Judgment & Order (Cav):

1. Heard Mr. A. Kabra, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Addl. Public Prosecutor, Assam appearing for the State respondent No.1 and Mr. K. Jain, learned counsel appearing for the respondent No.2.

2. This is an application under Section 482 of the Cr.P.C., praying for quashing of the impugned Criminal Complaint/Proceeding in Case No. 47C/2023 and pending in the Court of learned Judicial Magistrate First Class, Kamrup (M) at Guwahati, wherein cognizance of the offence under Sections 403/406/420/503 of the IPC was taken against the present petitioner.

3. In brief the case of the petitioner is that the Respondent No.2 filed a complaint before the learned Chief Judicial Magistrate, Kamrup (Metro) at Guwahati, which was registered as C.R. Case No.47/2023, by arraying (1) Sri Neeraj Verma (present petitioner) and (2) M/s. Royal International as accused alleging inter-alia that the Respondent No.2, was in need of 3 ply face masks in February, 2020 and accordingly placed an order over telephone on 05.02.2020, to supply 2,00,000 (two lakh) pieces of 3 ply face mask @ Rs.2.20 per piece, which the petitioner assured to complete the supply order within 10 days and requested the Respondent No.2 to pay some advance. On the request of the Respondent No.2, the petitioner sent a proforma invoice of Rs.49,480/- (Rupees Forty Nine Thousand Eight Hundred and Forty) only through whatsApp against his ready stock for dispatch and also asked the Respondent No.2 to immediately make payment of Rs.1,00,000/- (Rupees One Lakh) only stating that as soon as the payment is made, the first batch of goods shall be immediately sent to the Respondent No.2. Thereafter, the Respondent No.2 transferred/ deposited Rs.1,00,000/- (Rupees One Lakh) only in the petitioner's bank account through NEFT, in favour of M/s. Royal International Jalandhar, vide Cheque No.073396 dated 05.02.2020. But in spite of receiving the advance payment of Rs.1,00,000/- only, the petitioner did not send any goods to the Respondent No.2 and started ignoring the Respondent No.2 and the petitioner could not be contacted and his whereabouts also could not be found.

4. Consequently, the Respondent No.2 sent his manager to Jalandhar, who met the petitioner there and the petitioner handed over him one tax invoice dated 11.02.2020, assuring to send the goods/masks immediately. The petitioner also handed one letter to the Respondent No.2, assuring supply the entire two lakh masks immediately or in failure to do so, to compensate the Respondent No.2 adequately. When the petitioner again failed to keep his promise, the Respondent No.2 sent an email to the petitioner on 22.02.2020, to send the ordered mask before 25.02.2020 or to treat the order as cancelled but the petitioner neither sent the marks nor the advance amount was returned. On several occasions, the Respondent No.2 requested the petitioner through sms and phone calls, to refund the advance money with interest till date, and also to compensate the loss suffered by the Respondent No.2 but the petitioner was avoiding/ neglecting the Respondent No.2 and also threatened to face dire consequences if he tried to contact the petitioner. The Respondent No.2 had also issued two legal notices to the petitioner through his Advocate, on 28.12.2021 and on 02.08.2022 as "Advocate's Final Reminder Notice" thereby providing a last chance to petitioner to refund and compensate the Respondent No.2. But there was no reply/communication/response from the petitioner nor he supplied the goods or returned the advance amount.

5. The aforesaid case i.e. C.R. Case No. 47/2023 was transferred to the Court of learned Judicial Magistrate First Class, Kamrup (Metro), Guwahati for disposal. The learned trial court below examined the respondent No.2 under Section 200 of the Cr.P.C. on 10.04.2023 and witness Ranjan Rajkhuwa on 28.04.2023 as CW2 under section 202 of the Cr.P.C. and being satisfied, on 28.04.2023 took cognizance of the case against the petitioner under Sections 403/406/420/503 of the IPC and 08.04.2024 was for necessary order and the process in respect of the aforesaid complaint case was sent to the petitioner and on receipt of the process, the petitioner entered his appearance before the learned Trial Court below.

6. The respondent No.2 has also filed one Money Suit for realization of money, declaration that the petitioner has committed breach of contract and for damages and compensation on 14.02.2023, arraying the present petitioner as defendant, which was registered as Money Suit No.25/2023, which is pending for disposal in the Court of learned Civil Judge (Sr. Div.), Kamrup (M) at Guwahati.

7. Mr. A. Kabra, the learned counsel for the petitioner submitted that the respondent No.2, in order to harass pressurize the present petitioner and to take unlawful advantages for his illegal gain had filed the aforesaid complaint case by suppressing material facts and also the fact that the respondent No.2 has also filed a Money Suit as stated above. Mr. Kabra further submitted that there was no agreement between the petitioner and the respondent No.2 to supply two lakh pieces of 3 ply face mask and that there were mere discussions between them for supply of the masks. The learned counsel for the petitioner further stated that as per preliminary discussion between them, the petitioner had sent 10,000 pieces of face mask to the respondent No.2 at Guwahati against the invoice No.294 through VRL Logistics Ltd., which was booked on 11.02.2020 from Vadodara Shanti Makarpura to Guwahati by the Consignor Engineering to the Consignee - Royal International, against Lr. No.1025936836, but the respondent did not claim the delivery of the consignment and upon not claiming the aforesaid consignment for a long period of time, the said VRL Logistics Ltd. had even issued an Auction Notice dated 25.01.2021, as final notice thereby asking the petitioner to arrange the delivery of the said consignment or to get it rebooked within seven days and to pay the freight and storage and other charges to the tune of Rs.8,793/- (Rupees Eight Thousand Seven Hundred and Ninety Three) only excluding fresh rebooking charges failing which the consignment would be disposed to recover the freight and storage charges. The learned counsel for the petitioner stated that after knowing about the aforesaid Auction Notice, the petitioner again contacted the respondent no.2 to take delivery of the aforesaid consignment, however, the respondent did not pay any heed to his request.

8. It is the pleaded case of the petitioner that, there is no any specific allegations against the petitioner but the learned trial court below mechanically and by misunderstanding the provisions of law and its true spirit, took cognizance against the petitioner for the offence punishable under Sections 403/406/420/503 of the IPC, which is bad in law, which is an abuse of the process of law and the case is purely a civil dispute, which was given a criminal colour. At best, the dispute between the parties may be merely termed as breach of contract. There has been attempt to stretch contours of a civil dispute and thereby essentially impart a criminal colour to it. The learned counsel for the petitioner further submitted that the Hon'ble Apex Court, in innumerable instances has expressed its disapproval for imparting criminal colour to a civil dispute, which is made by the litigants merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute and such exercise is nothing but abuse of the process of law, which must be discouraged in its entirety. The learned counsel further submitted 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.

9. It is contended by the learned counsel for the petitioner that in the complaint filed by the respondent, the culpable intention of the petitioner is missing but the learned trial court below overlooked the law laid by the Hon'ble Apex Court and mechanically took cognizance of the offence which is liable to be set aside and quashed. He further submitted that while taking cognizance of an offence, the learned Trial Court must ensure that criminal court should not be used as an instrument of harassment or for seeking private vendetta, with ulterior motive to pressurize the other party and in the instant case, it is apparent that the complaint was lodged at a very belated stage as the entire transaction took place around February 2020 and the complaint has been filed only in February, 2023, i.e., after a delay of three years, with the intention to cause harassment to the present petitioner but there is no prima facie material to constitute an offence punishable under Section 503 of the IPC, 1860. The learned counsel for the petitioner further submitted that Sections 406 & 420 of the IPC, a person cannot be held liable under both the offences together but in spite of the same, the learned Magistrate mechanically took cognizance against the petitioner under both Sections 406 & 420 of the IPC. Being aggrieved and dissatisfied with the drawing up of the proceeding against the present petitioner in the instant case i.e. C.R. Case No.47/2023, the petitioner has preferred the instant petition.

10. The learned counsel for the petitioner further submitted that the allegation in the complaint do not constitute any offence, as alleged and that even if the allegations are assumed to constitute an offence, the evidence adduced along with the complaint clearly or manifestly fails to prove the offences against the petitioner and there is no material to indicate that the petitioner had any malafide or dishonest intention against the respondent No.2. As the case is purely civil dispute between the parties for which appropriate remedy is available in the Civil Court by filing a civil suit and the respondent No.2 has already filed one Money Suit on 14.02.2023, by arraying the petitioner as defendant and is pending for disposal before the Court of learned Civil Judge (Sr. Div.) cum Asstt. Sessions Judge No. 2, Kamrup Metro, Guwahati, so allowing the proceedings in C.R. Case No.47/2023 to continue against the petitioner would amount to an abuse of the process of law and to prevent the same it is just and expedient to quash the same.

11. It is also submitted by the learned counsel for the petitioner that they have already supplied the goods but the respondent did not receive the same even after issuance of notice and without receiving the goods which have been supplied by the petitioner, the FIR has been lodged with some false and concocted allegations.

12. In support of his submission, Mr. A. Kabra, the learned counsel for the petitioner relied upon the following decisions:

                   (i) In N. Raghavender vs. State of Andhra Pradesh, CBI, reported in 2021 0 Supreme (SC) 814, in para 43 & 48, the Hon’ble Supreme Court held that:

                   43. It ought to be noted that the crucial word used in Section 405 IPC is ‘dishonestly’ and therefore, it pre-supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is ‘mis-appropriates’ which means improperly setting apart for ones use and to the exclusion of the owner.

                   48. It is equally well-settled that the phrase ‘dishonestly’ emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mens rea on his part. Unless the complaint showed that the accused had dishonest or fraudulent intention ‘at the time the complainant parted with the monies’, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract.

                   (ii) In Sarabjit Kaur vs. State of Punjab and another, reported in 2023 0 Supreme (SC) 517, in para 13, the Hon’ble Supreme Court held that:

                   13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by the respondent No.2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court.

                   (iii) In WYETH Limited and others vs. State of Bihar and another, reported in 2022 LiveLaw (SC) 721, in para 14 & 18, the Hon’ble Supreme Court held that:

                   14. A careful reading of the complaint, the gist of which we have extracted above would show that none of the ingredients of any of the offences complained against the appellants are made out. Even if all the averments contained in the complaint are taken to be true, they do not make out any of the offences alleged against the appellants. Therefore, we do not know how an FIR was registered and a chargesheet was also filed.

                   18. It is too late in the day to seek support from any precedents, for the proposition that if no offence is made out by a careful reading of the complaint, the complaint deserves to be quashed.

                   (iv) In Sachin Garg vs. State of Uttar Pradesh and another, reported in 2024 0 Supreme (SC) 88, in para 15, the Hon’ble Supreme Court has held that:

                   15. In the case of Binod Kumar and Ors. -vs- State of Bihar and Another [(2014) 10 SCC 663], a coordinate Bench of this Court dealt with a criminal complaint arising out of retention of bill amount in course of commercial transaction. The Court found essential ingredients of criminal breach of trust or dishonest intention of inducement, which formed the foundation of the complaint were missing. The High Court’s judgment rejecting the plea for quashing the criminal proceeding was set aside by this Court. The reasoning for quashing the criminal proceeding would be revealed from paragraphs 18 and 19 of the Report, which reads:-

                   “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.

                   19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed.”

                   (v) In Prachi Bread Bakers Pvt. Ltd. and another vs. Shree Maa Enterprise and another, reported in 2008 (2) GLT 356, a coordinate Bench of our High Court, in para 14 has held that:

                   “14. While sending those bakery items against payment, those items were found damaged for which complainant/opposite parties, the consignee agent lodged claim for refund of the money amounting to Rs. 3,45,000 to the petitioner-company, but the petitioner-company despite repeated requests/demands failed to attend it and ultimately refused to make payment, which had been received by it against despatch of consignment of bakery items. It is found from the facts as claimed by the complainant/opposite parties that it was induced to enter into an agreement with the petitioners/accused cannot survive. From the reading of the facts it is also found that there was no dishonest intention and inducement on the part of the petitioner-company while entering into an agreement with the complainant/opposite parties, the consignee agent. The facts in totality give a complete picture of civil liability and not a criminal liability, as alleged by the complainant respondents, the consignee agent.”

13. Mr. K. Jain, the learned counsel appearing for the respondent No.2/complainant submitted that the respondent No.2/complainant runs a proprietorship firm in the name and style of M/S Mahabir Pharma & Surgicals, having its office and place of business at S.C. Goswami Road, Panbazar, Guwahati and deals in the business of Medicines, Drugs and surgical products. On the other hand, the petitioner is the proprietor/owner of M/s Royal International which is a wholesale medicine dealer/distributor, having its office at 115- A, Waryana Industrial Complex, Kapurthala Road, Jalandhar. The respondent No.2 approached the petitioner, for supply of 2 Lakh 3 ply face mask and the petitioner also agreed to supply the same to the respondent No.2 @ Rs.2.20 per piece immediately. The petitioner then promised to complete the supply within 10 days and requested the respondent No.2 to send some advance and accordingly, the respondent No.2 sent a proforma invoice of Rs. 49,840/- only through WhatsApp against his ready stock for dispatch, stating that the goods were ready for dispatch and the proforma invoice was also raised and asked the respondent No.2 to immediately make a payment of Rs.1,00,000/- only as advance, further stating that as soon as the payment is made, the first batch of the goods shall be immediately sent to the respondent No.2. Accordingly, the respondent No.2 had transferred/ deposited Rs. 1,00,000/- (Rupees One Lakh) only in the defendant's bank A/c through NEFT vide UTR No. ORBCH20036054310, in ICICI Bank in favour of M/S Royal International Jalandhar which was paid vide cheque No. 073396 dated 05.02.2020, which was duly acknowledged by the defendant through whatsapp message.

14. It is further submitted by Mr. Jain, the learned counsel for the respondent No.2/complainant that the intention of the petitioner from the very inception of the agreement was to cheat the complainant and after supply of some amount of the face mask, they stopped providing the face mask as per the demand made by the respondent No.2 and in spite of giving assurance to supply two lakh ordered face mask after receiving the money, the petitioner did not make any response to several phone calls made by the respondent No.2 and thus they only deceive and cheated the respondent No.2 inducing him to send the advance amount of money and even after receiving the advance amount of money, the accused petitioner dishonestly disproportionate the money of the respondents and thus he cheated and also misappropriated the money which was received by him in terms of the agreement to supply the face mask.

15. Mr. Jain, the learned counsel for the respondent No.2/complainant further submitted that as per the annexure submitted by the petitioner in page 75 of the petition, it is seen that the consignor was the Shanti Engineering and the consignee was the Royal International, to whom the auction notice was issued. Thus, along with the auction notice, the present respondent No.2 is no way related nor they have received any kind of information or notice for receiving the supplied goods by the company of the petitioner. Mr. Jain further submitted that the accused petitioner had committed fraud and cheated the complainant by misrepresenting himself to be a genuine businessman and deceiving the complainant in paying the advance amount of money in the guise of supplying the said goods. The accused petitioner even issued fake/false invoices showing that he is going to deliver the goods but with dishonest intention, he issued those false and fake invoices and dishonestly misappropriated the entire money and thus he breached the trust of the complainant and cheated the complainant/ respondent No. 2, in the name of supplying the face mask, he issued some false invoices and after receiving the advance amount of money from the respondent No. 2. He never supplied the ordered face mask. The learned counsel for the respondent No.2 further submitted that it is a fact that they have also instituted a Money Suit for recovery of money but institution of the Civil Suit cannot bar a person from instituting a Criminal Case, when the complaint itself discloses a criminal offence. Merely because a complaint relates to a commercial transaction or breach of contract, for which the civil remedy is available cannot be the only ground for quashing a criminal petition, if prima facie there is material to proceed with a criminal proceeding.

16. In support of his submission, Mr. K. Jain, the learned counsel for the respondent No.2 relied upon the following decisions:

                   (i) Indian Oil Corporation vs. NEPC India Ltd. and others reported in (2006) AIR (SC) 2780 :

                   “9 (v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”

                   (ii) Sau. Kamalshivaji Pokarnekar vs. State of Maharashtra and others reported in (2019) AIR (SC) 847 (para 4, 5 & 9)

                   4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not (Sonu Gupta v. Deepak Gupta and Ors. 2015 (3) SCC 424).

                   5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.

                   9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.

17. Citing the above referred judgments, it is submitted Mr. K. Jain, the learned counsel for the respondent No.2 that it is not at all a fit case to quash the entire proceeding where the prima facie case has been established against the petitioner and thus the learned Trial Court below after examining the complainant as well as the witnesses, had took cognizance applying its judicial mind and hence, it is not at all a fit case to quash the criminal proceeding by invoking the power under Section 482 of the CrPC.

18. Hearing the submissions made by the learned counsel for both sides, it is seen that the criminal proceeding is instituted by the respondent No.2 with the allegation of misappropriation and criminal breach of trust and cheating that the petitioner induced the respondent No.2 to give Rs.1 lac for supply of face mask and in spite of receiving the advance money, he never made any contact with the respondent No.2 nor made any supply of face mask even after repeated request made by the respondent No.2. It is the case of the respondent No.2 that to induce the respondent No.2, the petitioner even produced some false tax invoices only with a view to cheat the respondent No.2 and to misappropriate the money which has been received by the company of the petitioner with an assurance of supply of the face mask.

19. On the other hand, it is the case of the petitioner that he never cheated the respondent No.2 and as per the agreement, some supply of face mask was already made and subsequently also, the consignment of face mask was ready but in spite of repeated request, the respondent No.2 did not receive the consignment, for which it had to be put for auction sale. Further, it is the case of the petitioner that the case is based on commercial transaction, wherein the respondent No.2 can get the proper relief from the Civil Court/Forum and in that context, they have already instituted a Money Suit for recovery of the money. But only to give harassment to the petitioner, the respondent No.2 had instituted the present case by giving a criminal colour to a civil dispute.

20. On perusal of the record also, it reveals that it was an agreement for commercial transaction wherein the petitioner assured for supply of some face mask and in that context, some supply of face mask was earlier made to the respondent No.2. But subsequently, another demand was made by the respondent No.2 and it is an admitted fact that the money has already been received by the petitioner for supply of the face mask. But it is the allegation that the respondent No.2 never received those face mask which was assured to be supplied with by the petitioner.

21. Thus, it is not a disputed fact that there was a commercial transaction or commercial agreement between the parties but the subsequent conduct of the accused petitioner, as per the allegation of the respondent No.2, it is seen that with some false assurance and promises and by producing some fake and false tax invoices, the accused petitioner had induced the respondent No.2 to deliver the money to the petitioner but in spite of receiving the money, he never supplied with the product by the accused petitioner. However, it is the case of the petitioner that as per the agreement, the consignment was ready and it was delivered to the respondent No.2 but he never received the consignment and for which it had to be returned/auctioned by the consignor. But from the auction notice, as produced by the petitioner, it is seen that the consignor is one Shanti Engineering and the consignee is Royal International i.e. the company of the petitioner to whom the auction notice was issued. Thus, there are no documents to held that the petitioner had made the request to the respondent No.2 to receive the delivery of the face mask as per the agreement.

22. It is a settled law that in such kind of commercial transaction or contractual disputes are to be considered as Civil Wrong for which one can approach the Civil Forum for appropriate relief. But that cannot be the only cause for quashing the criminal proceeding, if prima facie there found materials to proceed with a criminal proceeding in spite of the fact that there was a commercial transaction.

23. Here in the instant case also it is seen that the dispute is basically a commercial dispute wherein the allegation of non-supply of face mask was brought. But from the subsequent conduct of the petitioner as well as from the other materials brought by the respondent No.2, it is seen that they could being prima facie materials to proceed with a criminal case against the present petitioner.

24. As relied by Mr. Jain, the learned counsel for the respondent No.2, the Hon’ble Apex Court had expressed the view that availability of a civil remedy cannot by itself a ground to quash the criminal proceeding and it is to be seen whether the allegation in the complaint discloses a criminal offence or not. More so, a criminal proceeding can be quashed only in those cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive and if the allegation does not constitute a criminal offence, the entire criminal proceeding can be set aside on that count.

25. The Hon’ble Apex Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, observed that:

                   “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

                   (1) Where the allegations made in 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 in 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 uncontroverted 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 FIR 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 in the FIR or complaint are so 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 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

26. In the instant case also, from the contends made in the complaint it cannot be held that prima facie there is no case against the petitioner to proceed in a criminal proceeding. Further, it is seen that the learned Trial Court below took cognizance of the offence on perusal of the complaint as well as on examining the complainant and other witnesses under Section 202 of the CrPC and after finding a prima facie case against the accused petitioner.

27. Coming to the issue raised by the petitioner that one person cannot face such criminal proceeding under Section 406 and 420 of the IPC, as the criminal breach of trust and cheating cannot come together. “There is distinction between the criminal breach of trust and cheating. For cheating, the criminal intention is necessary at the time of making a false or misleading representation i.e. since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same, whereas in the case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both offences cannot exist simultaneously” [View expressed by the Hon’ble Apex Court in Delhi Race Club (1940) Limited and others vs. State of Uttar Pradesh & Another, reported in (2024) 10 SCC 690].

28. But the present case is at the very initial stage wherein only cognizance has been taken against the petitioner but charges are yet to be framed as well as the trial is yet to be commenced. Thus, the petitioner will also get ample opportunity to pray for his discharge. At this stage, it cannot be held that the charges will be framed against the present accused petitioner by the learned Trial Court below under Section 406 and 420 of the IPC and after hearing both sides on consideration of charge, the learned Trial Court below is at the liberty to frame charge under which the case is established against the petitioner. But at the time of taking cognizance, it is not necessary for the Magistrate to go for the entire evidence on record or to brush out the statement made by the witnesses at the time of inquiry. Cognizance can be taken if prima facie there found materials against the accused person.

29. The Hon’ble Apex Court in Special Leave Petition (Crl) No. 3662/2023 Supriya Jain v. State of Haryana & Anr. has held as under:-

                   “17. This is a case where the charges have been framed and the accused are awaiting trial. Having regard to the totality of the facts and circumstances, noticed above, we are of the considered opinion that the investigation and the follow-up steps are not so patently and unobtrusively defective or erroneous (except to the extent we propose to mention before concluding our judgment) that allowing the trial to progress might cause a miscarriage of justice. This is also not an appropriate stage to delve deep into the records. It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under section 397, Cr. PC or section 482, Cr. PC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarized by this Court succinctly. In Amit Kapoor vs. Ramesh Chandra1, this Court laid down the following guiding principles:

                   “27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

                   27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

                   27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

                   27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

                   27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

                   27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

                   27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

                   27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

                   27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

                   27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

                   27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

                   27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

                   27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

                   27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

                   27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

                   ***

                   27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

30. So considering all these aspects of the case, the materials available in the case record and the statement made in the complaint, this Court is of the opinion that it is not at all a fit case to set aside and quashing of the impugned Criminal Complaint/Proceeding in Case No. 47C/2023, pending in the Court of learned Judicial Magistrate First Class, Kamrup (M) at Guwahati, wherein cognizance has been taken under Sections 403/406/420/503 of the IPC against the present petitioner along with consequential proceeding.

31. Accordingly, this criminal petition being devoid of any merit stands dismissed.