ORDER : 1. This petition under section 482 of the Code of Criminal Procedure (for short “the Code”) has been filed for quashing FIR No. 168 dated 17-11-2011, final Report No. 15/12 and proceeding in Criminal Case No. 310/2012 pending before the Judicial Magistrate First Class, Dhar. 2. Brief facts of this case are that on 19-3-2010 applicant proprietor of the firm M/s Lorven Rock Breakers and non-applicant No. 2 entered into a purchase agreement for supply of crushed aggregates of all sizes for 24 months for construction of four laning Indore to Madhya Pradesh - Gujrat border. On 1-11-2011, non-applicant No. 2 filed a complaint against the applicant stating that as per agreement till September, 2010 applicant has supplied the material, thereafter the applicant has supplied the crushed aggregates less than required quantity, however, applicant informed and assured non-applicant that in future he will make available the material in time. But he has failed to supply the material. Thus he made a false assurance that he will supply the material in time. Non-applicant for supplying the material gave advance money Rs. 2,90,00,000/- (Rupees Two Crores Ninety Lakhs). The applicant has not supplied the material and returned the money. Hence, he has cheated the non-applicant. Learned Magistrate has sent the complaint under section 156(3) of Code to Police Station Tirla, District Dhar, with a direction to register the offence and file final report, hence Crime No. 168/11 under section 420 of Indian Penal Code was registered against the applicant at Police Station Tirla. After investigation final report has been filed against the applicant for offence under section 420 of Indian Penal Code. Being aggrieved applicant filed this petition for quashment of FIR so also further proceedings pending before the Judicial Magistrate First Class, Dhar on the following grounds:- (i) There is a business transaction and there is no allegation in the complaint that at the very inception of the contract between the parties there was any intention to cheat the non-applicant. (ii) The complaint pertains to a civil case of breach of contract and not a criminal case of cheating. 3. The non-applicant No. 2/complainant resisted the petition on the ground that the case is fixed before the trial court for charge, hence, the petition is not maintainable. 4. After hearing learned counsel for the parties, perused the record. 5. (ii) The complaint pertains to a civil case of breach of contract and not a criminal case of cheating. 3. The non-applicant No. 2/complainant resisted the petition on the ground that the case is fixed before the trial court for charge, hence, the petition is not maintainable. 4. After hearing learned counsel for the parties, perused the record. 5. It is clear from the allegations made in the complaint and the police statements that the applicant entered into an agreement with non-applicant No. 2 for supply of crushed aggregates of all sizes for 24 months. Till September, 2010 applicant has supplied the material as per agreement, however, thereafter he has supplied the material in less quantity than the required quantity. The applicant has assured that in future he will supply the material as per requirement, however, after repeated correspondence the applicant has failed to supply the material in required quantity and has not returned the advance amount Rs. 2,90,00,000/- to the non-applicant. 6. There is no allegation in the complaint that at the time of arriving at such agreement applicant induced non-applicant No. 2 to enter into an agreement with a view to cheat him. It is not a case that there was no supply of material as it is averted that after the agreement the applicant has supplied the material as per requirement till September, 2010 and thereafter he supplied the material less than the required quantity. The allegations made against the applicant that he assured that he will supply the material in required quantity, however, he failed to do so. This is a case of breach of promise and not cheating. Hon’ble Apex Court in the case of S.N. Palanitkar vs. State of Bihar, 2001 Cr. L.J. 4765 (SC) held that:- “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.” 7. Hon’ble Apex Court in the case of Anil Mahajan vs. Bhor Industries Limited, (2005) 10 SCC 228 held that:- “The substance of the complaint is to be seen. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” 7. Hon’ble Apex Court in the case of Anil Mahajan vs. Bhor Industries Limited, (2005) 10 SCC 228 held that:- “The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay.” 8. Hon’ble Apex Court in the case of Uma Shankar Gopalika vs. State of Bihar, (2005) 10 SCC 336 held that:- “It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under section 420, Indian Penal Code.” 9. Keeping in view the dictum of Hon’ble Apex Court, I am of the view that the complaint and police statements do not disclose the offence under section 420 of Indian Penal Code. 10. There is no allegation in the complaint and the police statements that the advance amount was entrusted to the applicant and he has dishonestly converted the same to his own use, thus, there is no evidence that the applicant committed any offence punishable under section 406 of the Indian Penal Code since ingredients of that offence are not satisfied. 11. With the aforesaid, I am of the view that if the complaint and police statements be taken in its entirety, no offence under section 420 and 406 of Indian Penal Code has been made out against the applicant. In such circumstances, registration of offence against the applicant and to continue the prosecution against the applicant is not justified. 12. 11. With the aforesaid, I am of the view that if the complaint and police statements be taken in its entirety, no offence under section 420 and 406 of Indian Penal Code has been made out against the applicant. In such circumstances, registration of offence against the applicant and to continue the prosecution against the applicant is not justified. 12. Hon’ble Apex Court in the case of S.N. Palanitkar (supra) held that in such a situation High Court should exercise power under section 482 of Criminal Procedure Code in appropriate cases to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants exercise of inherent power is not only desirable but necessary also so that the judicial forum of court may not be allowed to utilize for any oblique motive. Thus, having regard to the facts and circumstances stated above the FIR, final report and the criminal proceedings in Criminal Case No. 310/12 pending before the Judicial Magistrate First Class, Dhar are hereby quashed and applicant is discharged from the offence under section 406 and 420 of Indian Penal Code. Thus, petition stands allowed.