JUDGMENT : M.M. Banerjee, J. The revisionist/petitioners have prayed for quashing the proceedings of complaint case no. 19241 of 2008 under Section 429/120B I.P.C. and quashing of all orders passed in that case including order dated November 25, 2008 passed by the Ld. Metropolitan Magistrate, 8th Court, Calcutta. 2. In the aforesaid complaint case the revisionist/petitioners have been arraigned as accused persons. Opposite party no. 2 filed the petition of complaint on behalf of M/s. Beekay Steel Industries Limited as its responsible officer and it is stated in the petition of complaint that M/s. Radice Ispat (India Limited) by virtue of an order of Hon'ble High Court, Calcutta was merged with the complainant's company. For proper appreciation of the complainant's case of cheating and criminal conspiracy against the accused persons, the complainant's case, in short, may be summarised as hereunder:- The accused no. 1/company has been acting as the authorised Agent in India of a foreign company namely, Oxford Instrument Analytical OY Finland a subsidy of Oxford Instrument P.L.C. which is the manufacturer, inter alia, of ARC – MET-8000 MOBILELAB S.P. OPTICAL EMISSION ANALYSER. M/s. Radice Ispat (India Ltd.) had placed purchase order dated 06.09.2006 to accused no. 1 company. The accused persons to satisfy and convince the petitioner's company of their authority to act as the lawful agent of the foreign company placed a letter of authorisation dated 8th September, 2005 issued by the said foreign manufacturing company. The price was fixed at Euro 26,000/- and full payment was to be made on letter of credit. It was specified that any parts failing due to manufacturing defects during those guarantee period would be replaced free of charge on CIF basis by the said foreign manufacturing company and the foreign manufacturing company issued confirmation vide Pro-forma Invoice No. R 7915 dated 12.09.2006. Thereafter it is alleged in paragraph 9 of the petition of complaint that the petitioner company being impressed by such representations and assurances advanced by the accused persons reposed enough confidence, faith and trust upon the accused persons and so believed their such representations and assurances to be honest and true and accordingly thereafter opened a letter of credit with Allahabad Bank, Industrial Finance Branch, 17, R.N. Mukherjee Road, Kolkata on 08.11.2006 of Euro 26,000/-. 3. 3. Although paragraph 9 of the complaint opens with the sentence that ".............being impressed by such representations and assurances ........." but in the preceding paragraph there is no mention as to what were the representations and assurances made by the accused persons and to whom those representations and assurances were made and on which date in which month and in which year such representations were made. Be that as it may, after the petition of complaint was lodged in Court the Ld. Metropolitan Magistrate, 8th Court, Calcutta directed an investigation under Section 202 Cr.P.C. and after considering the report passed the following order:- 4. "Perused the case record and other materials on record. I find sufficient materials to raise strong and reasonable complicity against the accused persons in the alleged commission of offence punishable under Section 420/120 B I.P.C". 5. From the investigation report filed under Section 202 Cr.P.C. it is found that the concerned police officer concluded his report stating :- "so far it is revealed that the fact is a breach of agreement". 6. The Ld. Advocate appearing for the revisionist/petitioners argued that indisputably the revisionist/petitioners worked as agent of the foreign company, the manufacturer of the machineries installed at the work-place of the complainant's company and payment was made to the said manufacturing company and not to the revisionist/petitioners and whenever the matter of the alleged defect in the installed machineries were reported to them they promptly sent their engineers for inspection, checking and carrying out necessary work for removal of the defects found, if any, including the training of the complainant's company's personnel in handling the machineries; so it cannot be said by any stretch of imagination that they had any intention either to deceive or to defraud the complainant's company. It was argued that the revisionist/petitioners had nothing to gain unlawfully and there is also no allegation as such in the four corners of the petition of complaint. Inviting the Court's attention to paragraph 13 of the petition of complaint the Ld. Advocate argued that it is clear from the averments made in that paragraph that the revisionist/petitioners deputed their men for commissioning the equipment. It was argued that the further allegation in that paragraph that the accused persons had to confess about the want of their expertise etc. is mere innovation for the purpose of this case. Advocate argued that it is clear from the averments made in that paragraph that the revisionist/petitioners deputed their men for commissioning the equipment. It was argued that the further allegation in that paragraph that the accused persons had to confess about the want of their expertise etc. is mere innovation for the purpose of this case. It was argued that the complainant's company instead of proceeding against the manufacturing foreign company is after the revisionist/petitioners whose role in the contract/transaction was very limited, with a view to creating pressure upon them and to harass them. It was contended that the petition of complaint was filed in Court on 3rd July, 2008 and the machineries were installed on 25.04.2007 and, therefore, the guarantee period was already over. It was also argued that no overt act has been attributed to any particular revisionist petitioner/accused specifying their role in the transaction/contract. Relying on a decision reported in (2016) 1 S.C.C. (Cri) 269 the Ld. Advocate argued that at the stage of quashing of the proceedings the test to be applied is as to whether uncontroverted allegation as made in the complaint establish the offence. The Hon'ble Apex Court held:- "The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction." 7. The Ld. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction." 7. The Ld. Advocate for the revisionist/petitioners also relied on a decision reported in AIR 1998 S.C. 128 where the Hon'ble Apex Court held:- "No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial". 8. In support of his contention that the petition of complaint does not disclose any specific allegation with regard to the part played by the individual directors or officers of the accused company and the question of proving the same at the stage of trial does not and cannot arise the Ld. Advocate for the petitioners relied on a decision reported in (2010) 11 S.C.C. 203 . 9. The Ld. Advocate appearing for the opposite party no. 2/ complainant company strenuously argued that the petition of complaint simpliciter is not the whole and at the end of the case as the complainant has to go through the other stages of the proceedings for developing the case, glimpses whereof have been made in the petition of complaint. It was argued that since this is a case instituted on a private complaint the complainant is required to adduce evidence before charge and thereafter the case will be taken up for consideration of charge and if the Magistrate finds that the complainant has not been able to make out a case then the accused persons could be discharged. It was argued that even after framing of charge and cross-examination of the witnesses after charge is over, the complainant will get further opportunity of adducing evidence in terms of Section 246 (6) of the Criminal Procedure Code. It was argued that at this initial stage it cannot be scrutinised as to whether the complainant has been able to prove his case or not because the evidence in the case is yet to be adduced. 10. The Ld. It was argued that at this initial stage it cannot be scrutinised as to whether the complainant has been able to prove his case or not because the evidence in the case is yet to be adduced. 10. The Ld. Advocate argued that once the complainant gets the opportunity to adduce evidence he could very well prove that the accused persons from the very inception of the transaction had the intention to cheat and deceive the petitioner's company. It was argued that the question of wrongful gain to the accused persons is immaterial because wrongful loss suffered by the complainant company is the crux of the matter. 11. In his bid to refute the argument advanced the Ld. Advocate for the revisionist/petitioners, the Ld. Advocate for the opposite party no. 2 argued that the complainant was not expected to rush to Court immediately because he tried to resolve the matter with the accused company. On the decision relied by the Ld. Advocate for the revisionist/petitioners, the Ld. Advocate for the opposite party no. 2 submitted that each and every case has to be understood in the context of the factual matrix of that case. Inviting the Court's attention Section 415 (Illustration – g), the Ld. Advocate for the opposite party no. 2 argued that in the instant case the accused/revisionist petitioners have cheated him and the criminal proceedings should not be stalled attributing to it elements of civil transaction. 12. The Ld. Advocate relied on the following 15 decisions: (i) (1999) 3 SCC 259 Rajesh Bajaj v. State of NCT of Delhi & Ors. (ii) (1999) 8 SCC 686 Trisuns Chemical Industry v. Rajesh Agarwal & Ors. (iii) (2010) 6 SCC 562 S.P.Gupta v. Ashutosh Gupta (iv) (2001) 8 SCC 645 M. Krishnan v. Vijay Singh & Anr. (v) (2008) 9 SCC 140 Bholu Ram v. State of Punjab & Anr. (vi) (2009) 4 SCC 439 Mahesh Chaudhary v. State of Rajasthan & Anr. (vii) (2013) 2 SCC 801 Arun Bhandari v. State of Uttar Pradesh & Others (viii) (2014) 3 SCC 389 Vijayander Kumar & Others v. State of Rajasthan & Anr. (ix) (2012) 3 SCC 132 Lee Kun Hee, President, Samsung Corporation, South Korea and others v. State of Uttar Pradesh and others. (x) (2004) 1 SCC 691 State of M.P. v. Awadh Kishore Gupta & Others. (ix) (2012) 3 SCC 132 Lee Kun Hee, President, Samsung Corporation, South Korea and others v. State of Uttar Pradesh and others. (x) (2004) 1 SCC 691 State of M.P. v. Awadh Kishore Gupta & Others. (xi) AIR 1963 SC 1430 Chandra Deo Singh v. Prakesh Chandra Bose alies Chabi Bose & Anothers. (xii) (2015) 3 SCC 424 Sonu Gupta v. Deepak Gupta & Others. (xiii) (2002) 9 SCC 709 Ajay Mehra and Another v. Durgesh Babu and Others. (xiv) (2009) 11 SCC 529 Ravindra Kumar Madanlal Goenka and Another v. Rugmini Ram Raghav Spinnrs Private Limited. (xv) (2015) 1 SCC 103 Gunmala Sales Private Limited v. Anu Mehta & Others. 13. The decisions relied by the Ld. Advocate for the opposite party no.2 are on the same point but as guidelines in the field it would be beneficial to reproduce what the Apex Court held in the case of Rajesh Bajaj v. State of NCT of Delhi and Ors. Paragraph 9 – 12 of the aforesaid decision of the Apex Court are quoted below: "(9) It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: (SCC p. 379, para 103) "103. In State of Haryana v. Bhajan Lal this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: (SCC p. 379, para 103) "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (10) It may be that the facts narrated in the present 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 from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustration f) is worthy of notice now: "(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats." (11) The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment of receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. (12) The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a calendar of finest gauzes for testing the ingredients under Section 415 IPC. Such averments would prima facie make out a case for investigation by the authorities. (12) The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a calendar of finest gauzes for testing the ingredients under Section 415 IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved." 14. So, in the light of the ratio decided in the cases relied on by the Ld. Advocates of parties it is to be prima facie seen whether the petition of complaint discloses an offence of cheating and criminal conspiracy. In every case of cheating there is deceit and to deceive means to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false Now in the four corners of the petition of complaint there is no whisper even that any of the accused persons or they pursuant to any criminal conspiracy deceived the complainant's company to believe the quality of the machineries to be installed knowing fully well that there were defects in those machineries. In other words, the allegation that the accused persons from the very beginning were well aware of the defects in the machineries before its installation is not there in the petition of complaint and the factual foundation of the offence of cheating is absent. In that view of the matter, and more particularly what has been discussed herein above it cannot but be held that the petition of complaint does not disclose elements of offence under Section 420/120B I.P.C. I find and hold that the factual matrix of the case discloses only civil wrongs and not a criminal offence to be punished by criminal court and it would be an abuse of the process of the court to continue the proceedings against the revisionist/petitioners. I, therefore, find and hold that there is merit in this revisional application. 15. The revisional application, therefore, succeeds and is allowed. The proceedings of Complaint Case No.19241 of 2008 under Section 429/ 120B I.P.C. pending in the Court of the Ld. I, therefore, find and hold that there is merit in this revisional application. 15. The revisional application, therefore, succeeds and is allowed. The proceedings of Complaint Case No.19241 of 2008 under Section 429/ 120B I.P.C. pending in the Court of the Ld. Metropolitan Magistrate, 8th Court, Calcutta is hereby quashed. A copy of this order be sent to the Ld. Court below for information.