Judgment 1. This application under Section 482 of the Code of Criminal Procedure is directed against the order dated 5.1.2006 passed by the Chief Judicial Magistrate, Patna in Complaint Case No. 2088 of 2005 whereby summons have been ordered to be issued against the petitioners to face trial for the offence under Section 406 of the Indian Penal Code. 2. The case of the complainant-opposite party No. 2 Pranav Khetan in nut shell is that he is a wholesale dealer in saris and the petitioners are retail dealers. The petitioners took saris worth Rs. 70,000/-on credit with promise to pay the price after selling them but they did not pay the price by the tentative date. So, the complainant sent his staff to the petitioners. The petitioners did not pay the amount on the ground of economic condition and asked him to come after 20 days. Then after one month the complainant himself talked to them on phone but again the petitioners gave the same reply and requested for one month time. Lastly the petitioners refused to make payment and thereby cheated the complainant. 3. The learned Magistrate after considering the statements of the complainant and the witnesses examined under Section 202, Cr PC found a prima facie case under Section 406 of the Indian Penal Code against the petitioners and passed the impugned order. 4. Learned counsel for the petitioners submitted that no offence under Section 406, IPC is made out on the allegations. He also submitted that though the case of Opposite Party No. 2 is that the petitioners cheated him, this is a case of simple breach of business contract and no offence of cheating is also made out. At best the dispute is of civil nature. His submission also is that the amount has already been paid in instalments. 5. Learned counsel for opposite party No. 2 submitted that the allegations fully disclose the offence of cheating and so, cannot be quashed. 6. Though the learned Magistrate has found a prima facie case under Section 406 of the Indian Penal Code, to attract the offence of breach of trust punishable under Section 406, IPC, there must be entrustment of property to the offender and the person who entrusted the property must continue to be the owner of the property but in this case the saris were, in fact, sold. So, the ownership of the complainant had seized after delivery of the saris. Therefore, no trust was created and there could not be any breach of trust and so no offence under Section 406 of the Indian Penal Code is made out in this case. 7. Then as regards cheating the settled law is that in case of breach of contract, the intention of cheat must be present at the time when the contract was entered into. The Supreme Court in the case of Uma Shankar Goenka v. State of Bihar, (2005) 10 SCC 336 , has further held that if such intention developed later on, the same would not amount to cheating. In this case, there is no averment that the petitioners had dishonest intention from the very beginning. The subsequent conduct of the petitioners which is also a factor to determine as to whether the intention was dishonest at the inception also shows that the petitioners were unable to pay the amount on account of their economic condition and they prayed for extension of time. Therefore, from the subsequent conduct of the petitioners it cannot be inferred (though the allegation is that lastly they refused to make payment) that the petitioners had dishonest intention from the very beginning and from the very beginning their intention was not to keep their promise. So, no offence of cheating also is made out in this case. Learned counsel for the petitioners is correct that the dispute is purely a civil dispute between the parties. 8. In the result, this application is allowed and the impugned order is hereby quashed.