ORDER 1. The petitioners have filed this petition under section 482 CrPC for quashing criminal complaint No. 1711/02 and issuance of process to the petitioners by the learned Judicial Magistrate First Class (Mr. D.N. Patil) Indore for the offence punishable under section 418 and 420 of the Indian Penal Code. 2. The factual matrix giving rise to the dispute between the parties are as follows. Respondent No.1 has filed criminal complaint against the petitioner and respondent No.2, alleging that respondent No.1-complainant is a Company incorporated under the Companies Act, 1956 whereas the respondent No.2 is a Company situated in Switzerland and deals with the business of export of zinc and other products. The petitioner No.1 Glencore India Pvt. Ltd. is an Indian Company which is an Indian counterpart of respondent No. 2-Glencore International AG Company and manages affairs in India. Petitioner No.2 Sudhir Sharma is a General Manager and petitioner No.3 Lalit Kumar is an Executive Director of petitioner No.1 Glencore India Pvt. Ltd. Petitioners No.2 and 3 are the in-charge of and responsible for petitioner No.1 and respondent No.2. 3. It is alleged in the complaint that respondent No. 1 Metalman Industries Ltd. had entered into contract No. 061-01-1088333-S dated 8.2.2001 at Indore for import of 240 metric tonnes of zinc metal. The zinc metal was to be sold by respondent No. 2 Glencore International AG. This material was to be of Iran origin and the quality was to be minimum 99.95% purity. According to the terms of contract, goods were to be delivered at the final destination at ICD Pithampur. However, when the goods, i.e., zinc metal reached India, the same was not as per the terms of the contract and instead of being of Iran origin, was of Chinese origin and the zinc metal instead of 99.95% purity was of 99.9%. The final destination was also changed and the goods were required to be accepted at Nava Sheva Port. Respondent No.1 informed petitioner-Company about breach of contract on which the petitioners, on behalf of respondent No. 2-Glencore International AG, by telefax dated 18.4.2001 requested that as the manifest had already been filed as Nava Sheva, it would be very difficult to change the same. Thus, they requested the complainant to take the delivery at Nava Sheva itself so that demurrage and detention charges could be reduced. Thus, they requested the complainant to take the delivery at Nava Sheva itself so that demurrage and detention charges could be reduced. The petitioners had promised on behalf of respondent No. 2 that actual demurrage and detention paid by Metalman for the delivery at Nava Sheva will be reimbursed. 4. For taking delivery, the complainant respondent No.1 was required to pay additional cost of about Rs. 6 lacs. It is further alleged in the complaint that by letter dated 21.4.2001, petitioner No.2 Sudhir Sharma confirmed on behalf of and under authority of respondent No.2 Glencore International AG and petitioner No. 1 Glencore India Pvt. Ltd. that container, demurrage detention and all other charges as would be incurred in taking delivery of the two consignment would be reimbursed by them. This was again confirmed by fax dated 1.5.2001 in which it was clearly stated that respondent No.1 Metalman Industries Ltd. through petitioners had agreed to reimburse the amount of actual demurrage of the detention charges incurred by respondent No. 1 Metalman Industries Ltd. for receiving the said goods. On the basis of assurances, respondent No. 1-complainant got letter of credit amended from the State Bank of Travancore and after paying extra charges of Rs. 6,08,403/-, took delivery of goods but as per promise, this amount was not reimbursed though he made number of reminders/letters dated 29.6.2001, 30.6.2001, 6.7.2001, 1.7.2001, 20.6.2001 and 13.8.2001. According to the -complainant-respondent No.1, petitioners and respondent No.2 with mala fide intention have not reimbursed the same amount and thereby cheated complainant-respondent No.1 and caused wrongful loss to him by false assurance of reimbursement. Therefore, they have committed offence punishable under sections 418, 420 and 120B, IPC. 5. On behalf of respondent No.1 Metalman Industries Ltd., statement of authorized signatory and attorney K.M. Biyani was recorded by learned trial Court under section 200, CrPC and the complaint was registered. Therefore, summons were issued to the petitioners. This is under challenge before this Court in this petition. 6. I have heard learned counsel for the petitioners and respondent No. 1 and perused the documents and reply filed by respondent No. 1. Respondent No. 1 has also filed bunch of correspondence between the parties in serial number and date wise for convenience of this Court to understand the dispute between the parties. 7. 6. I have heard learned counsel for the petitioners and respondent No. 1 and perused the documents and reply filed by respondent No. 1. Respondent No. 1 has also filed bunch of correspondence between the parties in serial number and date wise for convenience of this Court to understand the dispute between the parties. 7. The contention of the learned counsel for the petitioners is that petitioner No.1-Company is not at all involved as beneficiaries in the transaction but were only communicating messages from respondent No. 1 to respondent No. 2 and from respondent No.2 to respondent No. 1. This is also evident from the correspondence referred to in the complaint itself. 8. The contract was between respondents No. 1 and respondent No. 2 and not respondent No.1 and the petitioners. They were neither parties nor signatories to the said contract. It has been vehemently argued by the learned counsel for the petitioner that even if complete complaint is considered as it is necessary ingredients of offence of cheating punishable under sections 420 are not made out. Its a pure dispute of civil nature and the petitioners have been maliciously involved in the criminal case to resolve the said dispute between respondent No.1 and respondent No.2. It has also been argued that petitioner No.1-Company is only providing consultancy services for marketing of goods and commodities from India to various entities including respondent No.2. Therefore, breach of contract was between them as such for any action or dispute, the petitioners cannot be held responsible. According to the' petitioners, this facts is clear from the correspondence between the parties filed by the respondent No.1. Learned counsel has placed reliance on the following decisions : (i) S. W. Palanitkar and others v. State of Bihar and another (JT 2001 (9) SC 151) (ii) S. W. Palanitkar and others v. State of Bihar and another [(2002) I SCC 241] (iii) Ajay Mitra v. State of M.P. and others 2003(1) JLJ 325 = (JT 2003(1) SC 418) and the judgment passed by this Court in case of (iv) Kunstocom Electronics (I) Ltd. v. State of M.P. and others(MCrC. No. 4193/98 decided on 5.7.2002. 9. No. 4193/98 decided on 5.7.2002. 9. In oppugnation learned counsel appearing for respondent No. 1 has submitted that allegations levelled in the complaint, the statement of the complainant and the documents filed are clearly making out prima facie case for proceeding under sections 418, 420 IPC against the petitioners and respondent No.1. The counsel has also submitted that roaming enquiry and consideration of pros and cons of the case is not permissible under section 482 CrPC, therefore, petition is liable to be dismissed having no substance on merits. 10. After perusing the entire record of the case and hearing both parties one thing is very clear that now there is no dispute between them regarding quality and make of the goods. The only dispute is regarding reimbursement of demurrage detention and other charges incurred by respondent No. 1-complainant while lifting goods from Neva Sheva port Mumbai. Now, the crucial question before this Court to decide is that at the time of correspondence between respondent No. 1 and petitioners, petitioners were of guilty intention or having mens rea on their part to pursue the respondent No. 1 to take delivery of goods at Nava Sheva and whether they had deceived respondent No.1 fraudulently or dishonestly to deliver any property or consent to retain an y property. 11. Admittedly, petitioners are not signatory or party in the contract filed with the petition (Annexure P-2) arrived at between respondent No.1 and respondent No.2. Respondent No.2 had signed this contract at Switzerland whereas respondent No.1 has signed the same at Indore. In the terms of contract, material was also received/accepted so sent by the respondent No.2 to respondent No.1. Now whether the petitioners have acted with guilty intention or mens rea knowing well at the time of conveying correspondence of respondent No.2 to respondent No. 1 for lifting goods from Nava Sheva Port Mumbai. Letters dated 18th April, 2001 sent by the petitioners to respondent No.1 is very important and material on which both the parties have placed reliance. The relevant portion of the said letter is extracted as under: "Please refer to the discussions we had today regarding delivery of consignment since the steamer agent has already filed the manifest at Nava Sheva. It will be a long and hard work to get the manifest changed. The relevant portion of the said letter is extracted as under: "Please refer to the discussions we had today regarding delivery of consignment since the steamer agent has already filed the manifest at Nava Sheva. It will be a long and hard work to get the manifest changed. We suggest please take the delivery at Nava Sheva so that demurrage and detention of the containers could be avoided." . Glencore International AG have advised that the actual demurrage and detention paid by Metalman for taking delivery at Nava Sheva will be reimbursed. We have already spoken to Steamer Agent, Mr. Khanolkar who will take up with shipping line at Singapore to extend the extra free time. Please approach the Steamer Agent to accept delivery at Nava Sheva." 12. The above contents of this letter, has been interpreted by respondent No. 1 as promises by the petitioners and on the basis of this promise to reimburse demurrage detention charges, goods were lifted whereas learned counsel for the petitioners submitted that without adding or excluding any contents of this letter, it is crystal clear that only advice was given by the petitioners to the respondent No. 1 for lifting the goods. The contents are no where disclosing the promise by the petitioners. The contents are also disclosing the fact that the petitioner has conveyed to respondent No.1. Respondent No.2 was also advised to reimburse demurrage detention charges. 13. Having given my anxious and careful consideration to this letter, it is very easy to discern that the same is not disclosing any promise extended by the petitioners to respondent No. 1 on their behalf or on behalf of respondent No. 2 to make reimbursement of demurrage and detention charges. The petitioners have only made suggestion to respondent No. 1 for taking delivery at Nava Sheva and also advised respondent No. 2 to reimburse demurrage and detention charges. 14. Learned counsel appearing for the respondent No. 1 has also referred to letter dated 21.5.2002 and the reply of the above mentioned FAX letter dated 18.4.2001 and 21.4.2002 and submitted that the contents of this letter sent by respondent No.1 to the petitioner is clearly disclosing the fact that respondent No.1 agreed to lift the goods only on the basis of promise of payment of demurrage and detention charges by the petitioners. This is true that the contents of this letter are disclosing the fact that respondent No.1 has addressed to petitioners that as per his request be agreed to lift the goods from Nava Sheva port Mumbai after paying demurrage. He also sought confirmation that the same will be reimbursed within 15 days. 15. This Court has gone through the contents of this letter sent by respondent No.1 to the petitioners. The contents of this letter nowhere disclosing the fact that the petitioners in any way induced respondent No. 1 to lift the goods by making a promise to reimburse demurrage and detention charges. The relevant contents of this letter dated 21.4.2001 sent by respondent No. 1 is extracted as under: Dear Sir, Please refer to the above mentioned contract and the various correspondence ending with your FAX dated 18.4.2001. Contrary to the terms of our contract you have expressed your desire for us to accept the discrepant documents and to accept the deliveries at place other than contracted for. Subject to our accepting your request you have verbally conveyed your acceptance to reimburse us to the cost incurred by us towards demurrage, detention including container detention charged by Shipping Lines in addition to the Port detention charged for the period till the cargo is cleared from the Port. We as a gesture of goodwill agree for the same and request you to confirm the verbal communication in writing. Kindly also confirm that you shall reimburse these expenditures within a period of 15 days from your raising the claim on you. Please treat this matter as urgent so as to proceed immediately." Again the petitioners have sent FAX dated 21.4.2001 which IS reproduced herein below : Re. CTR No. 061.0110833-S Please refer to your message dated 21.4.2001, Glencore International AG, Baar Have advised us to inform Metalman following: "1. Glencore International AGA Baar have already •agreed to reimburse actual demurrage/detention charges vide Glencore's letter dated 18.4.2001 incurred by Metalman in respect of captioned two consignments. 2. Glencore International also advised that they will reimburse claim of Metalman within 15-20 days from the date of receipt of claim. 3. Glencore International appreciate Metalman's gesture in accepting shipment at Nava-Sheva instead of ICD Pithampur. 4. Glencore International AGE Baar have instructed us to issue this message to Metalman." 16. 2. Glencore International also advised that they will reimburse claim of Metalman within 15-20 days from the date of receipt of claim. 3. Glencore International appreciate Metalman's gesture in accepting shipment at Nava-Sheva instead of ICD Pithampur. 4. Glencore International AGE Baar have instructed us to issue this message to Metalman." 16. The above mentioned contents of letter dated 21.4.2001 is reflecting the fact that respondent No. 1 accepted the request made by the petitioners. But in FAX letter dated 18.4.2001 nowhere mentioned the words "request" but the words "we suggest" are mentioned therein. 17. In the letter dated 21.4.2001 on the same day by FAX, a message was conveyed to respondent No. 1 by the petitioners. This message is also showing the fact that petitioners had conveyed message of respondents No. 2 to respondent No. 1 that demurrage and detention charges will be reimbursed within a period of 15-20 days. In this FAX message also promise was not made by the petitioner. They have merely conveyed message of respondent No. 1. More or less further correspondence between the parties is to the effect that petitioners have conveyed message of respondent No. 1 to respondent No. 2 regarding payment of demurrage and detention charges. None of the le,tters are disclosing that any promise was made by the petitioners for making payment of, demurrage and detention charges i.e. Rs. 6 lacs to the petitioners. 18. The Supreme Court in the case of S. W. Palnitkar (supra) as well as in the case of Ajay Mitra (supra) has explicitly held that ''Fraudulent or dishonest intention should exist, in order to make out offence of cheating, at the time of making inducement or otherwise. Mere failure to keep promise cannot be termed as an act alleging to cheating." In the judgment decided by this Court in the case of Kunstocom Electronics (supra) in the facts and circumstances of the case, this Court has held that the petitioner was acting between two companies as an agent and therefore, because of any breach of contract, an agent could not be held responsible. 19. In the facts and features of the case on hand, petitioners were not directly involved as one party of the contract. 19. In the facts and features of the case on hand, petitioners were not directly involved as one party of the contract. The documents between the parties and the contract do not disclose any inducement involving mens rea on the part of the petitioners to the respondent No. 1 to lift the goods on the basis of promise of reimbursement of demurrage and detention charges by them. The petitioners had conveyed message and correspondence between the respondents No. 1 and 2. Therefore, this Court is of the opinion that there is no prime facie material to make out a case for registration of complaint for the offence punishable under sections 418 and 420, IPC and for issuance of process against the petitioners. As such the same is hereby quashed. 20. Consequently, the petition is hereby allowed.