JUDGMENT & ORDER : 1. By way of this petition under Section 482 Cr.P.C., the petitioners being the Directors of a firm named M/s. Range Power Experts Pvt. Ltd., have approached this Court for assailing the F.I.R. No.22 dated 3.2.2016 registered at the instance of the respondent No.2 complainant Vishwas Sharma against the petitioners for the offences under Sections 420, 406 and 120B I.P.C. at the P.S. Pokaran and all subsequent proceedings sought to be taken thereunder. 2. The fulcrum of the controversy revolves around a work order executed inter-se between the parties on 8.6.2015, the language whereof is relevant for deciding the instant misc. petition and is hence being reproduced hereinbelow in succinct: “A. Scope of Work: S. No. Item/Description Qty Rate per MW Total amount Providing and monitoring of site through suryodya, software developed by Tejas Engineering for single point monitoring of different projects, for data retention period of one year from the date of agreement. 1. Version1: 50 MW 10000/- Rs.500000/- 2. Version2: 50 MW 4000/- Rs.200000/- Total Price 700000(Seven Lac Only) Version 1: For professional monitoring of site by providing followings:- (I) Recording of PV data from all the inverters (II) All device access including mobile and tablets (III) Ability to add multiple sites on one dashboard (IV) Ability to add multiple plants on one dashboard (V) Live inverter stats with live chart of following:- (A) Power DC and power AC (B) Voltage AC and voltage DC (C) Ampens AC and DC (D) Temperature (E) Status (F) Frequency of inverter (G) KWH (H) MWH (I) Total production in a day (KWH produced) (J) Inverter efficiency VI. Live event highlighting (A) Inverter Trip (B) Inverter status change alert (C) Low Production Alert (D) Over Temperature Alert VII. Monthly and daily report (A) Daily inverter performance report (B) Monthly inverter performance report (C) Email daily production report of plants (D) Daily Cumulative plant performance report (E) Monthly Cumulative plant performance report VIII. Chart selection (A) Monthly chart (Bar graph) (B) Yearly chart (Bar graph) (C) Weekly chart (Bar/area graph) (D) Daily chart (Area graph) IX. Inviting other users to view a sub plant within the site] (Invitation to version 2) X Sending SMS/Email of important alerts to predefined numbers/email ID XI. Daily data would be stored for one year XII. Chart selection (A) Monthly chart (Bar graph) (B) Yearly chart (Bar graph) (C) Weekly chart (Bar/area graph) (D) Daily chart (Area graph) IX. Inviting other users to view a sub plant within the site] (Invitation to version 2) X Sending SMS/Email of important alerts to predefined numbers/email ID XI. Daily data would be stored for one year XII. Customized polling time Polling Time Device 1 min Inverter 1 min Weather Station 15 min SMB 15 min Transformer 15 min VCB 15 min Other Devices Monthly Joint Meter Reading Version2: For owner of the plant:- (I) Basic production data would be presented beer (II) Weekly production graphs/Monthly production graphs/Yearly production graphs (III) Data Retention for one year B. Terms and Condition 1. All taxes are at actual 2. 3 years Free service and feature request should be provided. Addition of feature requested would be dependent on feasibility of feature and only to enhance monitoring capabilities of Suryodya Travel charges and accommodation shall be in our scope. 3. Travel charges and accommodation shall be in our scope. 4. In case travel charges and accommodation not provided, then all expenditure incurred will be payable extra at the rate of Rs.3000/- per day which shall be paid on every week ending by the company. 5. Tejas Engineering will not be liable because of delay caused by hardware provided by Rays Power Expert, which included but not limited to PLC, PLC programming, malfunctioning devices like SMB, Transformer, Weather Station or any other device etc. 6. The data would be retained for one year. If meanwhile period is not extended. Tejas Engineering shall not be liable to provide the software/data after expiry of data retention period 7. Tejas Engineering shall not be liable for any damages on failure to rectify the defects by the company despite providing necessary data to the authority within time period 8. The software shall in no case be transferred or sub-lated to other agency without prior permission of Tejas Engineering. In case any tempering or misuse of software provided by us noticed during the currency of agreement period same shall be treated as breach of the contract and company shall be liable for compensation thereof. 9. The software shall in no case be transferred or sub-lated to other agency without prior permission of Tejas Engineering. In case any tempering or misuse of software provided by us noticed during the currency of agreement period same shall be treated as breach of the contract and company shall be liable for compensation thereof. 9. In case, any dispute or differences arising out during the currency of agreement period, same shall be referred to the third party to be appointed as “Arbitrator” in terms of Indian Arbitration and Conciliation Act with mutual consent of both the partied for settlement of disputes/differences. The decision of arbitrator shall be final and binding on both the parties. 10. In the event of any disputes arising between both the parties thereto in respect of any matter Jurisdiction of court shall be Rajasthan High Court at Jodhpur (Rajasthan). Subject: Work Order for AMC of solar SCADA with all network installation of wireless sensor for MODBUS and SMB Dear Sir, In reference to the discussions with you, on the subject matter, we are pleased to place this detailed work order, on the following terms and conditions. A. Scope of Work: Sr.No Item/Description Unit(MW) Price Amount(I NR) Disc.(12%) Total Amount (INR) 1 SURYODYA System-Solar SCADA with all network and as per SURYODYA VERSION-I 50 MW Rs.80000/ MW 4000000 480000 3520000 2 SURYODYA Client as per VERSION-II 50 MW Rs.10000/ MW 500000 60000 440000 3 Communication Interfaces 50 MW Rs.1500/ MW 75000 9000 66000 4 Alert Notification Service 1user/MW *10 site 500/MW/ User*10 250000 30000 220000 Total Amount (A) 4246000 Service Tax @ 14% on A 594440 Total Gross Amount(INR) 4840440 Total Gross Amount in words : Rupees Fourty Eight Lac Fourty Thousand Four Hundred Fourty Only 11. On a bare perusal of language of the contract and the terms and conditions settled between the parties, it is apparent that the total work order was for a sum of Rs.48,40,440/-. The complainant was mandated under the contract to install the entire solar SCADA system within 45 days and to provide statistics of PV data to the accused firm for a period of 12 months and also to retain data of the solar energy generated over the said period. The complainant started installation of the solar supervisory control and data acquisition system (for short “SCADA”) at the work site in Pokaran as per the terms of the contract. The complainant started installation of the solar supervisory control and data acquisition system (for short “SCADA”) at the work site in Pokaran as per the terms of the contract. However, it appears that the undertaking between the parties started deteriorating in October 2015 even before the data collection work could be initiated under the project and thus, the petitioners gave a final notice of cancellation to the complainant on 21.11.2015. It is relevant to mention here that as per the work contract, commissioning of the hardware and machinery was required to be finished within a period of 45 days from the date of issuance of the work order and thereafter, the data collection and transmission was to ensue. Significantly enough, the work order does not account for any cost to be borne towards the software required for the project which presumably was for the second party i.e. the complainant herein to bear. Needless to say that before venturing into such a huge project involving installation and operation of complex electronic systems, the contractor concerned would have to be equipped with an appropriate software, well in advance so as to meet the stipulated targets. Be that as it may. Excerpts of whatsap messages exchanged inter-se between the complainant and the accused well before issuance of the termination letter dated 21.11.2015 form an integral part of the notice dated 27.11.2015 given by the complainant to the accused and have a material bearing on the controversy at hand. Hence, the same are reproduced hereinbelow for the sake of ready reference:- “6 Nov 2015 Can we meet tomorrow morning At 11’O clock 7 Nov 2015 Hello Pls. come after 2 pm now I am going to bank now Ok train got delayed will meet at 2 now Ok no issue Reached office Waiting in office ?? I have a train to catch We are taking the unused material from the site tomorrow and will let you know the details of what has been used by your team” 12. In these messages exchanged between the parties from 6.11.2015 onwards, the complainant agreed that he would be lifting the unused material from the site very shortly and that the accused would have to bear the cost of the used material. The accused agreed to the said suggestion and requested the complainant to suitably adjust the amount. In these messages exchanged between the parties from 6.11.2015 onwards, the complainant agreed that he would be lifting the unused material from the site very shortly and that the accused would have to bear the cost of the used material. The accused agreed to the said suggestion and requested the complainant to suitably adjust the amount. It appears that after receiving the notice sent by the accused, a design started formulating in the mind of the complainant, who in turn, issued a notice dated 27.11.2015 to the accused, raising therein a demand of Rs.46,90,982/- after deduction of a sum already received i.e. Rs.5,66,257/- from them towards the disputed contract. The most significant and burgeoning part of this demand as reflected from the notice is a huge sum of Rs.44,70,000/-, which was raised towards software development charges allegedly borne by the complainant for the period between 27.7.2015 to 21.11.2015 involving the input of 1490 Man Hours. In the notice, the said period has been stretched to 149 days whereas, going by the calendar, it comes to only 116 days. Be that as it may. After giving the said notice and purportedly, upon not receiving any positive response from the accused, the impugned F.I.R. No.22/2016 came to be lodged by the complainant at the P.S. Pokaran with the allegation that the accused persons fraudulently induced the complainant to execute the contract; made him to deploy and install costly instruments and hardware etc. at the site and thereafter, refused to pay cost of the work executed by the complainant and deprived him of his lawful entitlement under the contract thereby fraudulently cheating him and also committing the offence of criminal breach of trust and misappropriation. The accused petitioners have approached this Court seeking quashing of the aforesaid F.I.R. by preferring the instant misc. petition under Section 482 Cr.P.C. 13. Shri Mahesh Bora learned senior counsel representing the accused petitioners vehemently urged that ex-facie, the allegations set out in the F.I.R. do not disclose the necessary ingredients of the offences alleged and hence, the very registration and continuance of investigation thereof amounts to a gross abuse of process of law and the same deserves to be quashed. He urged that the complainant, expressly agreed to the termination of contract as is evident from the messages admittedly exchanged between the parties on 6.11.2015 and 7.11.2015 which form an internal part of the record. He urged that the complainant, expressly agreed to the termination of contract as is evident from the messages admittedly exchanged between the parties on 6.11.2015 and 7.11.2015 which form an internal part of the record. In such communication, the complainant never raised any issue regarding the huge amount of Rs.44 lacs allegedly borne by him towards the so-called software development. He urged that malafide intention of the complainant is writ large on the face of the record, inasmuch as, he has raised a bill for software development charges for a period of 15 days even after 7.11.2015 by which date, he had already started dismantling the equipments from the site. He further submits that as per the admitted terms and conditions of the contract, the petitioners were not liable to bear the software development charges which the complainant was expected to possess from before. As per Shri Bora, if the complainant was not having the software available with him, then he could not even have ventured into the work contract because commissioning of the hardware and collection and forward transmission of data in the prescribed period as per the contract would be impossible unless the complainant had access to the software in advance. He further urges that as per the contract, the complainant was to supply daily data to the accused for a period of one year from the date of commissioning of the SCADA system, which was to be set up within a period of 45 days from execution of the work order. However, the complainant did not supply data of even a single day to the accused, who in turn had to engage services of a third party for completing the work in order to fulfill their obligations towards Today Green Energy Project (Governemnt of India initiative) which is the principal party of the entire solar project. He relies upon the decision rendered by Hon'ble Supreme Court in the case of Vesa Holdings P. Ltd. & Ors. Vs. State of Kerala & Ors. reported in (2015)8 SCC 293 and urges that a dispute purely civil in nature, has been malafide given the colour of a criminal case by misusing the criminal process in order to pressurise the accused and extort money from them. Vs. State of Kerala & Ors. reported in (2015)8 SCC 293 and urges that a dispute purely civil in nature, has been malafide given the colour of a criminal case by misusing the criminal process in order to pressurise the accused and extort money from them. He thus contends that the impugned F.I.R. deserves to be quashed as the same was lodged with sheerly ulterior motive and it does not disclose the necessary ingredients of the offences alleged. 14. Per contra, learned Public Prosecutor assisted by the Investigating Officer Shri Jainarayan, Addl. S.P., Jaisalmer and learned senior counsel Shri G.R.Poonia assisted by Shri Farzand Ali Advocate representing the respondent No.2 complainant vehemently opposed the submissions advanced by the petitioners’ counsel. They urged that three different Investigating Officers have found the offences proved against the accused after thorough investigation. They further contended that the petitioners fraudulently induced the complainant into carrying out installation of costly electronic material at the site with a grossly fraudulent design because they never intended to honour their commitment under the contract. Their intention was fraudulent from the inception. The complainant put in long hours of manpower and developed the software for the petitioners’ advantage with their express consent and when a bill was genuinely raised towards the software development, the petitioners resiled from their assurance and refused to make payment thereof causing huge undue wrongful loss to the complainant. They further buttressed that the pre-arrest bail application filed by the accused stands rejected by this Court and hence, it is not such a case wherein, this Court should feel persuaded to exercise its inherent powers for quashing the F.I.R. at the inception. 15. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and have gone through the material available on record. 16. The genesis of the entire controversy revolves around the work contract executed between the parties on 9.6.2015. As per the terms of contract, the complainant was required to set up a solar SCADA system with wireless network etc. and to provide PV (photovoltaic) data to the accused over a period of one year from the date of installation. It is an admitted position from the record that not even a single day’s data was provided by the complainant to the accused. and to provide PV (photovoltaic) data to the accused over a period of one year from the date of installation. It is an admitted position from the record that not even a single day’s data was provided by the complainant to the accused. The said factual matrix is manifest from the record and the case diary because even the installation work of the machinery could not be completed by the complainant within the stipulated period of 45 days as per the work contract. As per the Investigating Officer, the installation was completed on 1.10.2015. Whatsapp messages for dismantling the machinery and equipment were exchanged between the accused and the complainant on 6.11.2015 and 7.11.2015. The petitioners expressly terminated the contract on 21.11.2015. Even during this period i.e. from the date of completing installation to the date of termination of the contract by the accused, admittedly no data was provided by the complainant because even as per his own case, the complainant was still developing the required software till 21.11.2015. Even in the detailed and highly belated F.I.R. lodged by the complainant, there is no such aspersion that any data was ever provided by the complainant to the accused in terms of the work contract. In the whatsap messages exchanged between the parties on 6th and 7th November 2015, (reproduced supra), the complainant affirmatively responded to the suggestion of the accused and accepted that he would be taking the unused material from the site and would provide the details of material consumed in the project to the accused, who suggested that the amount towards the unused material should be adjusted. The complainant categorically replied that all unused material would be taken back and the amount would be adjusted and only what was used would be charged. Thus, apparently, the complainant had no issue regarding any loss caused to him towards development of software till that date. The burgeoning demand raised by the complainant in the notice dated 27.11.2015 and in the F.I.R. is majorly constituted of the software development charges projected at Rs.44,70,000/-. Thus, apparently, the complainant had no issue regarding any loss caused to him towards development of software till that date. The burgeoning demand raised by the complainant in the notice dated 27.11.2015 and in the F.I.R. is majorly constituted of the software development charges projected at Rs.44,70,000/-. During the course of hearing, repeated queries were made from the Investigating Officer, the learned Public Prosecutor as well as learned Senior Counsel representing the complainant as to whether any cogent evidence has been provided by the complainant till date for verifying the aspersion that any such amount was spent towards development of software charges or whether any such software was actually developed but no satisfactory reply was offered for this pertinent query. The Investigating Officer candidly conceded that no documentary or electronic record has been provided by the complainant so far, so as to substantiate this allegation till date. For the sake of repetition, it may be mentioned here that in the contract executed between the parties, there is no such stipulation that the accused would be responsible to bear the charges of software development if any, required for commissioning the project. The break up of the work as described in the contract does not account for any such cost factor. The period claimed to have been spent by the complainant for software development i.e. 25.7.2015 comes to 116 days only. The complainant has blown up that period to 149 days in his notice. Furthermore, what persuaded the complainant to continue the development of software much after the parties decided to terminate the contract i.e. after 6.11.2015, is totally in the realm of unknown. Admittedly, out of the expenditure of Rs.7,87,240/- borne by the complainant towards installation of hardware and equipments etc. and for boarding and lodging charges etc. the accused made a payment of Rs.5.66 lacs as per the complainant’s own case. Shri Bora learned Senior Counsel representing the petitioners made a fair offer right at the inception that his client are ready to make payment of the balance amount towards these expenses. However, the complainant’s counsel out-rightly rejected the said suggestion. 17. It is the firm opinion of this Court that it is not a case wherein even a remote inference can be drawn that the accused intended to cheat the complainant at the inception of the contract. However, the complainant’s counsel out-rightly rejected the said suggestion. 17. It is the firm opinion of this Court that it is not a case wherein even a remote inference can be drawn that the accused intended to cheat the complainant at the inception of the contract. It is the complainant’s admitted case that the accused made payment of a significant percentage of the cost of the hardware installed as well as the logistics involved in commission of the project. No element of entrustment or criminal breach of trust is indicated from the admitted allegations of the complainant because it is the complainant, who was all along having control over the equipment installed at the site and he himself removed the same after exchange of the whatsapp messages with the accused. Thus, neither the offence under Section 420 I.P.C. nor that under Section 406 I.P.C. can be held to be made out from the highest allegations of the complainant so as to warrant prosecution of the accused for these offences. 18. In view of the discussion made hereinabove, it is the firm opinion of this Court that the impugned F.I.R. even if read as a whole, does not disclose the necessary ingredients of any offence whatsoever and rather it has been lodged with a totally malafide and ulterior motive with false and frivolous allegations. Allowing investigation of such a frivolous F.I.R. would be nothing short of a gross abuse of process of law. The complainant, as a matter of fact should be hauled up for misusing the process of criminal law. Much stress was laid by learned Public Prosecutor on the fact that the pre-arrest bail application of the accused stands rejected by this Court. The said fact is hardly of any relevance while considering a petition filed under Section 482 Cr.P.C. for quashing of the F.I.R., because bail is a matter of moment whereas, while considering a petition for quashing of proceedings, this Court is required to apply its mind to the merits of the case so as to find out whether allegations of the complainant constitute the necessary ingredients of the offences alleged or not. Thus, the rejection of the pre-arrest bail filed on behalf of the accused cannot prejudice the decision of this misc. petition in any manner whatsoever. Thus, the rejection of the pre-arrest bail filed on behalf of the accused cannot prejudice the decision of this misc. petition in any manner whatsoever. In the judgment of Vesa Ram (supra), the Hon'ble Supreme Court considered almost a similar set of facts and quashed the proceedings undertaken against the accused for the offence under Section 420 I.P.C. considering the aspect that the complainant failed to make out a case regarding the accused having intention to cheat right at the inception of the contract. Same is the situation in the case at hand. 19. In view of the above discussion, the misc. petition deserves to be and is hereby allowed. The impugned F.I.R. No.22/2016 registered at the P.S. Pokaran, District Jaisalmer and all subsequent proceedings sought to be taken thereunder against the petitioners are hereby quashed. Stay petition is also disposed of.