Judgment :- (1) The revisional application under Section 397/401 read with Section 482 of the Code of Criminal Procedure is directed to quash proceeding against the petitioners in connection with Complaint Case No. C-3042 of 2008 under Section 406/420/120B of the Indian Penal Code read with Section 13B of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. (2) Petitioners herein are impleaded as accused along with others, in connection with the above noted case and the learned Court below by his order dated 8.2.2008 directed issuance of process against all the accused persons calling upon them to face trial for commission of offence as mentioned above. , (3) The case of the petitioners in short is that petitioners herein are office bearers of Martin Burn Ltd. (listed as accused No. 12 in the petition of complaint) Opposite Party booked a flat with 2 open car parking space at the housing complex constructed by the company of the petitioners at Rajarhat under Rajarhat, Gopalpur Municipality within the district of North 24 Parganas. The registered agreement between the parties was entered on 4.10.2001. The opposite party paid the entire amount, of Rs. 23,73,388/-on various dates between 7.2.2001 and 29.5,2001. However, on completion of the construction and after measurement, it could be ascertained that the actual area of the flat is more than what is stated in the agreement between the parties. In terms of the agreement the construction should have been completed by June, 2003 but due to intervening circumstances as housing infrastructure development corporation did not complete the drainage connection and facilities, the completion was delayed and the outside of the drainage facilities was completed in April, 2004. The opposite party suggested various modifications in the flat proposed to be purchased by him. The opposite party even after completion of flat raised numerous allegations. Ultimately on 12.4.2004 the Opposite Party repudiated the agreement and demanded refund of the entire consideration amount paid by him along with 15% interest. The Opposite Party failed to fulfil his commitment as per agreement. Ultimately, the petitioners has no option but to terminate the contract and forfeit the amount paid by the Opposite Party because of breach of agreement. Even after such termination the Opposite Party sent a post dated cheque of Rs. The Opposite Party failed to fulfil his commitment as per agreement. Ultimately, the petitioners has no option but to terminate the contract and forfeit the amount paid by the Opposite Party because of breach of agreement. Even after such termination the Opposite Party sent a post dated cheque of Rs. 2,40,869/-dated 1.10.2006 but the cheque was returned by the petitioners ultimately the Opposite Party lodged a false complaint against the petitioners. (4) It is the contention of the petitioners that there is no basis in connection with the criminal offence for which the petition of complaint was instituted by the Opposite Party before the learned Magistrate. There is no ingredient to constitute the offence either under Section 406 or under Section 420 or under Section 120B of the I.P.C. (5) The Opposite Party herein after entering appearance filed affidavit and produced documents which were annexed along with the petition of complaint before the learned Court below. (6) The main contention of the learned Advocate for the petitioner appears to be that on perusal of the recital in the petition of complaint there is nothing to show that the Opposite Party herein was induced or deceived and as a consequence of such inducement he parted with the property. It is also submitted that in this ease the Opposite Party has instituted the criminal case only to harass the petitioners. The entire fact as disclosed in the petition of complaint would show that a regular commercial transaction was entered between the parties. The Opposite Party approached the petitioners to purchase the flat constructed by the Company of the petitioners and consequent to the agreement paid the amount of money as price to purchase the flat. Thereafter, dispute cropped up between the parties mainly on the ground that the constructed area was more than the area shown in the agreement, but the Opposite Party refused to pay the enhanced amount. Moreover, the Opposite Party raised false and frivolous allegations against the petitioners. The breach of agreement was committed by the Opposite Party forcing the petitioners to terminate the contract and forfeit, the amount. Moreover, the Opposite Party raised false and frivolous allegations against the petitioners. The breach of agreement was committed by the Opposite Party forcing the petitioners to terminate the contract and forfeit, the amount. (7) Learned Advocate for the petitioners drew the attention of this Court to various recitals in the petition of complaint and submitted that ingredient to constitute the offence of cheating and criminal breach of trust are totally absent, in this case and as such further continuation of the proceeding would be an abuse of the process of the Court. (8) In support of his contention learned Advocate for the petitioners has referred to the following decisions : 1. Radhika Nandan Sen v. Pulak Kumar Sarkar and Anr. reported in 1999 C Cr LR (Cal) 424. 2. Uma Shankar Gopalika v. State of Bihar and Anr. reported in (2005) 10 SCC 336 , 3. Murarilal Gupta v. Gopi Singh reported in (2005)13 SCC 699 . 4. Anil Mahajan v. Bhor Industries Ltd. and Anr. reported in (2006)1 SCC (Cr) 746. 5. Thelapalli Raghavaiah v. Station House Officer and Ors. reported in (2007)2 C Cr LR (SC) 59. 6. Dharampal Ajit Sana and Anr v. Syndicate Bank reported in (2007)2 C Cr LR (Cal) 94. 7. Sujay Pal and Ors. v. The State and Anr. reported in (2007)2 C Cr LR (Cal) 643. 8. Vir Prakash Sharma v. Anil Kumar Agarwal and Anr. reported in (2007) 7 SCC 373 . (9) B. Suresh Yadav v. Sharifa Bee and Anr. reported in AIR 2008 SC 210 . (10) Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. reported in AIR 2008 SC 251 . (11) Krishna Kumar Bangur v. The State of West Bengal and Anr. reported in (2008)1 C Cr LR (Cal) 508. (12) Kartick Hazra @ Srikanta @ Kartick Biswas v. The State of West Bengal and Ors. reported in (2008)1 C Cr LR (Cal) 517. (13) Harshad Himmatlal Rupani v. The State of West Bengal and Anr. reported in (2008)1 C Cr LR (Cal) 523. (14) Kingshuk Neogi v. The State of West Bengal and Anr. reported in (2008)1 C Cr LR (Cal) 789. (15) Order dated. 18,8.2008 passed by the Honble High Court at Calcutta in C.R.R. No. 185 of 2008 in Dhiraj Sen v. The State of West Bengal and Anr. 9. In Radhika Nandan Sen v. Pulak Kumar Sarkar and Anr. (14) Kingshuk Neogi v. The State of West Bengal and Anr. reported in (2008)1 C Cr LR (Cal) 789. (15) Order dated. 18,8.2008 passed by the Honble High Court at Calcutta in C.R.R. No. 185 of 2008 in Dhiraj Sen v. The State of West Bengal and Anr. 9. In Radhika Nandan Sen v. Pulak Kumar Sarkar and Anr. (supra), learned Single Judge of this Court in connection with a case under Section 406/420 of the Indian Penal Code and in the fact situation of case took the view that in case of business transaction between the parties the remedy lies before the appropriate Court of civil jurisdiction and the remedy, if any, is by way of civil nature and as such the criminal case would not be maintainable. 10. In Uma Shankar Gopalika v. State of Bihar and Anr. (supra), the Honble Supreme Court in connection with an offence under Section 420/120B of the I.P.C. held, it is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. 11. In Murarilal Gupta v. Gopi Singh (supra), Three Judges Bench of the Honble Supreme Court held in connection with a case under Section 420/ 406 of the Indian Penal Code that the petition of complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioners pursuant to which the responded parted with the money. 12. In Anil Mahajan v. Bhor Industries Ltd. and Anr. (supra), Three Judges Bench of Honble Supreme Court held that mere mentioning of the words deceive and cheating in the complaint filed before the Magistrate and cheating in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. It is clear from the substance of the complaint that present is a simple case of civil dispute between the parties. It is clear from the substance of the complaint that present is a simple case of civil dispute between the parties. The Honble Supreme Court in this case affirmed the order passed by the Sessions Judge setting aside the order issuing process passed by the Magistrate, 13. in Thelapalli Raghavaiah v. Station House Officer and Ors. (supra), Two Judges Bench of Monble Supreme Court in the fact situation of that case held, "We have carefully gone through the complaint made by the petitioner, and are convinced that the same primarily makes out a civil dispute relating to measurement, though an attempt has been made to give the same a criminal flavour." 14. The Supreme Court refused to interfere with the order passed by the High Court. 15. In Dharampal Ajit Saria and Anr v. Syndicate Bank (supra), learned Single Judge of this Court in connection with an offence under Section 406/ 34, I.P.C. held that mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown existing right at the beginning of the transaction. In order to make a person liable for prosecution for an offence of cheating it is essential to show that he had fraudulent or dishonest intention at the time of making promise and existence of such culpable intention right at the beginning cannot be presumed merely from his failure to keep up such promise subsequently, (16) In Sujoy Paul and Ors. v. The State and Anr. (supra), another learned Single Judge of this Court quashed the proceeding in connection with a case under Section 406/420, I.P.C. after deciding that the nature of dispute between the parties is purely civil dispute which should have been referred to arbitration. (17) In Vir Prakash Sharma v. Anil Kumar Agarwal and Anr. (supra), the Honble Apex Court held that when after perusal of the petition of complaint and after taking the same in its face value no ingredient, to institute the offence is disclosed, the proceeding is required to be quashed. (18) In B. Suresh Yadav v. Sharifa Bee and Anr. (supra), the Honble Supreme Court in connection with a case under Section 420, I.P.C. quashed the proceeding where the complainant took conflicting and contradictory stand in connection with the recital in the petition of complaint, and the civil suit filed by him. (19) In Inder Mohan Goswami and Anr. (18) In B. Suresh Yadav v. Sharifa Bee and Anr. (supra), the Honble Supreme Court in connection with a case under Section 420, I.P.C. quashed the proceeding where the complainant took conflicting and contradictory stand in connection with the recital in the petition of complaint, and the civil suit filed by him. (19) In Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (supra), in the fact situation of the case held at para 22 which is set out below : "22. The veracity of the facts alleged by the applicants and the respondents can only be ascertained on the basis of evidence and documents by a civil Court of competent jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has already instituted a civil suit in the Court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the Court." (20) In this case the Honble Supreme Court reiterated the principle to invoke the inherent power of this court in which the said power can be exercised. The same is set out below : a. To give effect to an order under the code ; b. To prevent abuse of the process of Court, and c. To otherwise secure the ends of justice. (21) In Krishna Kumar Bangur v. The State of West Bengal and Anr. (supra), learned Single Judge of this Court in connection with a case under Section 420 of the I.P.C. quashed the proceeding after deciding that so far as the recital in the petition of complaint is concerned, there is no material indicating that there was any intention to deceive from the very beginning. The learned Judge quashed the proceeding as the case under challenge was found to be purely civil in nature. (22) In Kartick Hazra @ Srikanta @ Kartick Biswas v. The State of West Bengal and Ors. (supra), the Division Bench of this Court decided a case under Section 302 and Section 304 Part I, I.P.C. It is not clear to me as to why this decision is referred, as the same has no manner of application in connection with the present matter. (23) In Harshad Himmatlal Rupani v. The State of West Bengal and Anr. (supra), the Division Bench of this Court decided a case under Section 302 and Section 304 Part I, I.P.C. It is not clear to me as to why this decision is referred, as the same has no manner of application in connection with the present matter. (23) In Harshad Himmatlal Rupani v. The State of West Bengal and Anr. (supra) the learned Single Judge of this Court quashed the proceeding in connection with a case under Section 420 of the Indian Penal Code when it was found intention to deceive at the beginning of the transaction was totally absent. (24) In Kingshuk Neogi v. The State of West Bengal and Anr. (supra), the learned Single Judge of this Court in connection with a case under Section 420/120B of the Indian Penal Code quashed the proceeding when it was found that the dispute projected in the petition of complaint was purely civil dispute. (25) In Order dated 18,8.2008 passed by the Honble High Court at Calcutta in C.R.R. No. 185 of 2008 in Dhiraj Sen v. The State of West Bengal and Anr. (supra), the order dated 18.8.2008 passed by me in connection with C. R. R. No. 185 of 2008 cannot be considered by me in view of the fact that no certified copy of the order was produced. However, even after perusing the aforesaid order, I find that the order was passed on a different fact situation of the case. (26) Refuting the argument advanced by learned Advocate for the petitioners, the learned Advocate for the Opposite Party submitted that so far as the present case is concerned, this Court may not interfere in exercise of its power under Section 482 of the Code of Criminal Procedure, because that would amount to interfere in a legitimate prosecution. (27) The learned Advocate for the Opposite Party submitted that the intention to deceive from the inception of the transaction cannot be formulated into a straight jacket formula and each fact and circumstance of the case must be required to be examined in order to ascertain whether there is any element to constitute the offence either under Section 420 or under Section 406 of the Indian Penal Code. (28) It is the contention, of the learned Advocate for the Opposite Party that subsequent conduct of the parties may give an indication about the intention from the inception of the transaction. (28) It is the contention, of the learned Advocate for the Opposite Party that subsequent conduct of the parties may give an indication about the intention from the inception of the transaction. It is the submission of learned Advocate for the Opposite Party that so far as the present petition of complaint is concerned, the same cannot fall within the category of simple breach of contract. (29) It is further contended that pendency of civil suit between the parties cannot be a ground to quash the criminal prosecution, as because there is no legal proposition that pendency of the civil suit, by itself, acts as a bar to initiate criminal prosecution. It is the contention of learned Advocate for the Opposite Party that in spite of paying the entire amount at the very inception of the transaction, the Opposite Party herein was not only denied the delivery of the flat, for which the agreement was reached between the parties but the petitioners in violation of the terms of agreement forfeited the entire amount paid by the Opposite Party to the petitioners. The agreement entered into between the parties does not provide for any contingency under which such forfeiture can be permitted by the petitioners. (30) The learned Advocate for the Opposite Party in support of his contention has referred to the following decisions : 1. Tara Dutta v. The State and Anr. reported in AIR 1975 Cal 450 . 2. Smt. Kamata Devi and Anr v. Smt. Sushila Sharma reported in (1994)1 Crimes 195. 3. Ajay Mehra and Anr. v. Durgesh Babu and Ors. reported in 2003 SCC (Cr) 1530. 4. Rajesh Bajaj v. State NCT of Delhi and Ors. reported in 1999 SCC (Cr) 401 : 1999 C Cr LR (SC) 234. 5. Union of India v. Prakash P. Hinduja and Anr. reported in AIR 2003 SC 2612 : 2003 C Cr LR (SC) 752. 6. Trisuns Chemical Industry v. Rajesh Agarwal and Ors. reported in (1999)8 SCC 686 . 7. M/s. Medchl Chemicals and Pharma Pvt. Ltd. v. M/s. Biological E. Ltd. and Ors. reported in AIR 2000 SC 1869 . 8. M/s Sri Krishna Agencies v. State of A.P. and Anr. reported in (2009)1 Crimes 97 (SC). 9. The State Financial Corporation and Anr. v. M/s. Jagdarnba Oil Mills and Anr. reported in AIR 2002 SC 834 . (31) In Tara Dutta v. The State and Anr. reported in AIR 2000 SC 1869 . 8. M/s Sri Krishna Agencies v. State of A.P. and Anr. reported in (2009)1 Crimes 97 (SC). 9. The State Financial Corporation and Anr. v. M/s. Jagdarnba Oil Mills and Anr. reported in AIR 2002 SC 834 . (31) In Tara Dutta v. The State and Anr. (supra), the Full Bench of this Court after referring to the earlier decision of Supreme Court in R.P. kapur v. State of Punjab reported in AIR 1960 SC 866 held that the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. Ordinarily it would not be open to any party to invoke the High Courts jurisdiction in order to contain that on a reasonable appreciation of the evidence, the accusation would not be sustained. When the evidence are recorded under Section 200 of the Code of Criminal Procedure is accepted by the Magistrate, the High Court should not examine the evidence afresh in exercise of its inherent jurisdiction with a view to test the acceptability or reliability of that evidence. (32) In Smt. Kamala Devi and Anr. v. Smt. Sushila Sharma (supra), the learned Single Judge of this Court, held that in a case where the averment of petition of complaint confers jurisdiction in Calcutta Court and when the deposition of the complainant recorded under Section 200 does not speak about those facts, the Court still has to see whether initial deposition along with complaint discloses the core incident. (33) In Ajay Mehra and Anr. v. Durgesh Babu and Ors. (supra), the Honble Supreme Court held at para 4 and the relevant portion is set out below :-" The Magistrate has merely taken cognizance of the offence and has issued process and therefore at this stage the question of consideration of other materials does not arise and the Court will have to take a view taking into account the fact that all the statements made in the complaint as well as the statement made under Section 202, if taken on their face value, an offence can be said to have been made out. Applying that standard, it is held that there was no error in taking cognizance of the offence. Applying that standard, it is held that there was no error in taking cognizance of the offence. However, it would be open to the accused while framing charge to argue as to whether the materials do permit framing of a charge." (34) In Rajesh Bajaj v. State NCT of Delhi and Ors. (supra), Two Judges Bench of the Honble Supreme Court while explaining the definition of complaint as appearing under Section 2(d) of the Code of Criminal Procedure held as follows : "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stale. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rate cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." " It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction, But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions." " The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not." (35) In Union of India v. Prakash P. Hinduja and Anr. (supra), the Honble Supreme Court explained the exercise of inherent power under Section 482 of the Code of Criminal Procedure and observed the following : " The grounds on which power under Section 482, Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) Where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Acts to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with grant circumspection." (36) In Trisuns Chemical Industry v. Rajesh Agarwal and Ors. (supra), the Honble Supreme Court held that the power to quash the FIR or a complaint in exercise of inherent powers of High Court should be limited to very extreme exception. The Honble Supreme Court while explaining the scope of the power of the High Court under Section 482 of the Code of Criminal Procedure held as follows : " 1. Quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases." (37) In M/s. Medchl Chemicals and Pharma Pvt. Ltd. v. M/s. Biological E. Ltd. and Ors. (supra), Two Judges Bench of the Honble Supreme Court held that a petition of complaint cannot be quashed merely on grounds that civil remedy is available. The Honble Apex Court held as follows : " Both Criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in case like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred." (38) In M/s. Sri Krishna Agencies v. State of A. P. and Anr. (supra), the Honble Supreme Court held that there can be no bar to the simultaneous continuance of a criminal proceeding and a civil proceeding if the two arise from separate causes of action. (39) In The State Financial Corporation and Anr. v. M/s. Jagdamba Oil Mills and Anr. (supra), the Honble Supreme Court held that the Court should not. place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. (40) The relevant portion of the judgment of the Honble Supreme Court is set out below : "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclids theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Observations of Courts are not to be read as Euclids theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words; phrase and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgements. They interpret words of statutes, their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper." (41) The petitioners herein are facing trial for commission of offence punishable under Section 420/406/120B of the Indian Penal Code. The offence of cheating is defined under Section 415 of the Indian Penal Code and the relevant portion is set out below : " 415. Cheating.-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 which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." (42) The Section consists of two distinct parts; each part dealing with one way of cheating. (1) The first part contemplates whereby deception practiced upon a person the accused dishonestly or fraudulently induces that person to deliver property to any person or to consent that any person shall retain any property. (2) The second part, on the other hand, envisages where by deception practiced upon a person the accused intentionally induces that person to do or omit to do anything which he would not do or omit to do, if he were not so deceived and which act or omission caused or was likely to cause damage or harm to that person in body, mind, reputation or property, (43) In this connection it may be pointed out that there is distinction between cheating and breach of contract. It is absolutely correct that a mere breach of contract does not necessarily amount to cheating. The guiding factor which connotes the breach of contract into an offence of cheating is the dishonest or fraudulent intention of the accused at the moment he induces the complainant to enter into the contract. (44) I find force in the argument advanced by the learned Advocate for the Opposite Party that intention to deceive may be gathered from the subsequent conduct of the accused. A crucial test is to determine whether it is a simple case of breach of contract or whether the criminal intent can be gathered from the subsequent conduct of the accused. (45) So far as the present case is concerned, this Court cannot be unmindful of the fact about the limitation to exercise its inherent power under Section 482 of the Code of Criminal Procedure. It may not be out of place to mention the case in State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335. (46) The Honble Supreme Court explained the guidelines in which such power may be exercised by the High Court. The relevant portion of the judgement of the Honble Supreme Court is set out below : "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground, for proceeding against the accused, (6) Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (47) So far as the present, case is concerned, it is the contention of the petitioners that it is nothing but a case of breach of contract and such breach of contract was occasioned when the Opposite Party herein failed to fulfil his own part of the contract. The fact remains that at the very inception of the contract there was an agreement between the parties in which it was agreed that on payment of consideration by the Opposite Party, a flat which was constructed by the company of the petitioners would be delivered to the Opposite Party. The fact remains that such delivery was not effected. Even though the Opposite Party herein paid the entire amount of consideration as initially, agreed between the parties. (48) Learned Advocate appearing for the respective parties drew the attention of this Court to various communications entered into between the parties in support of their respective submissions. (49) It may be pointed out in this context that establishment of those facts or the value of such correspondences is required to be examined when evidence is adduced before the learned Court below. It may be premature on the part of this Court to enter into an exhaustive discussion to consider the acceptability of such contentions. (49) It may be pointed out in this context that establishment of those facts or the value of such correspondences is required to be examined when evidence is adduced before the learned Court below. It may be premature on the part of this Court to enter into an exhaustive discussion to consider the acceptability of such contentions. The decision of this High Court in Tara Dutta v. The State and Anr. (supra) prevents this Court from entering into any such exercise. (50) So far as the present case is concerned, I shall only highlight the communications dated 23.2.2004 by petitioner No. 5 to Opposite Party in which it is stated that there is no outstanding amount as per the agreement based on the measurement mentioned therein. In the said communication, however, demand was made about total outstanding for the different arrears to Rs. 1,86,277/-. It further appears that by the communication dated 25.2.2004, the Opposite Party herein explained the short comings and the absence of basic amenities such as water supply and electricity. (51) My attention was also invited to the communication dated. 22.3.2004 which is a letter written by petitioner No. 5 on behalf of the company addressed to the Opposite Party. In this communication there was further demand of payment of Rs. 4,45,510/-, requesting the Opposite Party to deposit the entire amount within 15 days failing which the agreement shall stand cancelled and the amount paid forfeited. (52) It is not clear to me as to how such forfeiture can at all be resorted to by the petitioners particularly when no such clause can be shown to be available in the agreement, entered into between the parties. (53) In order to constitute an offence under Section 406 of the Indian Penal Code, the ingredient to constitute the offence as prescribed under Section 405 of the I.P.C. must be present. (53) In order to constitute an offence under Section 406 of the Indian Penal Code, the ingredient to constitute the offence as prescribed under Section 405 of the I.P.C. must be present. So far as present case is concerned, the money which was paid by the Opposite Party shall attract the element of entrustment within the meaning of Section 405 of the I.P.C. A person is said to commit the offence of criminal breach of trust when being entrusted in any matter with property or with dominion over it, he dishonestly misappropriates the same or converts it to his own use, Or dishonestly use it or dispose of it in violation of any direction of law prescribing the mode in which the trust is to be carried out, or of any lawful contract made by him, or willfully suffers any other person to do so. (54) Judging from the touchstone of the offence falling within the purview of Sections 420 and 406, I.P.C., and after considering the fact situation of this case, it appears to me that, so far as the present case is concerned, it cannot be stated that there is no prima face case justifying initiation of criminal case against the accused persons including the petitioners herein. (55) In my view the rival contentions based on the documents as annexed by the parties herein calls for necessary consideration during the stage of trial. In other words, in order to consider and thereafter either to accept or reject the contention of the petitioners, the evidence is required to be looked into as the same falls within the category of disputed fact. The decision on such disputed fact by this Court cannot be justified only on the basis of affidavit and on the recital in the revisional application. (56) The power of this Court under Section 482 of the Code of Criminal Procedure is required to be exercised in extreme cases and never to stifle a legitimate prosecution. (57) So far as the present case is concerned, I am unable to accept the contention by the learned Advocate for the petitioners that the facts as involved in connection with the criminal offence now under Consideration by the learned Court below is nothing but a simpliciter case of breach of contract. (57) So far as the present case is concerned, I am unable to accept the contention by the learned Advocate for the petitioners that the facts as involved in connection with the criminal offence now under Consideration by the learned Court below is nothing but a simpliciter case of breach of contract. It is evident that nature of entire transaction between the parties does not lead to automatic conclusion that it is a case of simplicitor breach of contract and in such contingency, it would be premature on the part of this Court to quash the entire proceeding at its threshold. (58) In view of my above discussion and on consideration of the entire matter, I am of the view that this is not a fit case to invoke the inherent power of this Court under Section 482 of the Code of Criminal Procedure. (59) The revisional application is disposed of accordingly. (60) Interim order granted earlier stands vacated. (61) In view of the disposal of the revisional application, no separate order is required to be passed in connection with the application being C.R.A.N, 1529 of 2008. The same stands disposed of along with the revisional application. (62) There shall be no order as to costs. (63) I make it clear that the observation and finding recorded by me is restricted to the decision in connection with the application filed under Section 482 of the Code of Criminal Procedure. I have not recorded any finding about the merit of the case filed by the Opposite Party herein and the learned Court below shall proceed independently with the trial in accordance with law without being any way influenced by any of the observation as recorded in the body of the order. (64) Criminal Section is directed to forward a copy of the order to the learned Court below along with the L.C.R. Learned Court below is directed to proceed with the case in accordance with law as expeditiously as possible. Criminal Section is also directed to supply urgent Photostat copy of the order to the parties as and when applied for.