ORDER : 1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been filed by the petitioners who are arraigned as accused No.1 to 3 in Crime No.165/2014 for having committed offences punishable under Sections 406, 420 and 34 of the Indian Penal Code. They seek to quash the final report. 2. The brief facts that could be culled out from the pleadings and records would show that the petitioners are the owners of certain extent of property in Erumapetti village. The de facto complainant lodged a complaint before the Judicial First Class Magistrate, Wadakkanchery alleging that on 2.9.2013 the petitioners have entered into an agreement for sale of their properties to him and his brother for a total sale consideration of 7,10,00,000/-. An advance amount of Rs.2,25,00,000/-was also received on the very same day. The period fixed for performance of the sale agreement was 31.12.2013. But the petitioners failed to execute the sale deed in their favour as promised and also failed to return the advance amount received by them. Though the de facto complainant approached him for the advance amount on failure to execute the sale deed, two cheques were handed over to them making them to believe that sufficient amount are in the account and he could encash the same. But the cheques were dishonoured when presented for encashment for the reason that the signatures in the cheques were incomplete. Since the intention of the petitioners was to cheat the de facto complainant he has lodged the complaint before the Judicial First Class Magistrate Wadakkanchery which was forwarded to the police, Erumapetty and FIR No.165/2014 was registered under Sections 406, 420 read with Section 34 of the Indian Penal Code. After investigation the final report was filed before the Magistrate Court against these petitioners. The petitioners have approached this Court to quash the final report filed against them contending that the dispute between the parties is purely of civil nature and hence the criminal proceedings registered against them on the basis of the averments in the complaint which is of civil nature is only an abuse of the process of the court and the same is liable to be quashed exercising the jurisdiction under Section 482 of the Code. 3. Heard Sri.K.Ramkumar, the learned Senior Counsel appearing for the petitioners, Sri. 3. Heard Sri.K.Ramkumar, the learned Senior Counsel appearing for the petitioners, Sri. G. Sreekumar, the learned counsel for the 3rd respondent, Smt. M.K Pushpalatha the learned Public Prosecutor and perused the records. 4. The case of the de facto complainant is that the first petitioner is the owner of certain properties which he obtained as per document Nos.2873/2012 and 2875/2012 of SRO, Erumapetty. The second petitioner is the owner of another set of property which she obtained by virtue of document No.2874/2012. The third petitioner is also in possession and enjoyment of certain properties as per document No.2872/2012. While they were enjoying the properties, they approached him expressing their willingness to sell their properties. The de facto complainant agreed to purchase the properties and an agreement for sale was executed on 02.09.2013 whereby they agreed to sell those properties for a total sale consideration of Rs.7,10,00,000. His further case is that the agreement was to execute the sale deed on or before 31.12.2013 and an advance amount of Rs.2,25,00,000/-was received by them on the very same day. Though he was ready to get the assignment deed executed in his favour after paying the balance sale consideration as agreed, they sought for extension of time for performance of the sale agreement and demanded further amount for execution of the sale deed. As there was failure on the side of the petitioners to execute the document a lawyer notice was issued on 29.12.2013. Thereafter the petitioners approached him and expressed their willingness to return the advance amount with interest. He agreed for the same and thus the sale agreement was cancelled. For return of the advance amount two cheques for Rs.45,00,000/-each were issued in favour of the de facto complainant making him to believe that the cheque will be honoured on presentation. They also agreed to return the balance amount with reasonable interest. But, the cheques were dishonoured when presented for encashment due to insufficiency of funds as well for the reason that the signatures in the cheques were incomplete. Since it was realised that he was cheated by the petitioners he lodged the complaint and thus the FIR was registered. 5. Admittedly, the de facto complainant and his brother had filed a suit for return of money before the Sub Court, Thrissur as O.S.No.244/2014. The suit was tried and by Annexure-B judgment dated 19.3.2015, the same was dismissed. 6. Since it was realised that he was cheated by the petitioners he lodged the complaint and thus the FIR was registered. 5. Admittedly, the de facto complainant and his brother had filed a suit for return of money before the Sub Court, Thrissur as O.S.No.244/2014. The suit was tried and by Annexure-B judgment dated 19.3.2015, the same was dismissed. 6. The learned Senior Counsel has contended that the transaction involved in the case is purely of civil nature and the suit instituted on the basis of the allegations levelled against the petitioners was dismissed, but the criminal proceedings are still pending which amounts to gross abuse of the process of court. The petitioners challenge the final report mainly for the reason that criminal proceedings will not lie against them as the dispute between the parties was purely of civil in nature and the civil suit was also filed and so the criminal proceedings against them is purely miscarriage of justice and hence liable to be quashed, exercising the inherent jurisdiction under Section 482 of the Cr.P.C. Admittedly, the civil suit filed by the de facto complainant was dismissed on merits by the judgment rendered by the learned Sub Judge in O.S.No.244/ 2014. Appeal has been filed challenging the verdict. 7. The learned counsel for the petitioners relying on the decisions rendered by the Honourable Apex Court submits that when a civil remedy is available and the party is adopting it, the court should not hesitate to quash the criminal proceedings to prevent abuse of process of court. 8. In All Cargo Movers (India) Pvt. Ltd and Others v. Dhanesh Badarmal Jain and Another [ (2007) 14 SCC 776 ] it has been held that “Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice”. 9. In Devendra and others v. State of Uttar Pradesh and Another [ 2009 (7) SCC 495 ] it has been held as follows: “14. It was, however, submitted that by reason of execution of a deed of sale claiming title over the property, which the appellants were not entitled to, the respondent complainant had been cheated. It is difficult to accept the said contention. The appellants had not made any representation to Respondent 2. No contract and/or transaction had been entered into by and between the complainant and the appellants. 15. “Cheating” has been defined in Section 415 of the Penal Code as follows: “415. Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.” 10. In Paramjeet Batra vs. State of Uttarakhand and others (2013 (1)KLD 256(SC) it is held that : “While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of Court.” 11. The Apex court observed in Rashmi Jain v. State of Uttar Pradesh and another [ (2014) 13 SCC 553] it is observed that: “If the appellants have committed breach of agreement, it is open to Respondent 2 to seek redressal in a competent court or forum to recover damages, if permissible in law in case he had sustained any loss, 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.” 12. In paragraph No.11 in Tamil Nadu Mercantile Bank Ltd. v. State through Deputy Superintendent of Police and Another [ 2014 (3)SCC 755 ], the Supreme Court observed that: “It is also a law settled by this Court and reiterated in the case of Monica Kumar v. State of U.P., that criminal proceedings can continue even if the allegation discloses a civil dispute also. It is only when the dispute is purely civil in nature but still the party chooses to initiate criminal proceeding, the criminal proceedings may be quashed. For such purpose also the Court, save and accept in very exceptional circumstances would not look to any document relied upon by the defence.” 13. It is only when the dispute is purely civil in nature but still the party chooses to initiate criminal proceeding, the criminal proceedings may be quashed. For such purpose also the Court, save and accept in very exceptional circumstances would not look to any document relied upon by the defence.” 13. In MEDMEME, LLC AND Others v. M/S.IHORSE BPO Solutions Pvt.Ltd. [ AIR 2017 SC 3656 ] it is held that : “After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences under Sections 420, 406, 409 read with S.120B of IPC even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the respondent had alleged breach of contract on the part of the appellants in not making the entire payments for the services rendered to the appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the appellants to the respondent-company for the services rendered.” 14. The petitioners are charged for the offences under Section 406 and 420 read with Section 34 of the Indian Penal Code. Section 405 of IPC reads as follows: “405. Criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". [Explanation [1]-A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2-A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under. the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]” Section 406 deals with the punishment prescribed for Section 405. Section 406 reads as under: “406. Punishment for criminal breach of trust Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 15. The essential ingredients of the offence of criminal breach of trust: (1) the accused must have been entrusted with property or dominion over it and (2) the accused must have misappropriated the property or disposed of that property in violation of such trust. 16. Section 420 reads as follows: 420. The essential ingredients of the offence of criminal breach of trust: (1) the accused must have been entrusted with property or dominion over it and (2) the accused must have misappropriated the property or disposed of that property in violation of such trust. 16. Section 420 reads as follows: 420. Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 17. A conjoint reading of these two sections make it clear that the ingredients of the offence under Section 406 IPC and the offence under Section 420 IPC are different. For cheating, criminal/dishonest intention is necessary at the very inception itself, but for criminal breach of trust, mere proof of entrustment of property on trust or dominion over the property to a person, in whom confidence is placed as to custody or management, misappropriation or conversion of the property to his own use or disposal and subsequent conduct are relevant. In short misappropriation for unlawful gain by subsequent conduct attracts an offence punishable under Section 406 IPC but dishonest intention at the time of making promise attracts an offence under Section 420 IPC. The reason for non-execution of the document or non-performance of the sale agreement; may be for various reasons. The basis for initiating the criminal case is the failure on the side of the petitioners to execute the sale deed in favour of the de facto complainant after receipt of the balance sale consideration, is discernible from the records. Every offence of criminal breach of trust of course involves a civil wrong but only if all the ingredients as defined in the statute are satisfied, a criminal prosecution is sustainable or justified. Criminal proceedings should not be encouraged when mens rea is lacking in the issue involved and the transaction between the parties is one of civil nature. The civil suit filed by him for return of the advance amount was dismissed by the learned Sub Judge and the said judgment is under challenge. Criminal proceedings should not be encouraged when mens rea is lacking in the issue involved and the transaction between the parties is one of civil nature. The civil suit filed by him for return of the advance amount was dismissed by the learned Sub Judge and the said judgment is under challenge. But as the dispute between them is purely a civil dispute, initiating criminal proceedings definitely amounts to an abuse of the process of the court. In this view, I find that no prima facie case is made out under sections 406 and 420 IPC. If an offence under Section 138 of the Negotiable Instruments Act is committed, the de facto complainant can proceed against the petitioners, if advised so. However, as the dispute is of civil nature, applying the ratio of law laid down by the Supreme Court in the decisions referred above, I am inclined to exercise my inherent power for the purpose of quashing the final report, to do justice to the parties as well to save the precious time of the trial court. Accordingly, this petition is allowed. The final report under challenge stands quashed as prayed for.