JUDGMENT : R.K. Patra, J. - The petitioners have filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as' the Code') challenging the order of the learned Magistrate taking cognizance against the petitioners u/s 420 of the Indian Penal Code. 2. Opposite party as the proprietor of M/s. Jagannath Distributors, Cuttack has filed the complaint bearing number I. C. C. 8 of 1938 in the Court of the Sub-divisional Judicial Magistrate, Sadar, Cuttack Tgainst the petitioners and the Manager of Platinum Road Link alleging that they have committed offences Under Sections 420/418 and 109 of the Indian Penal Code. It has been stated in the complaint that petitioner No. 1, the local representative of petitioner No. 2, went to the shop of opposite party on 26-9-1987 and induced him to be the distributor on behalf of National Organic and Chemical Industries Limited (NOCIL) for Cuttack and Ganjam and on being so induced, opposite party placed order for supply of 100 litres of Rip Cod with NOCIL and paid Rs .11, 698/- as advance and Rs. 500/- as security. Thereafter, petitions: No. 1 sent a letter to the opposite party saying that the goods would come through Platinum Road Link, Cuttack and invoice No, 30859 dated 23-10-1987 was sent advising him to make immediate payment of the invoice amount of Rs. 35,210/-. The opposite party has further stated in the complaint that to avoid demurrage charge payable to the transport company, he paid the entire amount covered under the invoice through the State Bank of India, Kalyaninagar Branch, Cuttack on 15-11-1987 and went to the transport company to obtain the indented goods. At that time petitioner No. 1 arrived at the office of the transport company and offered the opposite party to deliver the goods in the company jeep at his shop. The opposite party has further stated that there was no delivery of the goods but he was later informed that on account of wrong despatch of goods, they have been sent back to Calcutta which would be delivered later. Alleging that non-delivery of goods amounts to cheating, he has filed the complaint. 3. The opposite party has further stated that there was no delivery of the goods but he was later informed that on account of wrong despatch of goods, they have been sent back to Calcutta which would be delivered later. Alleging that non-delivery of goods amounts to cheating, he has filed the complaint. 3. Shri Panda, learned counsel for the petitioners, contends that bare perusal of the complaint and the materials available on record would show that no case u/s 420 of the Indian Penal Code has been made out and in the absence of the element of dishonest inducement on the part of the petitioners, the learned Magistrate should not have taken cognizance u/s 420 of the Indian Penal Code. 4. The offence of cheating under .Section 420 of the Indian Penal Code has two main ingredients (1) deceit i. e. dishonest or fraudulent misrepresentation, and (2) inducement to a person to deliver property. In other words, a dishonest intention at the time the offence is said to have been committed is the essence of the offence in question. I have carefully perused the complaint and the statements recorded in the case which do not establish existence of intention on the part of the petitioners to deceive the opposite party. On the other hand, the petitioner No. 2, in his letter dated 3-12-1987 has informed the opp. party saying that the matter (non-delivery of the articles) was receiving very urgent attention at his end. The relevant portion of the said letter is extracted below ; "Dear Sirs, Wrong Despatch This has reference to your letter dated 20-11-1987 please note that above matter is receiving our urgent attention and you would bear from us soon. In the meantime we also acknowledge the receipt of your payment against Ripcord". The contents of the said letter show that there was wrong dispatch of the articles and the matter was being attended to urgently. The materials on record may make out a case of breach of contract but every breach of contract does not constitute an act of cheating -punishable u/s 420 of the Indian Penal Code. The non-delivery of articles by the petitioners may be a case in which they failed to fulfil the promise. The materials on record may make out a case of breach of contract but every breach of contract does not constitute an act of cheating -punishable u/s 420 of the Indian Penal Code. The non-delivery of articles by the petitioners may be a case in which they failed to fulfil the promise. But from mere non-fulfilment of promise by the petitioners their dishonest intention cannot be inferred, In my considered view, no case has been made out against the petitioners u/s 420 of the Indian Penal Code. 5. For the reasons indicated above, the impugned order by which the learned Magistrate has taken cognizanca cannot be sustained in law as it amounts to abuse of the process of the Court which is hereby quashed and the Criminal Misc. Case is allowed. Final Result : Allowed