ORDER 1. Crl.R.C.(MD) No. 931 of 2010 has been preferred against the order dated 6.9.2010 made in Crl.M.P. No. 4494 of 2010 on the file of the Judicial Magistrate No. II, Karur. The said Crl.M.P. was filed under Section 239 of Cr.P.C. seeking discharge of the petitioner/A1, before the Court below. Crl.R.C. No. 938 of 2010 has been filed challenging the order dated 6.9.2010 made in Crl.M.P. No. 4980 of 2010 on the file of the Judicial Magistrate No. II, Karur. The said Crl.M.P. was filed by the petitioner/ de facto complainant against the first respondent herein seeking an order for further investigation, directing the second respondent/complainant to collect necessary materials regarding the signature of the accused and conduct the investigation in a more effective manner narrating all the details of the transactions or in the alternative, order for further investigation by a Superior Investigating Agency viz., C.B.C.I.D. or any other Investigating Agency as the Court below deems fit and proper. 2. It is seen that by order dated 6.9.2010 made in Crl.M.P. No. 4494 of 2010, the Court below allowed the Crl.M.P. and discharge the first respondent/A1. Aggrieved by the said orders, the petitioner/ de facto complainant has preferred both the criminal revisions. 3. Learned counsel appearing for the revision petitioner submitted that the petitioner herein is facing charges under Sections 406 , 420 , 506(ii), 294(b) I.P.C., as per F.I.R. No. 10 of 2009 dated 22.7.2009, on the file of the second respondent/police. On behalf of the petitioner/ de facto complainant, it was submitted that in the year 2005 onwards the first respondent/A1 was making false promise to the petitioner/ de facto complainant that he would be taken as a shareholder or partner in his two establishments and for which received a total sum of Rs. 83,00,764/- on several occasions from the petitioner/ de facto complainant in cash and by cheque at Kakkavadi within the territorial jurisdiction of District Crime Branch, Karur. It is further stated that when the petitioner/ de facto complainant approached the first respondent on several occasions to take him as a partner in his firms, A1 uttered falsehood and caused delay. In the month of August 2007, the first respondent/A1 asked the revision petitioner to shift his office to his firm to show that he would give him share in his firms. In the month of August 2007, the first respondent/A1 asked the revision petitioner to shift his office to his firm to show that he would give him share in his firms. Having believed his false promise, the petitioner shifted his office and all the things concerned and textile samples worth Rs. 7,00,000/-, worth about Rs. 15,00,000/- to A1 firm in Kakkavadi. However, the first respondent/A1 did not give him share in the firms. In the month of December 2008 and January 2009, the first respondent/A1 allowed the revision petitioner to take some articles kept by him in his firm. Subsequently, A1 with an intention to deprive the petitioner, sold the remaining articles kept by the petitioner in his office and also the samples without the knowledge of the petitioner. According to the revision petitioner, the first respondent/A1 has committed criminal breach of trust in respect of the textile samples and other articles entrusted. As promised the amount of Rs. 83,00,764/- received from A1 was not repaid and thereby committed offence punishable under Sections 406 and 420 I.P.C. and further on 22.6.2009 at about 4 p.m. at Kakkavadi, the first respondent/A1 abused the petitioner in a filthy language, as the petitioner and his brother Manjunath approached the first respondent and asked why he had not taken the petitioner as partner in his firms. According to the petitioner, in the course of the same transaction at the same date, time and place, when the revision petitioner asked A1 for the return of the amount received from him and for the sale of his articles entrusted to him without the knowledge of the petitioner, the first respondent/A1 along with A2 to A4 criminally intimidated the petitioner by waiving iron rods and thereby A1 to A4 have committed offence punishable under Section 506(ii) I.P.C. 4. In the impugned order, the Court below has specifically stated that the petitioner has not prima facie established the allegation that the first respondent/A1 had received a sum of Rs. 83,00,764/- by way of producing any supporting materials. The Court below has further found that the alleged transaction between the revision petitioner and the first respondent/A1 as stated is civil in nature and that no criminal case has been made out punishable under Sections 406 and 420 I.P.C. With the above findings, the first respondent/A1 was discharged. 5. Mr. 83,00,764/- by way of producing any supporting materials. The Court below has further found that the alleged transaction between the revision petitioner and the first respondent/A1 as stated is civil in nature and that no criminal case has been made out punishable under Sections 406 and 420 I.P.C. With the above findings, the first respondent/A1 was discharged. 5. Mr. AR.L. Sundarasen, learned counsel appearing for the first respondent submitted that though the revision petitioner/ de facto complainant has stated that the first respondent had received a sum of Rs. 83,00,764/-, no document was produced in support of the allegations so as to attract Sections 406 and 420 I.P.C. As per Section 406 I.P.C. whoever commits criminal breach of trust shall be punished, which reads as follows: “Ingredients of Section – the ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.” 6. In the instant case, there is no supporting evidence or materials to show that there was any property that was entrusted by the petitioner/ de facto complainant with the first respondent and that was dishonestly misappropriated or converted by the first respondent. Similarly Section 420 I.P.C. deals with the punishment for cheating and dishonestly inducing delivery of property. After the said provision of law, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. “As contemplated under Section 420 I.P.C., the ingredients of an offence of cheating are (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property”. 7. In Dalip Kaur and Others v. Jagnar Singh and Another (2010) 1 MLJ (Crl) 133 SC, the Hon’ble Supreme Court has made it clear that an offence of cheating would be constituted when the accused had fraudulent or dishonest intention at the time of making promise or representation. Hence a pure and simple breach of contract does not constitute an offence of cheating. The ingredients of Section 420 of the Indian Penal Code are: “(i) Deception of any person or persons; (ii) Fraudulently or dishonestly inducing any person or persons to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person or persons to do or omit to do anything he or they would not do or omit.” 8. If the dispute between the parties was a civil dispute resulting from a breach of contract on the part of the first respondent/accused by non refunding the amount of advance, the same would not constitute an offence of cheating and similarly it is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code which reads as follows: “405 – Criminal breach of trust – Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 9. In Reeta Nag v. State of West Bengal and Others (2009) 9 SCC 129 : (2009) 4 MLJ (Crl) 1004 (SC) , the Hon’ble Apex Court has laid down ratio on the scope of Section 173 Cr.P.C. relating to the report of Police Officer on completion of investigation. As contemplated under Sub Section 1 of Section 173 , every investigation under Chapter XII of the Code shall be completed without unnecessary delay. However the Magistrate is empowered to order for further investigation under Section 173(8) in case the Investigating Officer obtains further evidence oral or documentary and forward the same to the Magistrate by way of further report or reports. In this regard Hon’ble Supreme Court has held as follows: “20....it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.” 10. It has been categorically held that only based on the application made by the Investigating Authority, further investigation under Section 173(8) of the Code could be ordered. It has been categorically held that only based on the application made by the Investigating Authority, further investigation under Section 173(8) of the Code could be ordered. However, the Magistrate neither suo motu by himself nor on the application filed by the de facto complainant, could order for further investigation under Section 173(8) of Cr.P.C. 11. In the instant case, the first respondent/ de facto complainant had filed the Criminal Miscellaneous Petition seeking further investigation and also direction to the second respondent to collect necessary materials. In view of the decisions rendered by the Hon’ble Supreme Court, the relief sought for by the first respondent is not legally sustainable. 12. In P. Vijayan v. State of Kerala AIR 2010 SC 663 : (2010) 1 SCC (Cr) 1488 : (2010) 4 MLJ (Crl) 220 , it has been held as follows: “10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under: “227. Discharge – If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” “25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that there is no sufficient ground for proceeding against the accused. On consideration if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure”. 13. It is also made clear that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. 13. It is also made clear that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” would clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. 14. Similarly, in Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : the Apex Court has enunciated the following principles: “(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 15. Similarly in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya AIR 1990 SC 1962 : 1991 SCC (Crl.) 47 : (1990) 1 MLJ (Crl) 638 , in para 6, the Hon’ble Supreme Court has held as follows: “6.... Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In State of Bihar v. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which lead the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal , … this Court after considering the scope of Section 227observed that the words ‘not sufficient ground for proceeding against the accused’ clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but it may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence.” 16. As held by the Hon’ble Supreme Court in the aforesaid decision, it has been made clear that Section 227 of the Criminal Procedure Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that there is no sufficient ground for proceeding against the accused. On consideration if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame charge under Section 228, if not, he will discharge the accused. On consideration if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a complaint does not disclose a prima facie case, to save the accused from avoidable harassment and expenditure. 17. In the instant case, there is no iota of supporting prima facie material to show that the first respondent/A1 had deceived or dishonestly induced the petitioner to deliver any property to him or to any person. In the aforesaid circumstances, the Court below has rightly recorded discharge on the ground that there is no prima facie case made out against the first respondent/A1. Learned counsel for the revision petitioner submitted that the case has not been properly investigated by the second respondent, hence the petitioner herein had sought further investigation under Section 173(8) of Cr.P.C. It is clear that Section 173(8) of Cr.P.C. contemplates further investigation only on certain circumstances by the Court, to meet the ends of justice. It is not in dispute that as per Section 173(8) , the Court below is empowered to order for further investigation, as per Sub Section 1 of Section 173 , investigation shall be completed without unnecessary delay. As per sub- section 8 of Section 173 nothing in the Section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) is forwarded to the Magistrate and where upon such investigation, the officer in charge of the police station obtains further evidence, either oral or documentary, he shall forward the same to the Magistrate by way of a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections (2) to (6) of Section 173 Cr.P.C. shall apply in relation to such report or reports. Hence based on the police report, the Magistrate may order for further investigation, if he is satisfied as per Section 173(8) Cr.P.C. based on the report of the Investigating Officer. It has been made clear that on the petition filed by the de facto complainant, further investigation cannot be ordered by the Magistrate. 18. Hence based on the police report, the Magistrate may order for further investigation, if he is satisfied as per Section 173(8) Cr.P.C. based on the report of the Investigating Officer. It has been made clear that on the petition filed by the de facto complainant, further investigation cannot be ordered by the Magistrate. 18. In the instant case, admittedly no further evidence either oral or documentary was obtained by the police and no report was filed by the second respondent/Inspector of Police seeking further investigation as contemplated under Section 173(8) Cr.P.C., only based on the further evidence and police report, if the Judicial Magistrate is satisfied, he may order for further investigation. When there is no prima facie case made out against the first respondent/A1, as no prima facie materials or evidence, produced by the petitioner/ de facto complainant or collected by the second respondent, there could be no error in recording discharge. Similarly revision petitioner being the de facto complainant is not entitled to seek a direction for further investigation against the second respondent under Section 173(8) of Cr.P.C. 19. Therefore, I could find no error or infirmity in the impugned order passed by the Court below, so as to warrant any interference by this Court. 20. In the result, both the Criminal Revision Cases are dismissed. Revision dismissed.