JUDGMENT : R.K. Bag, J. 1. The petitioner has preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure praying for quashing of the proceeding of Case No.C-10440 of 2012 under Sections 120B/406/420/471 of the Indian Penal Code pending before the court of learned Metropolitan Magistrate, 16th Court, Calcutta. The petitioner has also challenged the order dated March 18, 2013 passed by learned Metropolitan Magistrate, 16th Court, Calcutta, in the said case. 2. The opposite party – Srei Infrastructure Finance Ltd. (hereinafter referred to as the “complainant company”) filed a petition of complaint before the court of learned Chief Metropolitan Magistrate, Calcutta, against the petitioner – K.S. Oils Ltd. (hereinafter referred to as the “petitioner company”) and 11 others in order to prosecute them for the offence under Section 420/467/471/477/120B of the Indian Penal Code. Learned Chief Metropolitan Magistrate took cognizance of the offence and transferred the case to the learned Metropolitan Magistrate, 16th Court, Calcutta. On July 25, 2012, learned Metropolitan Magistrate examined the complaint under Section 200 of the Code of Criminal Procedure and called for report under Section 202 of the Code of Criminal Procedure from the Officer-in-Charge of Hare Street Police Station, Calcutta. On March 18, 2013 one Sub-Inspector of Police of Hare Street Police Station submitted a report under Section 202 of the Code of Criminal Procedure, which was considered by learned Magistrate for issuance of process against the petitioner company and other co-accused persons for the offence under Section 406/420/471/120B of the Indian Penal Code. The said order dated March 18, 2013 passed by learned Magistrate is under challenge in this revision. 3. The contents of the petition of complaint disclose that the petitioner company is the accused no.1 and the Managing Director of the said company is the accused no.2. The accused no.3 to 5 mentioned in the petition of complaint are the whole time Directors of the petitioner company and the accused no.6 to 11 are other Directors of the petitioner company. The accused no.12 being the Company Secretary of the petitioner company is also impleaded as an accused in the petition of complaint. The accused no.3 to 5 mentioned in the petition of complaint are the whole time Directors of the petitioner company and the accused no.6 to 11 are other Directors of the petitioner company. The accused no.12 being the Company Secretary of the petitioner company is also impleaded as an accused in the petition of complaint. It is alleged in the petition of complaint that the Company Secretary, one whole time Director and the Managing Director of the petitioner company approached the complainant company for providing loan of Rs.100 crores for financing infrastructure components in the plants at Guna, Ratlam and Kota in the State of Madya Pradesh and Rajasthan respectively. The averments made by the complainant company in the petition of complaint indicate that the petitioner company assured the complainant company that it would repay the loan within the stipulated period of time and they would hypothecate sufficient moveable assets including 92 wind turbines in the State of Madhya Pradesh, Rajasthan, Tamilnadu and Gujarat as security for due repayment of the loan. It is alleged that on the basis of the representations and assurances given on behalf of the petitioner company, the complainant company sanctioned financial assistance of Rs.100 crores in favour of the petitioner company for financing infrastructure components in its plants in the state of Madhya Pradesh and Rajasthan on August 16, 2010 vide reference no.Srei/Core/KSO/001. On August 23, 2010 the complainant company entered into an agreement with the petitioner company. It is alleged that the terms and conditions of the said loan agreement indicate inter alia that the petitioner company will create a charge on 92 wind turbines of the said company situated in the state of Madhya Pradesh, Rajasthan, Tamilnadu and Gujarat with minimum capacity of 78 M.W. for the said loan and the charge will be subservient to the other charges in favour of the existing lenders. On August 23, 2010 the petitioner company executed one deed of hypothecation in favour of the complainant company by creating charge of 92 wind turbines to secure due repayment of loan. On August 23, 2010 the petitioner company executed one deed of hypothecation in favour of the complainant company by creating charge of 92 wind turbines to secure due repayment of loan. It is further alleged in the petition of complaint that on August 23, 2010 the Company Secretary of the petitioner company forwarded one email to the complainant company attaching a scanned copy of the challan purportedly issued by the Registrar of Companies indicating the particulars of the charges created in favour of the complainant company by deed of hypothecation dated August 23, 2010. It is further alleged that the challan generated from the system on August 23, 2010 was valid for a period of seven days i.e. upto August 30, 2010. It is also alleged that the charge required to be registered in Form No.8 in the website of Ministry of Company Affairs was not done within August 30, 2010. 4. The averments made in the petition of complaint indicate that relying on the email signed by the Company Secretary of the petitioner company, the complainant company disbursed a sum of Rs.100 crores in favour of the petitioner company through RTGS in the bank account of the petitioner company maintained with Central Bank of India, Tilak Road, Datpura, Morena – 476 001. Since the petitioner company could not make repayment of the loan amount due to immense shortage of funds, the complainant company agreed with the petitioner company to restructure the period of repayment of the loan and thereby supplementary loan agreement was executed by and between the parties on September 2, 2011. It is alleged that the petitioner company intentionally deleted the security clause relating to 92 wind turbines in the hard copy of the agreement forwarded to the complainant company for obtaining signature. It is specifically alleged that the petitioner company never deposited Form-8 with the concerned authority for creating subservient charge over 92 wind turbines in favour of the complainant company for securing repayment of the loan. The specific averments made by the complainant company in the petition of complaint indicates that the petitioner company never intended to repay the loan to the complainant company. It is also alleged that the cheque issued by the petitioner company in favour of the complainant company in connection with the present transaction was dishonoured due to insufficiency of funds in the bank account of the petitioner company. It is also alleged that the cheque issued by the petitioner company in favour of the complainant company in connection with the present transaction was dishonoured due to insufficiency of funds in the bank account of the petitioner company. It is also specifically alleged that the petitioner company has not only cheated the complainant company from the very inception of the transaction, but also had the fraudulent intention to cause wrongful loss to the complainant company to the tune of Rs.100 crores. Accordingly, the complainant company filed the petition of complaint against the petitioner company and other co-accused persons before the court of learned Magistrate. 5. Mr. Sandipan Ganguly, learned counsel for the petitioner has referred to the challan (Annexure P-2 to the revisional application) and submitted that Rs.500 was paid through challan for registration of the charge created in favour of the complainant company. By producing the certified copy of Form-8 dated August 18, 2010, Mr. Ganguly contends that the charge was duly registered in the website of Registrar of Companies within the stipulated period of seven days i.e. on August 23, 2010, but the same was not registered by the Registrar of Companies till March 9, 2012 for the reasons not known to the complainant company. The specific submission of Mr. Ganguly is that the challan generated by payment of Rs.500/- for registration of the charge with the Registrar of Companies within a period of seven days from the date of generating the challan, was done on behalf of the petitioner company and as such the allegations made by the complainant company in this regard are contrary to facts. By referring to the documents filed by the petitioner company by way of supplementary affidavit, Mr. Ganguly contends that the petitioner company paid Rs.11,19,14,718/- during the period from September 14, 2010 to July 29, 2011 towards repayment of loan before filing of the petition of complaint by the complainant company. According to Mr. Ganguly, the petitioner company could not repay the loan due to huge loss in the business. He further submits that the complainant company has already instituted proceeding against the petitioner company for realization of Rs.100,25,20,548/- under Section 138 of the N.I. Act and the said proceeding being complaint case no.C-24470 of 2011 is pending for adjudication before the trial court. According to Mr. He further submits that the complainant company has already instituted proceeding against the petitioner company for realization of Rs.100,25,20,548/- under Section 138 of the N.I. Act and the said proceeding being complaint case no.C-24470 of 2011 is pending for adjudication before the trial court. According to Mr. Ganguly, the complainant company has started this present criminal proceeding against the petitioner company in a mala fide way and as such the proceeding is liable to be quashed. Mr. Ganguly has cited the decision of the Supreme Court in “Anita Malhotra v. Apparel Export Promotion Council & Anr.” reported in (2012) 1 SCC 520 and the decision of our High Court in “Saurabh Jhunjhunwala v. M/s. R. Piyarelall Iron & Steel Pvt. Ltd.” reported in (2015) 1 C Cr LR (Cal) 912 in support of his above contention. 6. Mr. Sanjoy Banerjee, learned counsel for the complainant company contends that the petitioner company has not only made any payment towards principal loan amount from the date of disbursement of the fund of Rs.100 crores till today. He further submits that the amount of money which was paid by the petitioner company in favour of the complainant company is meagre amount of interest accrued on the principal loan amount. By referring to the averments made in the petition of complaint, Mr. Banerjee has tried to impress upon the court that the petitioner company tried to delete the security clause relating to 92 wind turbines at the time of execution of supplementary loan agreement between the parties on September 2, 2011. According to Mr. Banerjee, the said conduct of the petitioner company coupled with the fact of non-payment of any amount towards principal loan advanced by the complainant company indicate that the intention of the petitioner company was to deceive the complainant company from the very inception of the transaction and as such a clear case of 420 is made out against the petitioner company. Mr. Banerjee has relied on the decision of the supreme Court in “Rajesh Bajaj v. State NCT of Delhi & Ors.” reported in (1999) 3 SCC 259 in support of his above contentions. 7. Mr. Banerjee has relied on the decision of the supreme Court in “Rajesh Bajaj v. State NCT of Delhi & Ors.” reported in (1999) 3 SCC 259 in support of his above contentions. 7. The criteria laid down by the Supreme Court for quashing of the criminal proceeding in paragraph 102 of “State of Haryana v. Bhajanlal” reported in 1992 SCC (Cri) 426 are as follows:- “102…….(1) Where the allegations made at the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made at the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the first information report do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made at the first information report or complaint are also absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8. By applying the test laid down by the Supreme Court in “State of Haryana v. Bhajajlal” (supra) in the facts of the present case, I would like to consider whether the contents of the petition of complaint disclose offences under Section 406/420/471/120B of the Indian Penal Code for which process is issued against the petitioner company and other co-accused persons. By following the said decision of the Supreme Court, I would also like to consider whether the complainant company has instituted the criminal proceeding against the petitioner company and other co-accused persons in a mala fide way. 9. On consideration of the averments made in the petition of complaint, I find that the complainant company disbursed the fund of Rs.100 crores in favour of the petitioner company through RTGS on the basis of email forwarded by the Company Secretary of the petitioner company on August 23, 2010. It is alleged in the petition of complaint that the process of creating charge by uploading Form-8 in the website of Ministry of Corporate Affairs was not done by the petitioner company within the stipulated period of seven days from the date of generating the challan and thereby the petitioner company has made false representation to the complainant company for disbursement of loan of Rs.100 crores. It appears from the copy of challan (Annexure P-2 to the revisional application) and copy of bank’s statement (Annexure P-3 to the revisional application) that Rs.500/- was deposited in the bank account on August 27, 2010 for generating the challan which would remain valid from August 23, 2010 to August 30, 2010. It appears from the certified copy of Form-8 dated August 23, 2010 that the charge created in favour of the complainant company was duly uploaded in the website for registration by the Registrar of Companies on August 23, 2010, but the same was not registered by the Registrar of Companies till March 9, 2012. It appears from the certified copy of Form-8 dated August 23, 2010 that the charge created in favour of the complainant company was duly uploaded in the website for registration by the Registrar of Companies on August 23, 2010, but the same was not registered by the Registrar of Companies till March 9, 2012. Since Form No.8 was duly filled up by the petitioner company within the stipulated period of seven days from the date of generating the challan and uploaded in the website for registration of the same by the Registrar of Companies, the petitioner company cannot be made liable for non-registration of the same by the Registrar of Companies till March 9, 2012. Accordingly, the allegation in this regard made by the complainant company in the petition of complaint are contrary to facts. 10. The averments made in the petition of complaint indicate that the period of repayment of loan was subsequently extended by executing supplementary loan agreement between the petitioner company and the complainant company on September 2, 2011 wherein the petitioner company deleted the security clause relating to 92 wind turbines which was detected by the complainant company at the time of signing of the hard copy of the loan agreement. Since fresh supplementary loan agreement was made by and between the parties and since a fresh deed of hypothecation in respect of 92 wind turbines was also executed, the allegation of deleting the security clause relating to 92 wind turbines cannot justify the allegation of mala fide intention of the petitioner company from the very inception of the transaction. 11. The specific allegation made by the complainant company in the petition of complaint is that the petitioner company did not make any repayment of the loan, which indicates that they had the intention to deceive the complainant company from the very inception of the transaction. The documents annexed to the supplementary affidavit of the petitioner company go to establish that the petitioner company paid at least Rs.11,19,14,718/- during the period from September 14, 2010 to July 29, 2011 towards interest accrued on the principal loan amount advanced by the complainant company. So, the argument advanced on behalf of the complainant company that the petitioner company has not made any payment towards loan has no merit. (iv)12. So, the argument advanced on behalf of the complainant company that the petitioner company has not made any payment towards loan has no merit. (iv)12. Now, I would like to discuss the cases cited on behalf of both the parties in support of their respective contentions. In “Anita Malhotra v. Apparel Export Promotion Council” reported in (2012) 1 SCC 520 the High Court refused to quash the criminal proceeding under Section 138 of the Negotiable Instruments Act on the ground that the appellant resigned from the post of Director of the company long before issuance of the cheque for whose dishonour the proceeding was initiated. By setting aside the order of the High Court and by quashing the criminal proceeding relying on Form 32 and the annual return submitted by the accused company, the Supreme Court held in paragraph 20 of the report as follows: “20 As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code.” By following this decision of the Supreme Court, I would like to rely on the copy of challan and the copy of statement of accounts of the bank and the certified copy of Form-8 produced on behalf of the petitioner company as these documents have a bearing on the matter and the said documents nullify the allegation made by the complainant company in the petition of complaint. 13. In “Saurabh Jhunjhunwala v. M/s. R. Piyarelall Iron & Steel Pvt. Ltd.” reported in (2015) 1 C Cr. 13. In “Saurabh Jhunjhunwala v. M/s. R. Piyarelall Iron & Steel Pvt. Ltd.” reported in (2015) 1 C Cr. LR (Cal) 912, learned single Judge of this Court dealt with the issue whether learned court below was justified to issue the process against the accused persons on the basis of the report submitted by the Sub-Inspector of Police in place of the Officer-in-Charge of the concerned police station under Section 202 of the Code of Criminal Procedure. It is relevant to quote some portions of paragraph 7 of the report, which are as follows:- “7…….As such, it has been well settled by more than one judgment of this Court that the person who was directed to make an investigation under Section 202, Cr.P.C. had no authority to delegate said power and that learned Magistrate cannot act upon said report of investigation under Section 202, Cr.P.C. filed by another person.” I find no justification to differ from the decision of learned single Judge. In the present case, learned Magistrate acted upon the report submitted by the Sub-Inspector of police under Section 202 of the Code of Criminal Procedure in lieu of report from the Officer-in-Charge of Hare Street Police Station and issued process against the petitioner company and other co-accused persons on March 18, 2013. Since learned Magistrate directed the Officer-in-Charge of Hare Street Police Station to submit the report under Section 202 of the Code of Criminal Procedure by an order dated July 25, 2012 and since the Officer-in-Charge of Hare Street Police Station did not submit the report in compliance with the direction given by the learned Magistrate, learned Magistrate cannot issue the process against the petitioners and other co-accused persons on March 18, 2013 by accepting the report submitted by the Sub-Inspector of Police of Hare Street Police Station under Section 202 of the Code of Criminal Procedure. Accordingly, learned Magistrate acted in excess of jurisdiction conferred on him by law by passing the order on March 18, 2013 which is liable to be set aside. 14. Accordingly, learned Magistrate acted in excess of jurisdiction conferred on him by law by passing the order on March 18, 2013 which is liable to be set aside. 14. In “Rajesh Bajaj v. State NCT of Delhi” reported in (1999)3 SCC 259 the Managing Director of M/s. Avren Junge Mode Gumbh Haus Der Model approached the complainant for purchase of readymade garments of various kinds and induced the complainant to believe that he would pay the price of the goods within 15 days from the date of receiving invoice of the goods which the complainant would dispatch to Germany. The complainant dispatched goods worth 4,46,597.25 D.M. (Deutsch Marks). The goods were released on receipt of 37 different invoices and were sold out, but only a sum of 1,15,194 D.M. was paid. In this report, the Supreme Court had set aside the order of High Court which quashed the criminal proceeding, because the contents of the complaint disclosed the offence of cheating. The facts of the reported case are clearly distinguishable from the facts of the present case where the loan was advanced on the basis of agreement between the parties after creating charge on the property of the petitioner company and part payment of loan was made. So, the ratio of the case of “Rajesh Bajaj v. State NCT of Delhi” (supra) cannot be made applicable in the facts of the present case. 15. This is a case where the allegation is made that the petitioner company cheated the complainant company and as such the petitioner company is liable to be prosecuted for the offence punishable under Section 420 of the Indian Penal Code. The main thrust of argument on behalf of the petitioner company is that the transaction between the petitioner company and the complainant company is mere breach of contract and no offence of cheating is made out from the averments made in the petition of complaint. In “Hriday Ranjan Prasad Verma v. State of Bihar” reported in 2000 SCC (Cri) 786, the Supreme Court has distinguished between mere breach of contract and the offence of cheating. It is held by the Supreme Court in this report that the distinction between the mere breach of contract and the offence of cheating is a fine one. In “Hriday Ranjan Prasad Verma v. State of Bihar” reported in 2000 SCC (Cri) 786, the Supreme Court has distinguished between mere breach of contract and the offence of cheating. It is held by the Supreme Court in this report that the distinction between the mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by the subsequent conduct, but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, i.e. the time when the offence is said to have been committed. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e. when he made the promise, cannot be presumed. 16. In the instant case, the intention of the petitioner company to deceive the complainant company at the commencement of the transaction can not be inferred from the subsequent conduct of the petitioner company. The development of the facts subsequent to disbursement of loan cannot be construed to infer that the petitioner company had the fraudulent or dishonest intention right from the beginning of the transaction, when the petitioner company has repaid some amount of loan. I have already observed that the petitioner company has repaid Rs.11,19,14,718/- during the period from September 14, 2010 to July 29, 2011 in favour of the complainant company and as such, I cannot persuade myself to hold that the petitioner company had the intention to deceive the complainant company from the very commencement of the transaction. Moreover, the complainant company has already initiated criminal proceeding against the petitioner company under Section 138 of the Negotiable Instrument Act for dishonour of cheque of Rs.100,25,20,548/- and the said criminal proceeding being Complaint Case No.C-2344 of 2011 is pending before the court of learned Metropolitan Magistrate, 12th Court, Calcutta for adjudication. The upshot of my entire above observation is that the transaction between the petitioner company and the complainant company is mere breach of contract. 17. The upshot of my entire above observation is that the transaction between the petitioner company and the complainant company is mere breach of contract. 17. On consideration of the averments made in the petition of complaint, I cannot persuade myself to hold that the contents of the petition of complaint disclose any offence punishable under Section 406, 471, 120B of the Indian Penal Code. In view of the reasons disclosed by me hereinabove, I have no hesitation to hold that the complainant company has failed to make out a case to prosecute the petitioner company for an offence punishable under Section 420 of the Indian Penal Code. By applying the test laid down by the Supreme Court in “State of Haryana v. Bhajajlal” (supra), I am inclined to quash the criminal proceeding initiated by the complainant company against the petitioner company and other co-accused persons. 18. As a result, the complaint Case No.C-10440 of 2012 under Sections 120B/406/420/471 of the Indian Penal Code pending before the court of learned Metropolitan Magistrate, 16th Court, Calcutta, is quashed. The order dated March 18, 2013 passed by learned Metropolitan Magistrate, 16th Court, Calcutta, in connection with Case No.C-10440 of 2012 is also set aside. The criminal revision and both the CRANs are disposed of. Let a copy of this judgment and order be sent down to the learned Court below immediately for favour of information and necessary action. Urgent photostat certified copy of this judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.