Judgment Both the applications arising out of the same case i.e. Complaint Case being C / 810 of 2006 were heard together and are being disposed of, by a common order. 2. These applications have been filed on behalf of the petitioners for quashing of the entire criminal proceeding of Complaint Case No.C /810 of 2006, including the order dated 23.11.2007, whereby and whereunder, learned Chief Judicial Magistrate, Garhwa, took cognizance of the offences punishable under Sections 420, 465, 467 and 468 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act has been taken against the petitioners and others. 3. The case of the complainant is that the complainant -Binod Singh along with witness No.1, Gorang Krishna Sinha, were running a firm in the name of “Maa Durga Traders”. The other day, an advertisement was published in the newspaper, whereby, applications were invited from desirous persons for appointment of C & F agent. Since it was quite lucrative, the complainant applied for appointment as C & F agent of M/s Biologics Company. Offer being accepted, the complainant on payment of Rs.25,000/-entered into an agreement with the accused No.1, the Managing Director of M/s Biologics Company, whereby it was agreed upon that on payment of Rs.2,75,000/-, the company would supply the goods to the complainant. Thereupon, payment of Rs.2,75,000/-was made, but the company never supplied any goods. Thereafter, the complainant approached the accused No.1, the Managing Director of the said company who promised to return the money. As per promise, a cheque of Rs.2,15,000/-and subsequently a cheque of Rs.40,000/-were given to the complainant out of which one of the cheques of Rs.2,15,000/-on its deposit, got dishonoured, whereas, cheque of Rs.40,000/-was not accepted by the Bank as according to the Bank, it was forged. Thus, it was alleged that all the accused persons in conspiracy with each other committed offence of forgery and cheating. 4. On such allegation, a case was registered as Complaint Case No.C / 810 of 2006, under Sections 420, 465, 467 and 468 of the Indian Penal Code. Upon holding enquiry, cognizance of the offences, as aforesaid was taken by order dated 23.11.2007, against the petitioners and others. That order is under challenge. 5. Mr. 4. On such allegation, a case was registered as Complaint Case No.C / 810 of 2006, under Sections 420, 465, 467 and 468 of the Indian Penal Code. Upon holding enquiry, cognizance of the offences, as aforesaid was taken by order dated 23.11.2007, against the petitioners and others. That order is under challenge. 5. Mr. Rajesh Kumar, learned counsel appearing for the petitioners submits that there has been absolutely no allegation against these two petitioners of committing offence of cheating or forgery, still cognizance of the offence has been taken against the petitioners and hence, it is fit to be quashed only on this score alone. 6. It was further submitted that even if, the allegations made in the complaint are taken to be true in its entirety, no case either of forgery or cheating is made out and as such, entire criminal proceeding including order taking cognizance is fit to be quashed. 7. As against this, Mr. Devesh Krishna, learned counsel appearing for the opposite party, submits that it is true that no allegation has been attributed against these two petitioners in the complaint, but during inquiry, it transpired that the complainant after noticing the advertisement in the newspaper came to the residence of the petitioner, Abhijit Das @ Babu @ Narayan Das, who conveyed the complainant that Nikhil Sen Gupta (petitioner in Cr.M.P. No.806 of 2010) is the Zonal Sales Manager to whom, he will make request to appoint him as the C & F Agent and that cheque of Rs.2,15,000/-was given to Nikhil Sen Gupta which was transmitted to the accused No.1, the Managing Director. Still, the company never supplied any goods to the complainant. In the event of non-supply, when the complainant approached accused No.1, the Managing Director of the company, he made promise to repay the money which had been paid to the company. Thereupon cheques of Rs.2,15,000/-and also of Rs.40,000/-were given to him, out of which one of the cheques of Rs.2,15,000/-on its deposit in the Bank, got dishonoured, whereas, other cheque of Rs.40,000/-was never accepted by the Bank as according to the Bank, it was forged cheque. 8. Under this situation, conspiracy of all the accused persons appears to be apparent and, therefore, the court did not commit any illegality in taking cognizance of the offence against these two petitioners. 9. 8. Under this situation, conspiracy of all the accused persons appears to be apparent and, therefore, the court did not commit any illegality in taking cognizance of the offence against these two petitioners. 9. Learned counsel further submits that cheques had been issued by accused No.1, but since the cheque had been issued by him in the capacity of the Managing Director, it would be deemed that it has been issued by the company and in that event, all the persons who on the date of occurrence were responsible for or in-charge of day to day affairs of the company would be responsible for the offence under the Negotiable Instruments Act, in view of the provision as contained in Section 141 of the Negotiable Instruments Act and thereby all the accused persons can easily be held responsible for an offence under the N.I. Act also. 10. Thus, it appears that on the aforesaid allegation a complaint was lodged that all the accused persons committed offence of cheating, forgery as well as offence under the N.I. Act. The question does arise as to whether allegation made in the complaint does constitute offence of cheating so far these petitioners are concerned? 11. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows : “Cheating - Whoever, by deceiving any persons, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons 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”. 12. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, 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. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 13. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception ? 14. In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. 15. Applying the principle constituting a criminal offence of cheating, it be recorded that in the complaint, no allegation is there against the petitioners, Abhijit Das @ Babu @ Narayan Das or against the Nikhil Sen Gupta that they ever induced the complainant fraudulently or dishonestly to part with the money. In the complaint, the complainant is absolutely silent about the role being played by these two petitioners. However, during enquiry, it has come that when the complainant came to the house of Abhijit Das, he conveyed the complainant that he will introduce him to Nikhil Sen Gupta, the Zonal Sales Manager of the company, who will be helping him in getting the C & F Agency of the company in his favour. Even if this fact is taken to be true, none of the petitioners can be said to have induced the complainant fraudulently and dishonestly to part with the money. 16. Accordingly, no case of cheating is made out against these petitioners. At this stage, I may refer to a case of Iridium India Telecom Limited Vs. Motorola Incorporated and others [ (2011) 1 SCC 74 ] where the Hon'ble Supreme Court taking notice of the provision as contained in Section 415 of the Indian Penal Code has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the Section. 17. In the context of allegation, one case of Indian Oil Corporation Vs. NEPC India Limited and Ors. 17. In the context of allegation, one case of Indian Oil Corporation Vs. NEPC India Limited and Ors. [ (2006) 6 SCC 736 ] also needs to be referred to, wherein, it has been observed by the Hon'ble Supreme Court that there is a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and to do not adequately protect the interest of lenders/ creditors. Such tendency is seen in several family dispute also leading to irretrievable brake down of marriages/ families. There is also an impression that if a person could somehow be entangled into a criminal prosecution, there is likelihood in imminent settlement. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which did not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. 18. Here in the instant case, as noticed above no ingredient appears to be there for constituting criminal offence of cheating rather the case appears to be of breach of contract. Further no allegation is there, so far these petitioners are concerned, constituting offence of forgery. 19. Further, the petitioners never appears to be the signatories of the cheques which got dishonoured. However, statement was made that the petitioners can be held guilty for an offence under Section 138 of the Negotiable Instruments Act by virtue of the principles of vicarious liability as has been prescribed under Section 141 of the Negotiable Instruments Act. 20. It be stated that where a company is made an accused all other persons responsible for or in-charge of day to day affairs of the company can be fastened with criminal liability, but for that there should be specific averment in the complaint that particular person was responsible for or in-charge of day to day affairs of the company. Only in that event, one can be fastened with the criminal liability. 21. In this regard, I may refer to a case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. 2005 (8) Supreme Court Cases 89 and also in a case of Harshendra Kumar D. Vs. Rebatilata Koley and Ors. 2011 (3) Supreme Court Cases 351. 22. Only in that event, one can be fastened with the criminal liability. 21. In this regard, I may refer to a case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. 2005 (8) Supreme Court Cases 89 and also in a case of Harshendra Kumar D. Vs. Rebatilata Koley and Ors. 2011 (3) Supreme Court Cases 351. 22. But here in this case, no such averment is there in the complaint petition. 23. Under the situation, as stated, the entire criminal proceeding of Complaint Case being C /810 of 2006, including the order taking cognizance dated 23.11.2007, is hereby set aside, so far as these petitioners are concerned. 24. In the result, this application stands allowed.