Judgment Syamal Kanti Chakrabarti, J. 1. THE present revisional application under Section 401/482 Cr. P.C. is directed against order dated 08.06.2005 passed by the learned Judicial Magistrate, 1st Court, Sealdah, South 24 Parganas in connection with G. R. Case No. 672/03 (T.R. 423 of 2004) arising out of Beleghata P.S. Case No. 60/03. 2. THE present three petitioners have contended that the husband of respondent no. 3 Sadhana Sarkar, since deceased, was owner of an old delapidated house situated at premises no. 1A, Abinash Chandra Banerjee Lane, Kolkata 700 010. During his lifetime the old structure standing thereon was demolished for reconstruction on the basis of a sanctioned plan by the Kolkata Municipal Corporation. On account of sudden demise of the said original owner Nanigopal Sarkar, his successor being petitioner nos. 2 and 3 faced acute financial crisis. At that time one well-wisher Jnanendra Nath Samanta advanced Rs.3,00,000/- to petitioner nos. 2 and 3 to meet their expenses. A proposal was also forwarded on the part of OP No. 2 to sell a flat covering an area of 650 square feet to him. Subsequently, the said J. N. Samanta insisted for selling the flat at a price of Rs. 6,00,000/- instead of agreed amount of Rs. 9,00,000/-. So petitioner nos. 2 and 3 refused to dispose of the same. Consequently OP no. 2 demanded refund of his advance of Rs. 3,00,000/- by notice dated 10.09.2002. In response the petitioners repaid a sum of Rs. 2,00,000/- by cheque no. 891174 dated 28.09.2002 on SBI in favour of OP no. 2 who encashed it. On account of sudden illness and treatment of the daughter of petitioner no. 2 balance amount of Rs.1,00,000/- could not be repaid to OP no. 2 within agreed time. But without extending the time for repayment OP no. 2 filed complaint case no. C-187 of 2003 under Section 156(3) Cr. P.C. before the learned Additional Chief Judicial Magistrate, Sealdah under Section 420/349 IPC against all the petitioners. On the basis of such complaint Belaghata PS case no. 60/2003 has been initiated and after investigation charge-sheet has been filed. The learned Magistrate has fixed a date for consideration of charge. 3. MEANWHILE, OP no. 2/ complainant has filed another Money Suit on same issue being no. 2 of 2004 before the learned Civil Judge, Senior Division praying for recovery of advance with interest up to 20.01.2004, attachment, cost etc. The learned Magistrate has fixed a date for consideration of charge. 3. MEANWHILE, OP no. 2/ complainant has filed another Money Suit on same issue being no. 2 of 2004 before the learned Civil Judge, Senior Division praying for recovery of advance with interest up to 20.01.2004, attachment, cost etc. Petitioners are also contesting said suit and filed written statement. 4. IN the said criminal proceedings the petitioners filed a petition praying for their discharge which has been rejected by order dated 08.06.2005 which is now under assail. Learned lawyer for the petitioners has contended that in a case under Section 420 IPC complainant must show that there has been fraudulent misrepresentation, deception etc. on the basis of which aggrieved party has parted with valuable articles, money etc. as defined in Section 415 of the Indian Penal Code. In the instant case admittedly the OP no. 2 received back Rs.2,00,000/- given as advance out of Rs.3,00,000/- and this may now be treated as breach of contract but this cannot be treated as an act of misrepresentation or deception on the part of the petitioners. Acceptance of the cheque by OP no. 2 is ipso facto an acknowledgement of partial repayment of advance give. Therefore, recovery of balance advance is a civil dispute for which no criminal case under Section 420 IPC will lie. Moreover, civil suit has already been filed and further continuation of criminal proceedings over same issue will be harassment of the petitioners and abuse of the process of law. Therefore, the instant proceeding is liable to be quashed. 5. HE has referred to and relied upon the principles laid down in (2009) 2 SCC (Cri) 332 (Mahesh Chowdhury Vs. State of Rajasthan and Anr.) and (2010) 2 C. Cr. L.R. (Cal) 715 (Md. Siraj Vs. State of West Bengal) in support of his contention. It has been set at rest in (2009) 2 SCC (Cri) 332 by the Honble Apex Court that Court can quash charge-sheet if allegations in FIR or complaint petition do not disclose commission of offence. While doing so High Court is not to embark upon appreciation of evidence but to consider only materials on record as a whole though the High Court is required to consider as to whether the allegations made in the FIR or the complaint petition fulfil the ingredients of the offences alleged against the accused. While doing so High Court is not to embark upon appreciation of evidence but to consider only materials on record as a whole though the High Court is required to consider as to whether the allegations made in the FIR or the complaint petition fulfil the ingredients of the offences alleged against the accused. In the case of Md. Siraj also the Honble Court while dealing with identical case has held inter alia that while the petitioner agreed to sell his land to the opposite parties but ultimately the sale did not take place, there is nothing to show that at the initial stage of the contract the petitioner had fraudulent intention to deprive the opposite parties, there is no ingredient of the offence under Section 420/120B IPC. The remedy if any lies in the Civil Court. In this case there is no such deception at initial stage but after verbal contract at a subsequent stage dispute arose in respect of amount of consideration only. 6. DESPITE service of notice the OP no. 2 has not turned up. However, the learned lawyer for the OP no. 1, State of West Bengal has opposed the move and submitted the case diary as called for to show that prima facie materials are forthcoming and since charge-sheet has already been filed, the revisional Court should not interfere with the trial at this stage. I have considered rival submissions made by the contending parties and perused the case diary. 7. FROM the result of investigation the IO has concluded that the petitioners received an advance of Rs.3,00,000/- from the OP no. 2 for sale of a flat but instead of selling the flat or refunding the money they have sold the flat to a third party and thus a case under Section 420/34 IPC appears to have been made out against them. 8. IT appears that in course of investigation the IO has collected several money receipts issued by the Smt. Sadhana Sarkar (petitioner no. 3) and smt. Sujata Dey (Petitioner no. 2) for booking their flat on the northern side of the second floor at premises no. 1A, Abinash Chandra Banerjee Lane, Kolkata 700 010 to which Soumen Dey (Petitioner no. 1) was a witness. IT also appears from CD that said receipts were granted in favour of the complainant/OP no. 3) and smt. Sujata Dey (Petitioner no. 2) for booking their flat on the northern side of the second floor at premises no. 1A, Abinash Chandra Banerjee Lane, Kolkata 700 010 to which Soumen Dey (Petitioner no. 1) was a witness. IT also appears from CD that said receipts were granted in favour of the complainant/OP no. 2 for sale of the flat but the property has been sold to a third party, i.e., Tarini Debnath on 20.11.2002 by a purported kobala. Such advance was taken in instalments on 21.01.2002, 27.02.2002, 20.07.2002 etc. Petitioners claim that they have refunded Rs. 2,00,000/- on 28.09.2002 which has been acknowledged by the complainant. Therefore, by necessary implication prima facie it appears that before sale of the property to third party the owners refunded substantial portion of the amount received by them as advance booking to the complainant who has received the cheque and thereby rescinded the contract, if any, by his conduct for reasons best known to him. He has contradicted FIR in his statement recorded under Section 161 Cr. P.C. by claiming that advance of Rs. 2,00,000/- was given for business purposes. In those money receipts there is no mention of amount of consideration for the proposed sale. Petitioner no. 1 is a witness to such advance transaction and he is not a party to the contract between OP no. 2 and petitioner nos. 2 and 3. To constitute an offence of cheating there must be an element of deception and fraudulent representation from the very inception of alleged transactions. From the conduct of the parties it appears that due to previous acquaintance and intimacy advance was extended by him t the petitioner accused and he has received back a substantial portion of such advance. Therefore, the owner, have disposed of the property to a third party while there was no contractual obligation but there existed dispute over the amount of consideration. Therefore, the question of balance payment of such advance is a purely civil dispute which has escaped the notice of Investigating Officer as well as the learned Magistrate taking cognizance of offence. The existence of pending Money Suit no. 2 of 2004 lends further support to such contention. Therefore, the question of balance payment of such advance is a purely civil dispute which has escaped the notice of Investigating Officer as well as the learned Magistrate taking cognizance of offence. The existence of pending Money Suit no. 2 of 2004 lends further support to such contention. Such a proceeding, if allowed to be continued, will lead to grave miscarriage of justice indulging unscrupulous litigant to use criminal court as an engine of oppression for quicker reliefs and early settlement of civil disputes. Therefore, I hold that the ratio in (2010) 2 C. Cr. L.R. (Cal) 715 will be applicable in this case as relied upon by the learned lawyer for the petitioners. 9. IN view of above facts and surrounding circumstances I hold that there are sufficient merits in the instant revisional application as the instant proceeding is not sustainable in law. So the proceedings being G.R. Case No. 672/07 arising out of Beleghata PS case no. 60/03 is hereby quashed and all the petitioners are discharged and released from their respective bail bond. This will, however, not prevent the complainant from approaching competent court of civil jurisdiction for seeking further reliefs and that the observation of this Court will have no bearing on the pending Money Suit No. 2 of 2004 before the Court of learned Civil Judge, Senior Division concerned who will adjudicate the dispute on merit without being influenced by the findings of this Court. 10. URGENT certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities. Return the case diary to the learned Lawyer representing the State. 11. THERE shall be no order as to costs.