Judgment :- (1.) BY this application dated 13. 07. 2007 under Section 482 of the Cr. P. C. the two petitioners who are accused in Complaint Case No. 6433 of 2007 under Section 420/406 of the IPC pending before the learned Chief metropolitan Magistrate, Calcutta pray for quashing of the proceedings on the ground that the petition of complaint does not disclose any prima facie criminal offence. (2.) THE O. P. No. 2 had an agreement with the two petitioners for supply of sports shoes as consignment agent of the accused No. 1/petitioner no. 1 to the relevant parties as may be directed by the accused No. 1/ company. At the start of the business transaction the accused No. 1 demanded Rs. 5 lac towards security deposit and the complainant-O. P. No. 2 made over three cheques, being No. 196266 for Rs. 1,50,000/-, No. 196267 for Rs. 2 lac and No. 196265 for Rs. 1,50, 000/-all undated thus totaling a sum of Rs. 5 lac drawn on Canara Bank, Sikh Temple Road, guwahati and it was understanding between the parties that the cheques should not be presented by the accused No. 1/company to its banker and they would be returned to the complainant after completion of the business of the transaction. The O. P. No. 2-complainant further alleged that the said o. P. No. 1/company made certain expenses and incurred expenditure which were understood to be adjusted towards the amount as would be payable to the complainant arising out of the business transaction and such amount came to be in the sum of Rs. 39,750/ -. Towards the end of the year 2006 the dispute arose between the parties when the accused No. 1/company illegally demanded a lucrative amount from the complainant without sending any cogent authentic documents or statement of accounts through their letter dated 03-01-2007. The complainant immediately sent statement of accounts for the relevant period and the letter in reply dated 10-01-2007. In that reply it was stated that it was the accused No. 1/company who was to pay a huge amount of money to the complainant. Then there was no further communication between the parties. The complainant immediately sent statement of accounts for the relevant period and the letter in reply dated 10-01-2007. In that reply it was stated that it was the accused No. 1/company who was to pay a huge amount of money to the complainant. Then there was no further communication between the parties. But all on a sudden the complainant became surprised to receive three demand notices in respect of the three cheques under Section 138 of the N. I. Act on the ground that the cheques were presented by the accused No. 1 and dishonoured by the bank. But according to the complainant the complainant had no liabilities to the accused No. 1/company and without any written permission from the complainant the cheques were presented and such presentation of cheques were absolutely illegal, mala fide because they issued the cheques to the accused No. 1/company towards security deposit and such presentation of cheques constitutes criminal breach of trust and cheating by the accused-petitioners and was intended to grab the entire amount of Rs. 5 lac. Reply was given through the Advocate of the complainant through two such notices. Request was made to return the cheques but in vain. The complainant would not have entered into any business dealing with the accused company if it was known to the complainant that he would be so cheated by the accused persons. Therefore, it is alleged that the accused persons have committed offences under Section 406/420 of the IPC. (3.) IT is the lease of the accused-petitioners that after the execution of the consignment agreement ; several transactions took place between the parties relating to sale of sports wears and sports goods. As a result of the transaction a sum of Rs. 5,06,475. 50 was due and payable by the complainant to the accused company and since there was default committed by the complainant the three cheques amounting to Rs. 5 lac were presented but dishonoured and accordingly accused persons instituted a proceeding under Section 138/141/142 of the N. I. Act read with Section 420 of the ipc against the complainant. The learned Metropolitan Magistrate took cognizance of the offence and issued process against the complainant/ company. It is alleged that the complainants complaint is but a counterblast to the case instituted by the accused under the N. I. Act. The learned Metropolitan Magistrate took cognizance of the offence and issued process against the complainant/ company. It is alleged that the complainants complaint is but a counterblast to the case instituted by the accused under the N. I. Act. The dispute is purely civil in nature and the petition of complaint taken at its face value does not constitute any offence far less the offences of cheating and criminal breach of trust. If there had been any breach of agreement by any of the parties to the transaction then the remedy would lie with the Civil Court and the remedy intended in the cloak of a criminal offence is not maintainable. There has been suppression of material fact that the accused person had already instituted a criminal complaint under Section 138 of the N. I. Act and accordingly the prosecution is liable to be quashed. (4.) I have heard Mr. T. N. Roychowdhury, appearing with Mr. Debjyoti deb for the petitioner and Mr. S. Chatterjee and Mr. Joy Sengupta for the o. P. No. 2 and Mr. Alok Roychowdhury for the State of West Bengal. (5.) THE ingredients of the offence of cheating are (a) there has to be a deception of a person, (b) dishonest inducing that person to deliver any property to any person or to consent that any person shall retain any property or (c) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. (6.) IF we look at Section 405 of the IPC, we find that the ingredients are that (a) there has to be an entrustment to a person with property or with any dominion over property, (b) the persons so entrusted dishonestly misappropriates or converts to his own use that property or dishonestly using or disposing of that property or wilfully suffer any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract made touching the discharge of such trust. (7.) THE petition of complaint when placed alongside the definition of the criminal breach of trust and also of cheating would fail to make out a prima facie offence under any of the sections. I am not prepared at the moment to go into the defence version as is narrated in the revisional application and the annexure thereto. The annexures to the revisional application are in the aid of the defence of the criminal case and such defence has to be tested only at the trial, but given a look at the petition of complaint itself and alone to the exclusion of any material whatsoever then it must have to be said without any difficulty that the petition of complaint has failed to disclose any prima facie offence either of cheating or of criminal breach of trust. A first few paragraphs of the petition of complaint relates to agreement between the parties for supply of sports goods to the constituents of the accused No. 1 and as a part of the agreement the complainant had to issue three cheques totaling Rs. 5 lac as a security deposit and allegedly according to the complainant it was the understanding or the agreement by and between the parties that such cheques would not be presented to the bank and they would be returned to the complainant after the business transaction comes to close. According to the complainant in violation of the terms of agreement or of the understanding the accused company presented the cheques to the bank and got the cheques dishonoured and thereby fraudulently served three separate notices under Section 138 (b) of the n. I. Act as a prelude to the institution of three criminal cases under Section 138 of the N. I. Act and according to the complainant such presentation of the cheques constitutes the offence of cheating and criminal breach of trust. So the petition of complaint does not reveal that the complainant was induced fraudulently or dishonestly to deliver any property or to consent that the accused will retain the property or induced the complainant to do or omit to do anything which he would not do or omit if he were not so deceived. So the petition of complaint does not reveal that the complainant was induced fraudulently or dishonestly to deliver any property or to consent that the accused will retain the property or induced the complainant to do or omit to do anything which he would not do or omit if he were not so deceived. There was clearly, as the petition of complaint itself discloses an agreement between the parties whereby and whereunder the complainant was to deliver sports goods to the constituents of the accused No. 1/company and the agreement as annexed to the revisional application and as taken recourse to by the O.P. No. 2/complainant itself provides a good number of terms and conditions, the breach of which or the dispute arising out of which would lead to initiation of action under Delhi jurisdiction. The entire gamut of the petition of complaint is a grievance against the presentation of three cheques by the accused in violation of the understanding reached by and between the parties. If there has been any violation of the understanding by and between the parties, if there had been an oral agreement by and between the parties concerning the issuance of cheques, it can be the subject matter of defence in the prosecution of the complainant in the criminal case instituted by the accused persons under Section 138 of the N. I. Act. Presentation of three cheques with the bank by the accused company in violation of the alleged understanding by and between the parties, does not constitute prima facie a case of cheating or criminal breach of trust. The learned Advocate for the O. P. takes me to a decision in AIR 1990 SC 494 to argue that where the Magistrate applies judicial mind and issues process quashing of a proceeding is not permissible. The facts and circumstances in the reported case are in a different context. According to the learned advocate for the complainant, issuance of cheque for Rs. 2 lac was outside the agreement and the agreement was not extended by any mutual agreement. It was argued that the cheques were undated. It was argued that the intention of the petitioners was to grab the property. According to the learned advocate for the complainant, issuance of cheque for Rs. 2 lac was outside the agreement and the agreement was not extended by any mutual agreement. It was argued that the cheques were undated. It was argued that the intention of the petitioners was to grab the property. If these were the defences in response to the criminal charge under Section 138 of the N. I. Act they can be pleaded in course of the defence at the trial of the criminal case and in fact such alleged defence cannot be the subject matter of a criminal proceeding under Section 420/406 of the IPC. Mr. Roychowdhury refers to me the decisions in Inder Mohan Goswami and Anr. v. State of uttaranchal and Ors. , AIR 2008 SC 251 ; Ram Biraji Debi v. Umesh Kumar. , 2006 Cr LJ 2782 : (2006)2 C Cr LR (SC) 118 ; Anil Mahajan v. Bhore industries Ltd. and Anr. , (2005)10 SCC 228 ; Ajoy Mitra v. State of M. P. , (2003)3 SCC 11 . It is not necessary for me to go into the facts of the-reported cases. The ratio of the decisions is that an alleged breach of promise does not constitute a criminal offence of cheating. To constitute a criminal offence of cheating a guilty intention at the threshold of the transaction is necessary and if such guilty intention be not deciphered then there can hardly be a criminal offence of cheating. This is the ratio of the decision in Ajoy Mitra v. State of M. P. (supra) and Anil Mahajan (supra). In ram Biraji Debi (supra) it has been held that if the petition of complaint itself does not disclose an offence of cheating then taking cognizance of offence by the Magistrate would be an abuse of the process of the Court. I have repeatedly read the petition of complaint but failed to find out where is the genesis of the offence of the cheating or of the criminal breach of trust. The parties had business transaction pursuant to an agreement. According to the complainant the complaints company was to have some amount of money, while the accused persons fraudulently presented the cheques in violation of the alleged understanding. The parties had business transaction pursuant to an agreement. According to the complainant the complaints company was to have some amount of money, while the accused persons fraudulently presented the cheques in violation of the alleged understanding. Presentation of cheques allegedly in violation of the understanding that the cheques would not be presented but merely be kept as a security deposit and would be returned to the complainant after the business transaction comes to an end cannot give rise to an offence of cheating or criminal breach of trust. (8.) SITUATED thus, I am of the judgment that the criminal proceeding cannot continue. Resultantly, the revisional application is allowed. The proceedings of the criminal case being CR No. 6433 of 2007 under Section 420/406 of the IPC is quashed. (9.) CRAN No. 2268 of 2007 filed by the O. P. No. 2 is accordingly disposed of. (10.) A copy of the order shall be sent to the learned Chief Metropolitan, calcutta for information and necessary action.