Judgment Heard the parties. 2. This application has been filed for quashing of the entire criminal proceeding of Complaint Case bearing C/1 Case No. 1532 of 2006 including the order dated 8.6.2007 whereby and whereunder, cognizance of the offences punishable under Sections 406, 417, 418, 420 and 426 of the Indian Penal Code has been taken against the petitioners. 3. Before adverting to the submission advanced on behalf of the parties, the case of the complainant needs to be taken notice of. 4. It is the case of the complainant that Stewards and Lloyds of India Limited, a Kolkata based Company, is registered with Tata Steel. The company used to take work for execution of various mechanical and civil work including erection, fabrication and dismantling of structure and building as required by the steel company. On getting such kind of job, the company awarded job to the complainant for dismantling of structures and building, transportation of store materials from one destination to another, transportation of debris, shifting of materials from one place to another. While the work assigned to the complainant was being done, the petitioner nos. 2 and 3 in the capacity of the authority of the company asked the complainant verbally to do the work also other than the work assigned under the written order. The complainant did that and on completion of the job, the complainant submitted bills for Rs.22 lakhs which was not paid in spite of legal notice being given. In such situation, there was no option for the complainant but to lodge a complainant which was lodged and was registered as C/1 Case No. 1532 of 2006 in which cognizance of the offences punishable under Sections 406, 417, 418, 420 and 426 of Indian Penal Code has been taken against the petitioners. 5. Mr. In such situation, there was no option for the complainant but to lodge a complainant which was lodged and was registered as C/1 Case No. 1532 of 2006 in which cognizance of the offences punishable under Sections 406, 417, 418, 420 and 426 of Indian Penal Code has been taken against the petitioners. 5. Mr. Indrajit Sinha, learned counsel appearing for the petitioners, submits that accepting the entire allegation to be true, the petitioners cannot be said to have committed offence under which cognizance of the offences has been taken, as the petitioners have never been alleged to have deceived the complainant fraudulently and dishonestly, rather it is a simple case of non-payment of the dues, claimed by the complainant, which dispute is civil in nature and as such nonpayment of dues can be said to be a mere breach of agreement and under the situation, the order taking cognizance is fit to be set aside. 6. As against this, Mr. Pandey Neeraj Rai, learned counsel appearing for the opposite party no. 2, submits that it is the case of the complainant that the complainant at the behest of petitioner nos. 2 and 3 did accomplish the job which was orally assigned to the complainant by accused no. 2 besides the job assigned under written order and only thereafter put forth demand of the money which the complainant by accomplishing the job had earned, but it was never paid and therefore, it would amount misappropriation of the amount which the complainant claimed to have earned. 7. Further submission is that the petitioners have come forward with a plea that they had never taken job from the complainant and thus the conduct of the petitioners goes to show that the petitioners' intention was there to cheat the complainant. Learned counsel in support of his submission has referred to observation made by the Hon'ble Supreme Court in Paragraph-15 of the decision rendered in a case of Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another { (2000) 4 SCC 168 }. 8. Learned counsel further submits that in the worst case if the court does find that the case of cheating and criminal breach of trust is not made out, a case of dishonest misappropriation in terms of the provision as contained in Section 403 of Indian Penal Code is certainly made out. 9. 8. Learned counsel further submits that in the worst case if the court does find that the case of cheating and criminal breach of trust is not made out, a case of dishonest misappropriation in terms of the provision as contained in Section 403 of Indian Penal Code is certainly made out. 9. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegation made in the complaint does constitute offence of cheating or criminal breach of trust and even of dishonest misappropriation or not ? 10. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:- “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 persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not door 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”. 11. 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 by the person alleged to have deceived the complainant. (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. 12. 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. 13. 12. 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. 13. Here in the instant case, it is a simple case of the complainant that the complainant on being assigned job under written and even orally did accomplish the job but payments were not made. Nothing has been alleged that at the time of assignment of job, deception has been practiced by the accused. Thus, I do find that necessary ingredient is lacking for constituting an offence of cheating. Hence, it be recorded that no offence of cheating is made out even if the entire allegations made out in the complaint are taken to be true. 14. So far as the offence under Section 406 of Indian Penal Code is concerned, that also does not appear to have been made out against the petitioners. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under: “405. Criminal breach of trust -Whoever, being in any manner entrusted with property, or with any do minion 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 willfully suffers any other person so to do, commits “criminal breach of trust”. 15. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. “(a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 16. In the background of the allegation made in the complaint, I do not find it a case of criminal breach of trust, rather it is a pure case of breach of agreement which could have been enforced in the competent court of civil jurisdiction. 17. Further going in the matter, I also do not find any case being made out under Section 403 of Indian Penal Code. Section 403 of Indian Penal Code speaks about dishonest misappropriation of property which reads as under:- “403.Dishonest misappropriation of property.— Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation 1.—A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Explanation 2.—A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it. What are reasonable means or what is a reasonable time in such a case, is a question of fact. It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believe that the real owner cannot be found.” 18. In order to establish an offence under Section 403 of Indian Penal Code, the prospection has to prove (a) that the property was the property of the complainant, (b) that the accused misappropriated that property or converted to his own use; and (c) that he did so dishonestly. 19. In order to establish an offence under Section 403 of Indian Penal Code, the prospection has to prove (a) that the property was the property of the complainant, (b) that the accused misappropriated that property or converted to his own use; and (c) that he did so dishonestly. 19. Here in the instant case, if the petitioners as per their claim earned something by doing job earning of which was not given, it cannot be said to have been dishonestly misappropriated as in the event of taking of personal property with which one has been entrusted especially in a fiduciary capacity one can be said to have misappropriated or embezzled the property. However, according to learned counsel appearing for the petitioners, deception can be gathered even from the conduct of the parties and from the conduct if it would appear that the petitioners had had intention to commit offence either of cheating or offence of dishonest misappropriation of the property, he can be held guilty. In support of this submission, observation made by the Hon'ble Supreme Court in paragraph-15 of Hridaya Ranjan Prasad Verma (supra) was made, which reads as follows:- “15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 20. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 20. On perusal of the said observation, it be stated that the Hon'ble Supreme Court is of clear view that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction i.e. the time when the offence is said to have been committed. 21. It may be reiterated that nothing is there in the entire complaint to show that any property, which had been entrusted to the petitioners, has been misappropriated nor any act of deception seems to be there right from the beginning on the part of the petitioners to assign the job and not to pay the claim. In such situation, the case appears to be of mere breach of agreement. 22. Accordingly, entire criminal proceeding of C/1 Case No. 1532 of 2006, including the order dated 8.6.2007 taking cognizance under Sections 406, 417, 418, 420 and 426 of Indian Penal Code against the petitioners is hereby quashed. 23. In the result, this application is allowed.