz. various correspondence between the parties, which are filed along with the petition of complaint in the Court below. (i) Interests were regularly paid upto September 30, 1998. (ii) The accused person forwarded a pay order dated February 22, 2000 for Rs. 2.5 lakhs to the complainant towards the liquidation of the principal amount but the complainant by his Fax dated March 29, 2000 while acknowledging receipt of the said amount of Rs. 2.5 lakhs, claimed the said amount has been adjusted against the interest outstanding since October, 1998. (iii) Again by a cheque No, 021971 dated October 27, 2000 drawn on State Bank of India, Park Street, Calcutta the accused person paid a further sum of Rs. 1 lakh towards the liquidation of the principal amount but the complainant adjusted the same towards the interest. (11). (iii) Again by a cheque No, 021971 dated October 27, 2000 drawn on State Bank of India, Park Street, Calcutta the accused person paid a further sum of Rs. 1 lakh towards the liquidation of the principal amount but the complainant adjusted the same towards the interest. (11). Thus, it appears that the accused person has not only repaid a sum of Rs. 10 lakhs out of the said Inter Corporate Deposit of Rs. 25 lakhs but till April, 2000 the interests were also received by the complainant. In the instant case, not only 40% of the principal amount out of the total deposit has been refunded to the complainant but the complainant has also received quite a large amount of money as interest for two years from April, 1998 to April, 2000. It was the specific case of the complainant that he was swayed by the rate of interest offered by the accused person. Since for a considerable period the interest was duly paid and out of the total deposit a considerable portion has been refunded it cannot be said on the facts and circumstances of the case the complainant has been able to make out any case of initial deception which is one of the basic ingredients of the offence of cheating. In my opinion, after refund of Rs. 10 lakhs out of the total amount of Inter Corporate Deposit of Rs. 25 lakhs and receipt of interest by the complainant for two years no case of cheating can said to have been made out. On the face of the aforesaid allegation if at all there may be a case of failure to keep promise which at best tends to make out a case of civil dispute. The memorandum of understanding executed by and between the parties on February 1, 1999 is an undertaking given by the accused to liquidate the outstanding balance of pre-existing or an antecedent liability, in any event failure to act in terms of such undertaking to liquidate pre-existing or antecedent liability shall not give rise to any offence punishable under Section 420 of the Indian Penal Code. In my opinion, this is an attempt to give a purely civil dispute a shape of criminal offence. In my opinion, this is an attempt to give a purely civil dispute a shape of criminal offence. In this connection an observation made by the highest Court of the land at Paragraph 13 and 14 in the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., reported in (2007)1 C Cr LR (SC) 52 are quoted below: "While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. this Court observed: (SCC p. 643, para 8) "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or other wise to secure the ends of justice." (Para 13) "While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250, Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant, Be that as it may." (Para 14) (12). It is the allegation of the complainant that Inter Corporate Deposit of Rs. 25 lakhs was made on April 1, 1997 and the said amount of money was paid by two cheques, firstly, by a cheque of Rs. 5 lakhs dated October 3,1996 and thereafter by another cheque of Rs. 20 lakhs dated October 10,1996 both drawn on Standard Chattered Bank, N.S. Road Branch. Thus, both the cheques by which the payment towards the aforesaid Inter Corporate Deposit was made by the complainant being issued long before the alleged mis-representation following which such Inter Corporate Deposit was made in April, 1997 cannot be said to have been issued on the face of any representation made by the accused in April, 1997. (13). In my opinion, this is a clear instance where the complainant has made a deliberate attempt to degenerate the Court process into a weapon of harassment by converting a civil dispute into a criminal case to wreak vengeance on the accused. In the present case on the face of the allegations made in the First Information Report and whatever appears from the accompaniments thereof and from the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure no offence of cheating can be said to have been made out as against the present petitioner. Accordingly, the impugned charge-sheet is deserved to be quashed. (14). In the result this criminal revision succeeds and stands allowed. (15). Office is directed to communicate this order to the Court below and to send down the L.C.R. at once.