Judgment 1. Petitioners have sought the quashing of complaint Annexure P-1 against them under Ss. 420/406 of the Indian Penal Code filed by the respondent M/s. Swastika Agro Industries Corporation, Jalandhar. They have also sought the quashing of the summoning order Annexure P-2. Calling upon them to appear before the Court for trial under S. 420 of the Indian Penal Code. 2. Facts :M/s. Swastika Agro Industries Corporation, Jalandhar filed complaint under Ss. 420/406 of the Indian Penal Code against M/s. Sneh Steel Industries though its proprietor Sneh Lata wife of Girdhari Lal on the allegations that the complainant is dealing in the business of supply of GP Sheets/coils and during the course of business dealings, complainant supplied to M/s Sneh Steel Industries accused No. 1 on the request of Sneh Lata some goods. Sneh Lata-accused No. 2 is the sole proprietor of accused No. 1 and is liable for liabilities and payments and the acts of accused No. 1. Complainant supplied goods to the accused vide different bills. Accused had been making the payment of goods supplied to them by cash/draft on different intervals. Complainant supplied goods to accused No. 1 and accused No. 2 being proprietor of accused No. 1 issued cheque dated 26-2-1996 bearing No. 702461 for Rs. 50,000/- in favour of the complainant for the goods supplied to the accused. Complainant took the cheque to the bank for being encashed as the complainant had been assured by the accused that the cheque would be encashed by their banker on presentation and the complainant will receive the payment for the goods supplied. Goods were supplied to the accused for consideration and the payment was made by cheque by the accused. It is further alleged in the complaint that the complainant deposited the said cheque with the banker of the accused. On presentation, cheque was not honoured and it was returned with the endorsement "insufficient funds". It is alleged in the complaint that the complainant had accepted the cheque from the accused on the assurance given by the accused that it will be honoured on presentation and the goods were supplied to the accused because the cheque was given as consideration for the goods supplied to the accused. It is alleged in the complaint that the complainant had accepted the cheque from the accused on the assurance given by the accused that it will be honoured on presentation and the goods were supplied to the accused because the cheque was given as consideration for the goods supplied to the accused. Accused have cheated the complainant by giving false assurance at the time of issuing cheque that the cheque will be honoured on presentationand received the goods with dishonest intention of not making the payment. Accused have thus committed criminal breach of trust, apart from committing offence of cheating. 3. Learned counsel for the petitioners submitted that no case falling within the ambit of S. 406 or 420 of the Indian Penal Code was made out against the accused as there was no dishonest intention on the part of the accused at the time when the goods were supplied to them by the complainant. It was submitted that there had been business dealing between the complainant and the accused, during the course of which complainant had been supplying goods to the accused and the accused had been making payments by cash/draft. It was submitted that the complainant supplied the goods to the accused and Sneh Lata accused gave cheque to the complainant dated 26-2-1996 to the tune of Rs. 50,000/- in lieu of the price of the goods supplied. It was submitted that so that the offence under S. 420, IPC was made out against the accused, it was necessary to show that the dishonest intention was present in the mind of the accused at the time when the transaction took place. It was submitted that it was the duty of the accused to show that accused induced the complainant to part with the goods and the complainant parted with the goods, when there was no intention on the part of the accused to make payment but the intention was only to wrest the goods from the complainant by inducing him into the false belief that the payment would be made to him. It was submitted that both are engaged in business. Complaiant had been supplying goods to the accused vide different bills and the accused had been making payments of the bills of the goods supplied on different intervals. It was submitted that both are engaged in business. Complaiant had been supplying goods to the accused vide different bills and the accused had been making payments of the bills of the goods supplied on different intervals. It was submitted that it was a simple transaction between the two concerns which gave rise only to civil liability. 4. It was submitted by the learned counsel for the petitioner that no offence could be said to have been made out against them under S. 420/406, IPC in view of the allegations set out in the complaint which have been reproduced above. It was submitted that it was a simple business transaction between M/s. Swastika Agro Industrial Corporation, G.T. Road, Near King Hotel, Jalandhar and M/s. Sneh Industries, Inside Lohgarh Gate, Katra Moti Ram, Amritsar, M/s. Swastika Agro Industrial Corporation had been supplying goods to the accused vide different bills and the accused had been making payments for the goods either by cash or draft. It was submitted that this time also the goods were supplied by the respondent/complainant to the petitioner accused and in lieu of the price of the goods, the petitioner accused gave cheque to the respondent comlainant for Rs. 50,000/-. It was submitted that if on presentation, the cheque was dishonoured the respondent complainants remedy was to file complaint against the accused petitioner under S. 138 of the Negotiable Instruments Act. It was submitted that there was no entrustment of the goods to the petitioner accused by the respondent complainant. It was sale of the goods. It was submitted that there was no cheating on the part of the petitioner accused committed upon the respondent complaint. There was no mal-intention as there was no allegation in the complaint that when the goods were supplied to the accused by the complainant, the intention of the accused was to cheat the complainant of the goods and payment through cheque was only a camouflage. There was no mal-intention as there was no allegation in the complaint that when the goods were supplied to the accused by the complainant, the intention of the accused was to cheat the complainant of the goods and payment through cheque was only a camouflage. Section 405, IPC defines criminal breach of trust as follows :- "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". 5. It is thus clear that there was no entrustment of the goods by the complainant to the accused. As such no criminal breach of trust was committed. Section 415, IPC defines cheating as follows :- "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and whichact or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." 6. Dishonest intention is required to be present at the time when transaction takes place. Section 420, IPC would be made out only if the allegation is that the complainant was induced into delivering the goods to the accused on the accused representing that the cheque will be cashed on presentation, when the intention was not to make any payment at all. In G. Sagar Suri V/s. State of U. P., 2000 1 JT (SC) 360 : (2000 Cri L LJ 824) it was laid down that jurisdiction under S. 482 of the Code of Criminal Procedure has to be exercised with a great care. In exercise of this jurisdiction, High Court is not to examine the matter superficially. It is to be seen if a matter which is essentially of civil nature has been given a cloak of criminal offence. In exercise of this jurisdiction, High Court is not to examine the matter superficially. It is to be seen if a matter which is essentially of 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. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no allegation of any corrupt practice by any of the accused as if they duped finance company in parting with the amount of Rs. 50,000,00/-. As normally understood business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. In that case, it is essentially a commercial transaction. There is no occasion for the complainant to prosecute the appellants under S. 406/420, IPC and in his doing so, it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed. 7. Section 138, Negotiable Instruments Act reads as follows :- "138. Dishonour of cheque for insufficiency, etc. of funds in the account :- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided xxx xxx xxx 8 It was submitted by the learned counsel for the petitioner that if any offence at all was disclosed that was disclosed under S. 138 of the Negotiable Instruments Act and no offence was disclosed under S. 406/420, IPC. It was further submitted by the learned counsel that as a matter of fact the cheque in question was given as advance for the supply of goods to the respondent complainant but the goods were never supplied by the complainant. Cheque was lying in trust with the accused. It was submitted that the complainant could have dominion over that cheque if the goods had been supplied to the petitioner in lieu of that cheque. 9. Learned counel for the respondent, on the other hand, submitted that there was no reason to quash the complaint in the exercise of powers vesting in this Court under S. 482, Cr. P.C. It was submitted that the powers vesting in this Court under S. 482, Cr. P.C. should be exercised very sparingly as for instance criminal prosecution should be quashed when no criminal offence is made out and criminal prosecution is an abuse of the process of the Court intended to be used as a short cut to have remedy. It was submitted that if an action gives rise to civil proceedings as well as criminal proceedings, both proceedings can be resorted to. It was submitted that it was a blatant criminal act on the part of the accused that she got the goods and in lieu thereof she gave cheque which was never honoured. In support of this submission, he drew my attention Javerchand Chawla V/s. State of Andhra Pradesh to 2001 (1) Rec Cri R 270 : (2000 Cri LJ 3753) where it was held that where accused got loan on false representation to the complainant that he was owner of the shop which he was not and the cheques issued by the accused were also bounced, offence of cheating was made out. He drew my attention to Joseph V/s. Philip Joseph 2000 (1) Rec Cri R 132 (Kerala) where it was heldthat where the cheque was issued by the drawer from the account which was closed in the year 1990 when the account had been closed by him in 1987 and the cheque was dishonoured no offence under S. 138 of the Negotiable Instruments Act was made out. Offence would come within the purview of S. 420, IPC. Offence would come within the purview of S. 420, IPC. He drew my attention to OPTS Marketing Pvt. Ltd. V/s. State of A.P., 2000 2 RecCri R 499 at page 507 para 29 : (2001 Cri LJ 1489) which lays down that : "(ii) Even after the introduction of S. 138, Negotiable Instruments Act, prosecution under S. 420, IPC is maintainable in case of dishonour of cheques or post-dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under S. 420, IPC for dishonour of cheques or post-dated cheques cannot be quashed under S. 482, Cr. P.C., if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured." 10. In this case even at the cost of repetition, I should say that it was a business dealing between two business concerns between whom there had been business dealings earlier also and no dispute arose, criminal prosecution under Ss. 406, 420, IPC by the respondent complainant is abuse of the process of law. So, this Crl. Misc. Petition is allowed. Complaint Annexure P-1 is quashed, so also the order Annexure P-2 whereby Judicial Magistrate First Class, Jalandhar has summoned the accused for trial under S. 420, IPC. Every other proceeding taken in complaint Annexure P-1 is quashed.