JUDGMENT & ORDER : The perpetual question of law as to whether a particular commercial transaction constitutes a mere breach of contract without any criminal liability or a case of cheating is once again confronting this Court in this criminal revision petition. 2. The case of the respondent No. 1, who is the complainant, is that the petitioner Nos. 1 and 2, who are husband and wife and who claimed to be the Proprietors of Bharat Tirtha Darshan, in response to the advertisement appearing in the local daily, Dainik Sambad, in its issue dated 25-8-2013, entered into an agreement with him for opening a parlour franchise for Vadilal Ice-cream at Udaipur. Pursuant to the agreement, the respondent No. 1 had deposited a non-refundable sum of Rs.4,75,000/- with the petitioners in consideration of the supply for the dresses of the company, three refrigerators, a cone machine, a mixture machine, air-conditioned machine and free decoration of the Ice-cream parlour to be made by the latter. It was also agreed upon that the petitioners’ firm would advertise the shop and give training to their employees and provide cash counter, other articles like table, chair, etc. to the respondent No. 1. According to the respondent No. 1, the petitioners subsequently delivered one damaged second hand refrigerator, one damaged air-conditioned machine and nothing more. It is the further allegations of the respondent No. 1 that his repeated requests to the petitioners to provide those items and facilities in terms of the agreement did not evoke any positive, but a few months thereafter, they had altogether stopped supplying even the Ice-cream products from Vadilal Enterprise Limited, which is the only reputed Icecream company. Ultimately, in response to his letter, the petitioners replied that the company was no more with them and that he should purchase from “Quality Ice-cream”. The respondent No. 1 is stated to have learnt subsequently from another businessman, namely, one Suman Ganguly, that the petitioners had no authority to sell the goods of Vadilal Company as they were not their authorized dealer. The respondent No. 1 further alleged that he had asked the petitioners to return the money which they had fraudulently and dishonestly taken from him, but they refused to do so. 3. The respondent No. 1 further alleged that he had asked the petitioners to return the money which they had fraudulently and dishonestly taken from him, but they refused to do so. 3. It was under the aforesaid circumstances that the respondent No. 1 filed C.R. Case No. 238/2015 against the petitioners before the learned Judicial Magistrate First Class (Court No. 8), Agartala charging them for the offences punishable under Sections 420/406/34 IPC. The learned Magistrate thereafter issued processes against the petitioners, who on their appearance before him, were released on bail. Four witnesses were examined by the respondent No. 1 at the stage of evidence before charge to bolster his case; the petitioners reserved their cross-examinations. After recording of the evidence of the prosecution witnesses and after hearing both the parties wherein the petitioners firmly submitted that the allegations made by the respondent No. 1 against the petitioners did not constitute the offence of cheating punishable U/s 420 IPC and prayed for their discharge from the case. The learned Magistrate, however, by the impugned order framed the charge against the petitioners U/s 420/34 IPC. Aggrieved by this, this revision petition is now filed by the petitioners for quashing the criminal proceedings against them. 4. Both Mr. P.K. Biswas, the learned senior counsel for the petitioners, and Mr. R.C. Debnath, the learned Additional Public Prosecutor, were heard at length. None appeared for the respondent No. 1 despite proper service of notice upon him vide the Registry note dated 14-6-2017. 5. On perusing the body of the complaint petition and the evidence adduced by the respondent No. 1 heretofore, I am of the view that there is force in the contention of the learned senior counsel that even if the facts alleged by the respondent No. 1 are assuming, but without admitting them, to be true also, they cannot constitute the offence of cheating punishable under Section 420/34 IPC; at the most, the respondent No. 1 can claim damages for breach of contract in a civil court of competent jurisdiction. In the instant case, the facts as alleged by the respondent No. 1 can only raise reasonable ground for presuming that the petitioners failed to make good of their promises to supply the items contracted for. In the instant case, the facts as alleged by the respondent No. 1 can only raise reasonable ground for presuming that the petitioners failed to make good of their promises to supply the items contracted for. The distinction between mere breach of contract and the offence of cheating came up for consideration before the Apex Court in the recent case of ARCI and others v. NIMRA CERGLASS TECHNICS (P) Ltd. and another, (2016) 1 SCC 348 , and this is what Apex Court held: “16. 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. In S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , this Court held as under: “21. … 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 fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” The above view in Palanitkar case (supra) was referred to and followed in Rashmi Jain v. State of U.P., (2014) 13 SCC 553” 6. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” The above view in Palanitkar case (supra) was referred to and followed in Rashmi Jain v. State of U.P., (2014) 13 SCC 553” 6. In the case at hand, a desperate attempt is made by the respondent No. 1 to convert what is essentially and evidently a case of mere breach of contract into one of cheating by making a plea that he had subsequently learned from one Suman Ganguly (PW-4) that one day Deputy General Manager, Vadilal Company along with Pranab Roy, the Sales Manager of the Company had told him (Suman Ganguly) that Bharat Tirtha Darshan, the firm of the petitioners, had no authority to give franchise of Vadilal Company; that when he showed them his agreement paper with Bharat Tirtha Darshan, they told him that there was no business agreement between the Vadilal Company and Bharat Tirtha Darshan and that Bharat Tirtha Darshan had not deposited any amount with Vadilal Company. It may be noted that the said Suman Ganguly was projected to be another victim of the fraud allegedly played by the petitioners. It is, however, interesting to notice that neither the named Deputy General Manager of Vadilal Company nor the named Sales Manager of the said company was examined or cited as witnesses for the prosecution. In the absence of evidence from these two officials of the Vadilal Company, there is no prima facie evidence at this stage to show that the petitioners did have the intention to deceive the respondent No. 1 at the time when the promises were made. No other issue survives for consideration. In my opinion, the trial court erred in framing the charge against the petitioners U/s 420/34 IPC; the impugned order cannot be sustained in law. 7. For the reasons stated in the foregoing, this criminal revision petition succeeds. The impugned order is, accordingly, set aside. The petitioners are, therefore, discharged from the case. They are set at liberty and need not surrender to their bail-bonds.