JUDGMENT : B. K. Nayak, J. - This is an application under Section 482 of the Code o Criminal procedure with a prayer to quash the order dated 18.02.2016 passed b) the learned S.D.J.M., Bhubaneswar, in a private complaint filed by the present opposite party, taking cognizance of the offences punishable under Sections 120-B of 406 of 420 of 149 of the Indian Penal Code (for short 'the I.P.C.') against the present petitioners. 2. The opposite party filed a complaint with the submissions that he is the Director of a Private Limited Company in the name and style of "Divij Motors Private Company Ltd." having its registered office, show-room and work shop facilities at Bhubaneswar. He was having dealership of Maruti Vehicles. The petitioner No. 1-Mercedes-Benz India Private Limited is a company manufacturing vehicles in the name of Mercedes Benz and it did not have any authorized dealer in the State of Odisha. It invited applications for a dealership but there was no response. The complainant had previous acquaintance with Rahul Kulkarni, D.G.M. of the aforesaid company (present petitioner No. 4), who induced him to apply for dealership and also introduced him to other accused persons. It was further alleged that he was given false assurance for long term dealership and according he submitted application on 4th of April 2012. After discussions and meeting the accused persons issued a letter of intent (LOI) on 31.07.2012 for proposed dealership at Bhubaneswar in Odisha for Mercedes Passenger Cars in favour of the complaint for a period of one year. The complainant further alleged that was hesitant to accept for one year but he was assured by the accused person that it was a mere formality and the dealership would be made permanet subsequently. Basing on their assurance, the complaint invested a sum of rupees around three crores for establishment of provisional show-room and workshop etc. at Bhubaneswar. It was submitted that show-room etc., were according to the specifications of the principal company. The complainant also complied other formalities like bank guarantee etc. and selling of vehicles also started. It was averred in the complaint petition that there was delay in completion of interim show-room and work shop facilities since all the required equipments were to fa-purchased only from the approved vendors of the principal company. There was also delay in finalizing the proposed show-room and workshop facilities. and selling of vehicles also started. It was averred in the complaint petition that there was delay in completion of interim show-room and work shop facilities since all the required equipments were to fa-purchased only from the approved vendors of the principal company. There was also delay in finalizing the proposed show-room and workshop facilities. Tl complainant averred that despite all these, he met the sales targets as fixed the principal company. It is alleged that all of a sudden in a letter dated 12.07.2011 issued by the accused persons, the complainant was informed that the LOI issued in his favour would not be extended since there was no progress in making operational a fully functional show-room and workshop facilities besides non-fulfilment of man-power specification with respect to quantity and quality, both in sales and after sales services. The complainant alleged that such letter was issued with an ulterior motive to give dealership of the company to another person and to cause unnecessary financial loss as well as loss of reputation to the complainant and his dealership. 3. It was further averred in the complaint petition that since the accused persons were not interested to carry on business with the complainant by extending the LOI, the complainant agreed to such termination of dealership on settlement of legitimate claims. Thereafter, correspondences were made between the parties and new spare parts of the company remaining with the complainant were taken back and there were some negotiation regarding settlement of dues and furnishing of Bank guarantee. Ultimately as to the settlement of amount for reconciliation, the complainant addressed a letter to the accused company claiming an amount of Rs. 10, 30,00,000/-. But it was rejected by the company and its officials by the raising counter claim of Rs. 6,66,869/-. They also threatened to invoke the Bank guarantee furnished by the complainant. It was further alleged that the complainant refuted such claim but instead of verifications, the accused persons invoked the Bank guarantee given by the complainant on 28.04.2014 and gave a proposal to the complainant in letter dated 29.04.2014 for settling the disputes. Hence, the complainant alleged that all the actions of the accused persons and the principal company were with a clear intention of cheating and defrauding the complainant causing him financial loss with the sole purpose of providing the dealership to another person. Hence, the complainant alleged that all the actions of the accused persons and the principal company were with a clear intention of cheating and defrauding the complainant causing him financial loss with the sole purpose of providing the dealership to another person. Thus, the complainant alleged that by not extending the period of LOI as verbally agreed upon between the parties and by invoking the Bank guarantee given by the complainant illegally, the company and its officials as accused persons committed offences punishable under Sections 120-B of 406 of 420 of 34 of the I. P.O. 4. Learned S.D.J.M., Bhubaneswar entered into an enquiry under section 202 of the Criminal Procedure Code, 1973 in course of which, the complainant examined some witnesses and on perusal of the materials, learned S.D.J.M., Bhubaneswar passed the impugned order dated 18.02.2016 taking cognizance of the offence punishable under Section 120-B of 406 of 420 of 149 of the Indian Penal Code against the accused persons directing for issuance of summons against them for appearance. 5. It is submitted in the present application that the impugned order passed by the learned S.D.J.M., Bhubaneswar is not at all sustainable in law for the mere reason that even accepting the entire case of the complainant as averred in the complaint petition for the sake of argument, no offence as alleged is made out against the present petitioners. It was submitted by the learned counsel for the petitioners that on his own admission of the complainant, after negotiations were made, the LOI was issued, which clearly mentioned the initial period for one year and the complainant accepted it and was entrusted with the dealership with certain terms and conditions. But since the complainant did not comply the requirements and was also not in a position to comply the same within the stipulated period as per the LOI, the dealership was terminated. It was further submitted that the complainant alleged that there was some verbal assurance for extension of dealership and some officers of the company has assured him for the purpose. Excepting the bare statement of the complainant, there is absolutely no material on record in respect of said assurance of commitment. It was further submitted that the complainant alleged that there was some verbal assurance for extension of dealership and some officers of the company has assured him for the purpose. Excepting the bare statement of the complainant, there is absolutely no material on record in respect of said assurance of commitment. The entire transaction being the matter of business contract, there could not have any verbal assurance or agreement apart from the fact that law never permits placement of any oral evidence in respect of any document with unambiguous terms. It is clear mandate of Section 91 of the Evidence Act when the terms have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself or secondary evidence of its contents in cases where secondary evidence is admissible under law. 6. It was further submitted that the LOI issued by the petitioners was accepted by the complainant-opposite party without any protest and further when the company intimated the complainant regarding its failure and shortcomings in complying the requirements, the complainant also tried to explain his latches in written correspondence. The apart when the dealership of the complainant was terminated, without raising any objection or protest before any appropriate forum, the complainant continued with the negotiations with the company for final settlement of their respective claims. Only allegation that has been made by the complainant is that the petitioners invoked the Bank guarantee furnished by the complainant illegally and refused to pay him the compensation of Rs. 10,30,00,000/ - as claimed by him. Thus, it was submitted that there could not have been an offence under Section 420 of the I.P.C. so as to make out a case of cheating against the present petitioners. 7. It was further submitted on behalf of the petitioners that so far as the offence under Section 406, I.P.C. is concerned, there was never any entrustment so as to make out any offence of misappropriation, since because the entire affairs between the parties were business transactions and settling of claims and counterclaims. 8. Lastly, it was submitted that there being no offence under Sections 420 of 406, I.P.C., the offence under Section 120-B, I.P.C. has no leg to stand and the offence under Section 149, I.P.C. was obviously a mistake of law, there being no offence under Section 147, I.P.C. 9. 8. Lastly, it was submitted that there being no offence under Sections 420 of 406, I.P.C., the offence under Section 120-B, I.P.C. has no leg to stand and the offence under Section 149, I.P.C. was obviously a mistake of law, there being no offence under Section 147, I.P.C. 9. It was submitted that accepting the allegations of the complainant on their face value, at best it would be a matter of civil dispute between the parties but there can never be any criminal liability. 10. Per contra relying upon certain decisions of the Hon'ble Apex Court, it was submitted by the learned counsel for the opposite party that it is the position of law that in case of a breach of contract, there would be civil as well criminal liability and the complainant is not required to prove all the ingredients of the alleged offences at the time of taking cognizance and the learned Magistrate is also not required to go into the details of the materials available as evidence against the accused persons at the time of issuance of process, except being satisfied that on the materials available, a prima facie case is made out against the accused persons. 11. Learned counsel for the opposite party relied upon the case laws as report in A.I.R. 2001 S.C. 3014 (M. Krishna v. Vijay Singh and another), A.I.R. 1999 S.C. 3499 S.C 3499 (Trisuns Chemical Industry v. Rajesh Agarwal and others), A.I.R. 2000 S.C. 1869 (Medchl Chemicals and Pharma Pvt. Ltd. v. Biological E. Ltd. and others), 2005 (10) SCC 626 (Gurcharan Singh and another v. Allied Motors Ltd. and another, AIR 1999 S.C. 1216 (Rajesh Bajaj v. State NCT of Delhi and others, 2002 (1) SCC 241 (S.W. Palanitkar and others v. State of Bihar and another) 12. The positions of law as cited and relied upon are not disputed albeit the cited case laws are factually quite differentiable. It is not disputed that both the criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. It is not disputed that both the criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. It is also not disputed that at the time of taking cognizance and issuance of process, the required materials or evidence to establish the charges are not to be sought for but only it is to be seen as to whether the materials as placed make out a prima facie case against the accused persons or not. It is also the settled norm that quashing of F.I.R. or any proceeding at the initial stage by exercising the power under Section 482, Cr. PC. should be done carefully. But at the same time, the settled proposition of law cannot be disputed that the materials as relied upon in the shape of complaint petition and initial statements placed before the Court must make out a prima facie case against the accused persons for the alleged offence. 13. On the touch stone of the aforesaid principles, considering the allegations and materials as placed on behalf of the complainant as narrated above, I do not find out the alleged offences punishable under Sections 420 of 406, I.P.C. to have been made our prima facie against the accused-petitioners. As per own admission of the complainant the entire transactions were on documents and the termination of dealership was accepted by the complainant subject to settlement of clams and counter claims. Only because, the accused-petitioners did not agree to pay his claims of Rs. 10,30,00,000/- (Rupees ten crores thirty lakhs) as compensation, it cannot be said that accused persons committed an offence of cheating. If at all the accused-petitioners committed any breach of agreement, it is open to complainant to seek redressal in a competent Court or forum to recover damages, if permissible under law in case he had sustained any loss. It is the settled proposition of law that in order to constitute an offence of cheating, the intention to that respect 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 promise in order to say that he had committed an act of cheating. It is necessary to show that a person had fraudulent or dishonest intention at the time of making promise in order to say that he had committed an act of cheating. Even mere failure to keep up the promise subsequently cannot be presumed as an act leading to cheat. In this case, it is clear that the disputes and grievances between the parties arose out of a Letter of Intent issued by the petitioners and accepted by the complainant. The allegation as made by the complainant was that he was verbally assured by some officials of the company that the agreement would be for minimum ten years. But admittedly, there is no material to sustain such contentions and as stated earlier, no oral evidence can be admissible in respect of the agreement between the parties based on written documents. Hence, even accepting the entire allegations and materials placed on behalf of the complainant, it cannot be said that the company or its officials had any intention to cheat or fraud the complainant at the time of entering into an agreement so as to make out an offence punishable under Section 420, I.P.C. 14. Similarly, so far as the offence under Section 406, I.P.C. is concerned, the allegation brought by the complainant was that the company and its officers illegally invoked his Bank guarantee causing him financial loss but it also remained admitted on record by the complainant that there were talks and negotiations regarding settlement of their claims and counter claims, and if at all the complainant has sustained any financial loss, he can seek redressal in appropriate forum but the facts as alleged did not make out a case of entrustment or misappropriation. 15. Thus, there being no material to make out offences punishable under Sections 420 of 406, I.P.C., the offence under Section 120-B, I.P.C. automatically fails. It may be mentioned further that the complainant tried to rope in the company and its officials without making any specific allegation against them individually excepting bare contention that one of the petitioners verbally induced him to enter into the agreement with assurance of long term business relationship. 16. Lastly, the cognizance for the offence, under Section 149, I.P.C. was a misnomer for there being no offence under Section 147, I.P.C, the offence under Section 149, I.P.C. cannot be attracted 17. 16. Lastly, the cognizance for the offence, under Section 149, I.P.C. was a misnomer for there being no offence under Section 147, I.P.C, the offence under Section 149, I.P.C. cannot be attracted 17. In consequence of the aforesaid discussions and findings, I am of the view that the order of cognizance and consequential direction for issuance of summons against the present petitioners by the learned S.D.J.M., Bhubaneswar by his order dated 18.02.2016 in I.C.C. Case No. 1867 of 2014 is not sustainable in the eye of law and is accordingly, quashed. Final Result : Allowed