ORDER This Criminal Petition is filed seeking to quash the proceedings in C.C. No. 184 of 2011 on the file of the Additional Judicial Magistrate of First Class, Amalapuram, East Godavari District. 2. The petitioners herein are A-1 and A-2, and the first respondent herein is the defacto complainant, in the above case. 3. The first respondent lodged a private complaint before the court below against the petitioners for the offences under Sections 409 and 420 IPC alleging as follows. The complainant is proprietor of Subrahmanya Agro Products, Ambajipeta and doing business in coconuts and oils. A-1 is father of A-2, and both are businessmen in Guntur and Directors of Premier Tobacco Packers Private Limited, Potturu in Guntur District. On 18-3-2007, the accused offered their oil extraction plant in Potturu for lease and published the same in Eenadu news paper as follows: "Extaction Plant for Job Work/Lease: 150 TP, Solvent Extraction plant (continuous) for edible oil cake/soya seed with soya preparatory, with this facilities Boiler 4 ton FBC Godown facility 30,000 sft, expellers 6 Nos. with 320 Kv Power" Upon reading the publication, the complainant wrote letter for enquiry, and thereafter, the accused contacted the complainant at Ambajipeta by phone from Guntur and offered their extraction plaint is ready to use. On 6-5-2007, further discussions were held at complainant's officer at Ambajipeta. The accused represented themselves as Director of Multi crore business house as exporters by name Bommidala group in Guntur and surrounding areas and showed several proofs of their business through web sites, etc. They convinced the complainant that they would support him in all ways and he would get maximum profits under their guidance by running the extraction plant on lease. The accused promised and assured that the plant/extraction unit is in good running condition without any defects, and that the plant got all required licenses and permissions to run immediately, and that they undertook that their plant has got license to purchase hexane and they would supply/fill hexane whenever it was required for running the plant. The accused offered on lease to the complainant for Rs. 20.00 lakhs per annum to be payable in instalments @ Rs. 5.00 lakhs at the end of each quarter. The complainant agreed for the same and paid Rs. 9,001/- as advance to the accused, and A-1 passed receipt dated 6-5-2007 in favour of the complainant therefore. The accused offered on lease to the complainant for Rs. 20.00 lakhs per annum to be payable in instalments @ Rs. 5.00 lakhs at the end of each quarter. The complainant agreed for the same and paid Rs. 9,001/- as advance to the accused, and A-1 passed receipt dated 6-5-2007 in favour of the complainant therefore. After unloading the material, complainant tried to start the mill for extraction of oil. But, to surprise of the complainant, the plaint was not in running condition and it required heavy repairs and replacement of parts. When the complainant questioned the accused with regard to above, they represented that they would reimburse later cost of the parts and repairs, if paid by him during lease period, and regarding filling of hexane liquid, as fuel for the plant, the accused represented after long time that they did not have license to purchase and the complainant had to purchase the same from other plants with high cost. The complainant incurred all the above expenses and finally started the plant and extracted oil from the plant. Accused locked the plant gates and demanded to pay Rs. 10.00 lakhs otherwise they would not allow him to take the extracted product. The complainant paid Rs. 10.00 lakhs to the accused, but, again, the accused demanded some more amount to release the material. As the plant was not in running condition and broke down several times, the complainant incurred huge expenses to purchase hexane liquid at every break down with high cost. For the aforesaid reasons, the complainant decided not to continue the lease or operation of running plant from 10-8-2007 onwards. He diverted further stocks from outside to another plant Rajagopal Oil Mills, Tadepalli and continued the work. But, the accused did not allow him to take away his material from the plant and harassed in several ways. In the month of October, 2007, the accused allowed the complainant to take his material from the plant, but did not return monies that were entrusted to them along with cheques, title deeds, etc. Thus, the accused with dishonest intention and to gain wrongfully from the complainant, issued paper publication, made false representations to complainant and finally exploited money at each and every point and misutilized the money entrusted by the complainant to the accused. Hence, the complaint. 4. Thus, the accused with dishonest intention and to gain wrongfully from the complainant, issued paper publication, made false representations to complainant and finally exploited money at each and every point and misutilized the money entrusted by the complainant to the accused. Hence, the complaint. 4. The complaint was referred for investigation to police, who registered a case in crime No. 26 of 2008 of Ambajipet police station, East Godavari District, and filed final report referring the case as civil in nature. Thereafter, the complainant filed a protest petition reiterating the same contents in the complaint. There are no other allegations leveled in the protest petition. The learned Magistrate recorded sworn statements of the complainant as P.W.1 and two witnesses as P.Ws. 2 and 3, and basing on the same, had taken cognizance of the case as C.C. No. 184 of 2011 on the file of the Additional Judicial Magistrate of First Class, Amalapuram. East Godavari District, for the offences punishable under Section 409 and 420 IPC. Challenging the same, the present Criminal Petition. 5. Learned Counsel for the petitioners contended that police, after completion of investigation, referred the case as civil in nature, that though no new material is forthcoming either in the protest petition or in the sworn statement of the complainant or witnesses, taking cognizance of the case is warranted; that that there is no dishonest or fraudulent misrepresentation inducing the complainant to deliver property, and there is no criminal breach of trust, and therefore, continuation of the impugned proceedings is nothing but abuse of process of court. 6. On the other hand, learned counsel for the first respondent contended that the petitioners did not disclose real facts before offering the plant for lease and that there are no licences to run the plant; that suppression of a material fact is a deception, and that as a prima facie case is made out, there are no grounds to quash the impugned proceedings. 7. Inherent powers under Section 482 Cr.P.C. can be exercised to prevent abuse of process of court or to secure ends of justice or to give effect to the order passed under the Code. This court has to see whether the uncontroverted allegations in the protest petition and the sworn statements recorded by the learned Magistrate made out a prima facie case of the offences punishable under Sections 409 and 420 IPC or not. 8. This court has to see whether the uncontroverted allegations in the protest petition and the sworn statements recorded by the learned Magistrate made out a prima facie case of the offences punishable under Sections 409 and 420 IPC or not. 8. Section 409 IPC deals with criminal breach of trust of public servant, or by banker, merchant or agent. Essential ingredients to constitute the offence under Section 409 IPC are as follows: (a) that the accused was either a public servant, a banker, a merchant, a factor, or a broker, or an attorney or an agent; (b) that as such he was entrusted with the property in question or with any dominion over it; (c) that he committed criminal breach of trust in respect of it. 9. In pursuance of the advertisement given by the petitioners on 18-3-2007 in Eenadu news paper offering their 150 TPD solvent extraction plant (continuous) for edible oil cake/soya seed with soya preparatory with the facilities mentioned therein, for lease, the complainant addressed a letter to Box No. 905, C/o. Eenadu, Guntur with his intention to take the plant on lease basis. Police, after recording statements of 5 witnesses, came to the conclusion that the matter is civil in nature and referred it accordingly. The offence punishable under Section 409 IPC is limited to a class. From a perusal of the allegations in the complaint, it is clear that the offence punishable under Section 409 IPC, which deals with criminal breach of trust by public servant, or by banker, merchant or agent, has no application, and under no stretch of imagination, it can be said that the complainant can come within the meaning of a public servant or banker or merchant or agent. The complainant, who claims to be a lessee, cannot fit into anyone of the class of persons as mentioned in Section 409 IPC. Where the dispute between the parties is one in the nature of lessor and lessee, the proper remedy is to file a civil suit for recovery of the amounts due and not a prosecution under Section 409 We. Where the dispute between the parties is one in the nature of lessor and lessee, the proper remedy is to file a civil suit for recovery of the amounts due and not a prosecution under Section 409 We. Precisely, for that reason, the complainant already filed Original Suit No. 97 of 2008 on the file of the II Additional District Judge, Amalapuram for recovery of money and on the point of jurisdiction, the said suit was transferred to the court of the Principal District Judge, Guntur and the same is renumbered as Original Suit No. 138 of 2011 and is pending for adjudication. Hence, continuation of the impugned proceedings insofar as the offence punishable under Section 409 IPC is nothing but abuse of process of court. 10. With regard to the offence punishable under Section 420 IPC, necessary ingredients to constitute the offence of cheating which is defined under Section 415 IPC are thus : "(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 person or to consent that any person shall retain any property; or (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 body, mind, reputation or property. The offence of cheating under Section 420 IPC as defined in Section 415 IPC has two essential ingredients viz., deceit i.e., dishonest or fraudulent misrepresentation to a person and the inducing of that person thereby to deliver property, and cause wrongful loss to the complainant or gaining wrongfully by the accused. In the case on hand, in pursuance of the advertisement given by the accused in the news paper, the complainant himself gave his willingness to take the extraction plant on lease. Therefore, prima facie, there is no inducement or force on the complainant to take the plant on lease. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had a fraudulent intention at the time of making the promise to say that he committed an act of cheating. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had a fraudulent intention at the time of making the promise to say that he committed an act of cheating. To hold a person guilty of offence of cheating, it must be shown that he had a dishonest intention at the time of making the promise. In other words, mens rea for the charge of cheating has to be shown on the date of fraudulent or dishonest representation. 11. Sworn statement of the first respondent/complainant would go to show that on 6-5-2007, A-1, A-2 and another person by name Ramesh Babu came to him and told that the factory belongs to A-1 and A-2, and said Ramesh Babu is their Manager, and they told that they would give the factory on lease and that they had all papers and license of the factory with them; that he agreed to give Rs. 5,00,000/- per quarter after trial production is shown to him; that he agreed to give Rs. 20,00,000/- per year, but they did not execute any agreement; that he sent 1000 tonnes of product to the accused and also paid Rs. 9,001/- as advance; that later, to purchase some chemical for the product, Collector's permission is required and so he asked them about papers; that the accused told that they had no papers and they have not renewed the same and asked him to manage anywhere; that as his product was involved in the plant, he took the papers from other factory which is factory of brother of the accused and purchased chemical; that, later trial production is prepared, but the accused stopped his lorry containing products and asked to pay amount; that he told that they agreed to pay the amount after giving trial production only; but they did not heed to the words, and as there was no other go and his product is in their hands, he issued two cheques for Rs. 5,00,000/- each for payment of amount; that the accused, without intimation to him, presented the said cheques in bank and drew Rs. 5,00,000/- each for payment of amount; that the accused, without intimation to him, presented the said cheques in bank and drew Rs. 10,00,000/-; that, later he sent product and after his product is over, the accused again stopped his product and asked another amount; that, he told that at the time of trial product, the factory is not in good condition and he bore all the expenses to get the machine repaired and he also paid Rs. 10,00,000/- to the accused; that he did not agree for that and again they wanted another amount; but, the accused refused to give his product and told that he had no cash with him; then, the accused told that if he gives authorization letter from the person to whom he sold his product that the third person who purchased his product would pay the amount to them, then they would give my product; that having no other go, he gave that authorization letter and took his product; that third time also, accused demanded Rs. 7,00,000/- to give his product; then, he told that he had already paid Rs. 20,00,000/- to the accused; but, A-1 and A-2 did not agree; then again, he took authorization from third party and took his product; that as total product is within the hands of the accused, he paid the entire amount demanded by the accused and finally he took the product from the accused; therefore, the accused cheated him by saying that the factory is in good condition and they stopped his product forcibly and extracted from him. 12. A notice inviting the interested parties to run the factory had been given in the news paper by the accused to all the persons. When a notice is given, it is the bounden duty of the defacto complainant to verify whether the plant is in working condition or not as he has to invest huge amount in lakhs. It is not the case of the complainant that he got tested or verified the machinery before entering into oral agreement with the accused. Without doing so, entering into an oral agreement for such huge amount appears to be improbable. An ordinary prudent man would definitely insist for execution of a lease agreement when he is paying huge amount in lakhs towards lease. Complainant is totally a stranger to the accused. Without doing so, entering into an oral agreement for such huge amount appears to be improbable. An ordinary prudent man would definitely insist for execution of a lease agreement when he is paying huge amount in lakhs towards lease. Complainant is totally a stranger to the accused. Admittedly, without there being any agreement in writing, the complainant says that he entered into an agreement orally. If the factory is not in good condition, the question of the complainant using it for trial run may not arise, and the question of the plant producing the product does not arise. On one hand, the complainant states that the factory is not in good condition and on the other hand, he states that the factory was forcibly stopped. A perusal of sworn statement of the complainant, it cannot be said that there was a cheating or that the accused induced him to part with any money. The transaction between the parties was of a civil nature and it is a case of mere breach of agreement for which remedy was to resolve the issues in the civil suit. 13. Even if the allegations in the sworn statement of the complainant are taken as true and correct, at this stage, they do not make out a prima facie case for the offence of cheating. There is no inducement or deceit by the accused so as to cause wrongful loss to the complainant or so as to gain wrongfully by them. Mere breach of promise does not give raise to a criminal prosecution. The intention of the accused at the time of inception is the criterion for the offence of cheating. As intention is locked up in the mind of the accused, it can be inferred from the facts and circumstances of the case. No such circumstances are there so as to infer that the intention of the accused is to cheat or deceive the defacto complainant or any other person. 14. The sworn statements of other two witnesses viz., K. Ramakrishna and Appana Kali Prasad would not help the complainant to infer that the accused cheated him. All that they stated is that the complainant entered into an agreement with the accused orally agreeing to pay Rs. 14. The sworn statements of other two witnesses viz., K. Ramakrishna and Appana Kali Prasad would not help the complainant to infer that the accused cheated him. All that they stated is that the complainant entered into an agreement with the accused orally agreeing to pay Rs. 5,00,000/- per quarter as rent to the plant, and in pursuance of the said agreement, the complainant sent the product to the factory of the accused after trial production is prepared, the accused stopped the lorry and demanded amount from the complainant; then the complainant paid Rs. 10,00,000/- to them, and later the product was released. These two persons have not stated that there were no licenses to the factory and that the factory was not in working condition. On the other hand, their statements would go to show that the product has been released. It is clear from their statements that the factory prima facie appears to be in running condition. 15. The complaint appears to have been filed due to some misunderstandings between the complainant and the accused. Admittedly, the petitioners/accused filed suit for damages and the defacto complainant filed suit for recovery of amount of Rs. 29.00 lakhs and odd. That is the reason why police, after recording statements of witnesses and after collecting necessary documents from the parties, referred the matter as civil in nature. Even after referring the case as false, no new material is forthcoming and no new material is placed by the complainant except his oral assertion that the accused made him to believe that the factory was in running condition. That appears to be false in view of the fact that some product has been released from the factory after trial run. Therefore, the matter is purely civil in nature, and so, continuation of the impugned proceedings is nothing but abuse of process of court. 16. The Criminal Petition is, accordingly, allowed, quashing the proceedings in C.C. No. 184 of 2011 on the file of the Additional Judicial Magistrate of First Class, Amalapuram, East Godavari District, Miscellaneous petitions pending, if any, in the Criminal Petition shall stand dismissed.