JUDGMENT D.N. Upadhyay, J.-This writ application has been filed for quashing of the entire criminal prosecution of the petitioners arising out of Complaint Case No. 298 of 2009 and the Order Dated 10.07.2009, whereby the petitioners have been summoned and directed to face trial for the offences punishable under Sections 403, 418/34 of the Indian Penal Code. 2. The brief facts behind institutions of Complaint Case No. 298 of 2009 is that the Complainant/Respondent No. 2 is the proprietor of M/s. Classic Automobiles, a Dealer of M/s. Tata Motors Ltd. (Car Division) whereas the Accused/Petitioner No. 1 - M/s. Appollo Health & Life Style Limited is a Company incorporated under the Indian Companies Act, 1956 having its registered office at 19, Bishop Gardens, R.A. Puram, Chennai-600028. The Accused/ Petitioner No. 2 is the Chief Executive Officer and the Accused/Petitioner No. 3 is the General Manager of the said Company . It is alleged that the Respondent No. 2, upon fraudulent inducement of the accused/petitioners entered into a Memorandum of Understanding on 7th August, 2007 for setting up a Clinic under the name of "The Appollo Clinic" at Dhanbad. The Respondent No.2, upon fraudulent inducement of the accused persons, has made payment of a sum of Rs. 28,09,000/- as Licence Fee including Service Taxes to the Accused/Petitioner No. 1 vide Demand Draft No. 384949, Dated 6th August, 2007 drawn on ICICI Bank Limited, Dhanbad. As per Clause 6, the Memorandum of Understanding was valid for a period of thirty (30) days. It is further alleged that having deceptive intention and mensrea, no licence within the said period of thirty days was granted and, therefore, the Respondent No. 2 sent e-mail on 01.12.2008 for refund of the amount but no reply was given. Then the Complainant again e-mailed on 25.12.2008 requesting to refund of the amount deposited by him. The Respondent No. 2 had also sent Legal Notice to the petitioners but they did not refund the amount and illegally retained the same causing wrongful loss to the Respondent No. 2 and also for wrongful gain to them. Then the Complainant again e-mailed on 25.12.2008 requesting to refund of the amount deposited by him. The Respondent No. 2 had also sent Legal Notice to the petitioners but they did not refund the amount and illegally retained the same causing wrongful loss to the Respondent No. 2 and also for wrongful gain to them. After making all correspondences, when the amount was not refunded, the Respondent No. 2 filed a Complaint in the Court of Chief Judicial Magistrate, Dhanbad and after enquiry, an Order under Section 204 of Cr.P.C. on 10.07.2009 summonning the accused persons to face trial for the offences under Sections 403, 418/34 of the Indian Penal Code, was passed. 3. The petitioners have challenged the impugned Order dated 10.07.2009 passed in Complaint Case No. 498 of 2009 and also the entire criminal prosecution arising out of the said Complaint case on the ground that the impugned criminal proceeding is an abuse of the process of law, if allowed to continue. The Court below has wrongly passed the order directing the petitioners to face the trial for the offences punishable under Sections 403, 418/34 of the Indian Penal Code. As a matter of fact, the allegations levelled against the petitioners in the Complaint do not constitute the offences for which the petitioners have been summoned. There was no dishonest or fraudulent inducement on the part of the petitioners and it is incorrect to say that the Respondent No. 2 had, delivered the amount on being fraudulently induced. It was the Respondent No.2 who approached the petitioners for grant of licence for running a Health Clinic in the name of Appollo Clinic and he had been intending to use the goodwill of the Petitioner No.1. 4. The Memorandum of Understanding was signed by the parties knowing full well the terms and conditions and according to Clause-4, the amount paid was non refundable and non adjustable and shall not carry any interest thereon. Only by inserting or using words like 'Fraudulent and Dishonest Intention' in the complaint, it would not constitute the offence of cheating. 5. The ingredients of the offence not averred in the complaint filed and the earlier correspondences made between the parties indicating a civil dispute, question of committing criminal offence or criminal prosecution on such averments, cannot be permitted. Only by inserting or using words like 'Fraudulent and Dishonest Intention' in the complaint, it would not constitute the offence of cheating. 5. The ingredients of the offence not averred in the complaint filed and the earlier correspondences made between the parties indicating a civil dispute, question of committing criminal offence or criminal prosecution on such averments, cannot be permitted. If there is breach of contract, simplicitor it would not constitute an offence, allegation in the Complaint must disclose the necessary ingredients of an offence and, therefore, it is the duty of the Court to see whether prima-facie allegations are correct, criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of Court. In support of the above submission, learned counsel has relied in the case of All Cargo Movers (India) Private Limited and others v. Dhanesh Badarmal Jain and another reported in (2007) 14 SCC 776 . 6. It is further contended that the Complainant/Respondent No 2 did not find himself competent to fulfil the terms and conditions of the Memorandum of Understanding and e-mailed on 01.12.2008 stating therein : “We are very sorry to let you know that we are not in a position to carry out this work further because of funding crisis and the Banks are not interested in various Projects”. Thereafter, the Respondent No. 2 had started changing his contention in further correspondences such as in the Legal Notice and also in the Complaint. 7. The learned counsel has submitted that the petitioners had no intention at any point of time to deceive the Respondent No.2. They had never induced the Respondent No.2 with fraudulent intention to part with money. The Memorandum of Understanding signed on 7th August, 2007 was valid only for a month but even then after receiving Notice from the Respondent No.2, the accused persons had expressed their bonafide and in their reply, extended the validity of Memorandum of Understanding up to 18.02.2009. This clearly indicates that the petitioners had no intention either to cheat the Respondent No. 2 or misappropriate the amount rather the forfeiture of amount was consequential on the breach of condition to the Memorandum of Understanding which was well within the knowledge of the Respondent No.2. This clearly indicates that the petitioners had no intention either to cheat the Respondent No. 2 or misappropriate the amount rather the forfeiture of amount was consequential on the breach of condition to the Memorandum of Understanding which was well within the knowledge of the Respondent No.2. The petitioners have relied upon the observations made in para 16 and 17 of the Judgment in the case of All Cargo Movers (India) Private Limited and others (Supra) which reads as under: - "16. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of Respondent No. 82 of 2010 plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefore. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or a otherwise an abuse of the process of the Court, superior courts, which exercising this power, should also strive to serve the ends of justice. 17. In G. Sagar Suri v. State of U.P., this Court opined (SCCp.643, para-8) “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. 17. In G. Sagar Suri v. State of U.P., this Court opined (SCCp.643, para-8) “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, ha been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 19. In Anil Msahajan v. Bhor Industries Ltd., this Court held (SCC p. 231, para-8) "8. The substance of the complaint is to be seen. Mere use of the expression 'cheating' in the complaint is of no consequence. Except mention of the words 'deceive' and 'cheat' 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............ 20. In Hira Lal Hari Lal Bhagwati v. CBI, this Court opined: (SCC p. 280, para-40). "40, It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made, cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Penal Code does not arise." 8. Learned counsel for the petitioner has further relied in the case of V.Y. Jose and another v. State of Gujarat and another, (2009) 3 SCC 78 , Sharon Michael and others v. State of Tamil Nadu and another, (2009) 3 SCC 375 and V.P. Shrivastava v. Indian Explosives Limited and others, (2010) 10 SCC 361 . 9. On the other hand, counsel appearing for the Respondent No.2 has vehemently opposed the arguments advanced by the petitioners. He has submitted that the terms and conditions mentioned in the Memorandum of Understanding itself is sufficient to indicate the fraudulent and dishonest intention of the accused persons. They did not issue licences within one months though required fee was paid by the Complainant/Respondent No.2. The petitioners had to grant a licence during the validity period of the Memorandum of Understanding, but they did not grant such licence with criminal intent of cheating and misappropriation. When the petitioners did not perform their liability, the Respondent No. 2 had left with no option but to ask for refund of the amount deposited by him. It is not denied that the money deposited by the Respondent No.2 has been retained by the petitioners and, therefore, the offence under Section 403 of the Indian Penal Code is wholly made out. Furthermore, the misappropriation of the property was with an intention of cheating with knowledge that wrongful loss may ensue to the Complainant. It was submitted that quashing of criminal proceedings is always an exception rather than a rule and the case for quashing at an initial stage must be treated as rarest of rare so as to scuttle the prosecution. Furthermore, the misappropriation of the property was with an intention of cheating with knowledge that wrongful loss may ensue to the Complainant. It was submitted that quashing of criminal proceedings is always an exception rather than a rule and the case for quashing at an initial stage must be treated as rarest of rare so as to scuttle the prosecution. The allegations made in the complaint have to be ex-facie taken into consideration without going into their truth or falsity. Whether or not the allegations in the complaint are true, is to be decided on the basis of evidence led at the trial. If the allegations in the complaint make out a case against the petitioners or disclose the ingredients of the offence alleged, there is sufficient grounds for proceeding against the petitioners. Simply because there is a remedy provided for breach of contract that does not lead to the conclusion that civil remedy is the only remedy available to the complainant. Both criminal law and the civil remedy are not mutually exclusive but clearly coextensive and can be pursued in diverse situations. Learned counsel for the Respondent No.2 has placed reliance in the case of Medical Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and others, (2000) 3 SCC 269 . Learned counsel for the Respondent No.2, by placing reliance in the case of State of Karnataka v. M. Devendrappa and another, (2002) 3 SCC 89 , has submitted that the High Court, being the highest court of a State, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. It is not necessary that there should be meticulous analysis of the case before trial to find out whether the case would end in conviction or acquittal. It is not necessary that there should be meticulous analysis of the case before trial to find out whether the case would end in conviction or acquittal. Relying in the case of Rajesh Bajaj v. State NCT of Delhi & others, (1999) 3 SCC 259 learned counsel submitted that if averments in the complaint prima facie make out the factual foundations of a case, it is not necessary that all the ingredients of the offences alleged should be reproduced in the complaint verbatim nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. It may be that the facts narrated in the 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 such a transaction. In fact, many a cheatings were committed in the course of money or commercial transactions. Learned counsel for the Respondent No.2 further submitted that while construing a document, the true meaning of a clause has to be arrived at by construing the document in all its parts and its proper contextual setting. In this regard he has placed reliance in the case of Union of India v. Raman Iron Foundry, (1974) 2 SCC 231 . There are cases where reference to a future contract is made in such terms so as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. He has relied in the case of Kollipara Sriramulu v. T. Aswatha Narayana, AIR 1968 SC 1028 . 10. Learned counsel has further submitted that even if there is a breach of contract or non fulfilment of any particular Clause of the Agreement, forfeiture of excessive amount should not be permitted. Admittedly, the Memorandum of Understanding, which was signed between the parties, was not a final contract. While construing a document, the true meaning of a Clause has to be arrived at by construing the documents in all its part and its proper contextual setting. Reliance has been placed in the case of Union of India v. Raman Iron Foundry reported in (1974) 2 SCC 231 . While construing a document, the true meaning of a Clause has to be arrived at by construing the documents in all its part and its proper contextual setting. Reliance has been placed in the case of Union of India v. Raman Iron Foundry reported in (1974) 2 SCC 231 . Learned counsel relying in the case of Kalipara Sriramulu v. T. Aswatha Narayana reported in AIR 1968 SC 1028 , has submitted that there are cases where reference to a future contract is made in such terms so as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. 11. The Memorandum of Understanding provided a stringent time frame of thirty days to enter into a legal binding licence agreement which would govern the commercial intercourse of the parties thereto. The failure of the petitioners to grant licence and execute the concerned licence agreement during the subsistence of the Memorandum of Understanding made the petitioners liable for refund of security deposits of a sum of Rs.28,09,000/- on the restitutionality principal of quantum merit recognised in the Indian Case Laws as well as the provisions of the Indian Contract Act. 12. The learned counsel appearing on behalf of the Respondent No. 2 has further relied in the case of Narinder Kumar Malik Vs. Surinder Kumar Malik reported in (2009) 8 SCC 743 and submitted that the petitioners were in breach of Clause 2 of the Memorandum of Understanding whereby they were obligated to grant licence to the Respondent No.2. The obligation of the Respondent No. 2 to set up a clinic as per the technical and operational specifications provided by the petitioners was to commence only under the licence agreement containing detailed provisions in this regard, to be entered into under the Memorandum of Understanding, which was to expire within a short period of thirty days. Thus, when the terms of the Memorandum of Understanding were not honoured by the petitioners, who committed default of its terms and conditions, said Memorandum of Understanding cannot be given effect to. The Respondent No. 2 has rightly lodged this case and it is maintainable. 13. The arguments advanced from both sides creates a question whether contention made in the complaint prima-facie attracts the ingredients of offence of cheating? The Respondent No. 2 has rightly lodged this case and it is maintainable. 13. The arguments advanced from both sides creates a question whether contention made in the complaint prima-facie attracts the ingredients of offence of cheating? Before answering this question, I feel it desirable to mention Section 415 of the Indian Penal Code which defines cheating as under: "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’." An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. Normally the correspondences made between the parties prior to the institution of criminal case, is not being referred but to consider whether fraudulent and dishonest intention at the very inception of the deal was present. I feel that such undisputed correspondences is made between the parties may be permitted to see whether fraudulent and dishonest intention was present or not? 14. I do agree with the arguments advanced on behalf of the respondent no. I feel that such undisputed correspondences is made between the parties may be permitted to see whether fraudulent and dishonest intention was present or not? 14. I do agree with the arguments advanced on behalf of the respondent no. 2 that the ingredients of the offence committed by the accused is not required to be made verbatim in the complaint but at the same time, simply using the word 'fraudulent and dishonest intention' is also not sufficient to constitute offence of cheating. Each and every case is to be looked into on the facts and circumstances and the admitted documents available in that case. It is also evident that the learned Magistrate without assigning any reason, has directed the petitioners to face trial also for the offence punishable under Section 403 of the Indian Penal Code which indicates non application of judicial mind. The complaint has not been filed for an offence punishable under Section 403 of the Indian Penal Code. Non of the illustration given under Section 403 of the Indian Penal Code covers the fact of the case in hand. Under the terms and conditions of the Memorandum of Understanding, the licence fee along with service charge, was paid by the complainant to which the petitioner Company has forfeited due to non performance of the obligation on the part of the complainant and said amount was non-refundable and non adjustable as per the terms of Memorandum of Understanding. In view of the above terms and conditions; the question of dishonest misappropriation of the movable property by the petitioner – Company, does not arise at all. Non refund of the amount may be the consequential to the terms and conditions of the Memorandum of Understanding. If any of the party was aggrieved, the said party has every right to sue the adverse party and that remedy is always available to him. 15. Now coming to the admitted facts. As it is apparent from the pleading of the parties, I find that the Memorandum of Understanding executed between them is not denied. The respondent No. 2 has also made averments in para-6 of the complaint that on 01.12.2008, e-mail was sent to the accused persons for the refund of the amount and the contention of the e-mail, as quoted by the petitioner - Company in the reply of their notice is not denied. The respondent No. 2 has also made averments in para-6 of the complaint that on 01.12.2008, e-mail was sent to the accused persons for the refund of the amount and the contention of the e-mail, as quoted by the petitioner - Company in the reply of their notice is not denied. The Memorandum of Understanding was executed on 7th August, 2007 and the validity of the Memorandum of Understanding was only for a month. The respondent no. 2 had asked for refund of the amount for the first time on 01.12.2008 i.e. after lapse of more than a year and admitted the reason for not performing his part of obligation. Thereafter, the respondent No. 2 had sent legal notice asking for the refund of the amount on 09.01.2009 which was duly replied by the petitioner - Company and vide para-10 of that reply, the validity period of the Memorandum of Understanding was again extended up to 18.02.2009. The above referred correspondence made between the parties clearly indicates that it was the complainant who approached the petitioner - Company to grant a licence for running a Health Clinic at Dhanbad in the name of The Appollo Clinic. Therefore, the inducement do not appear to be made by the petitioner Company. It is necessary to mention here that the respondent no. 2 is also a reputed businessman, as admitted by him and, therefore, it is expected that he must be knowing the know how and the consequences of any commercial agreement. What I mean to say is that execution of Memorandum of Understanding was quite wilful. 16. The next point is that the respondent no. 2 was not prompt in instituting a criminal case just after expiry of the validity of the Memorandum of Understanding when no licence was granted. It will be presumed- that at that point of time, the respondent No. 2 must have reached to a conclusion that he has been cheated but no criminal case was filed rather the respondent No. 2 has started making correspondence for the refund of the amount which was non refundable, non-adjustable according to the terms and condition of the Memorandum of Understanding signed by them. The fair intention of the petitioner is apparent when he extended the validity of the Memorandum of Understanding for further one months even after 1-1/2 years. 17. The fair intention of the petitioner is apparent when he extended the validity of the Memorandum of Understanding for further one months even after 1-1/2 years. 17. In view of the discussions made above and also considering the verdict of the Apex Court in the Judgment referred to above on which the petitioners have placed reliance, I feel that the prosecution of the petitioners arising out of Complaint Case No. 298 of 2009 and the Order dated 10.07.2009, shall amount an abuse of the process of Court and such prosecution should not be permitted to continue. So far question of amount required to be forfeited or the appropriate application of Contract Act, are the matters to be redressed in civil proceedings for which the complainant is at liberty. 18. Considering the aforesaid facts and circumstances, this writ application is allowed and the entire criminal prosecution arising out of Complaint Case No. 298 of 2009 and the Order dated 10.07.2009 passed by Judicial Magistrate, 1st Class, Dhanbad are hereby quashed. Application allowed.