ORDER : 1. The application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR bearing C.R. No. I – 06 of 2017 registered with Salabatpura Police Station, Surat, for the offences punishable under Sections 406 and 420 of the Indian Penal Code. 2. The petitioner states that he is a director of the registered company, doing its business in the name and style of “Maayu Import and Export Limited”, having its registered office at 103, 3rd Cross Street, Colombo-11, with new registered office address at No.208, Main Street, 4th Floor, Colombo-11. The petitioner company has come into existence in the year 2009 and is doing the business of textiles, fabrics, readymade garments. The petitioner states that the company has earned a lot of reputation all throughout the country, the company has entered into commercial transaction with various companies and had never entered into any default and the company believes into maintaining relations. 2.1 The petitioner states that his company has placed some orders from the company i.e. M/s. Oswal Overseas in the end of 2013 and all the transactions with regard to the said transactions were carried out between the company of the petitioner and M/s. Oswal Overseas. During this period the petitioner states that his company has received the goods and had also paid relevant customs duties and taxes at the Customs Department (Customs Duty, Sri Lanka Port Authority Charges (SLPA Charges) AE Charges + D.O. Charges + Yard Rent Charges + Transport Charges + Clearing Agencies Charges) at the Customs Department at Sri Lanka alongwith the invoices sent by M/s. Oswal Overseas. However, on receipt of such invoices, the petitioner company had made part payment to the said company and it is stated that the invoices raised by M/s. Oswal Overseas were amounting to No. 01. US$20020.05, Invoice No.00 Exp/20 dated 06.12.2013 (2013/2014), No. 02. US$16418.05 Invoice No. 00/Exp/23/24/27 dated 03.01.2014 (2013/2014), No 3.US$ 20763.95 Invoice No.00/Exp/12/13/14 dated 10.03.2014 for the period of 2013-14. 2.2 The petitioner submitted that his company came to know that M/s. Oswal Overseas was sending goods with the overprices invoices, therefore, the petitioner was constrained to confront the same with the said company. It is stated by the petitioner that M/s. Oswal Overseas had over-invoiced by US$ 76753.34 against the Invoice amount US$ 16418, Invoice No.00/Exp/23/24/27 dated 03.01.2014 (2013/2014). 2.2 The petitioner submitted that his company came to know that M/s. Oswal Overseas was sending goods with the overprices invoices, therefore, the petitioner was constrained to confront the same with the said company. It is stated by the petitioner that M/s. Oswal Overseas had over-invoiced by US$ 76753.34 against the Invoice amount US$ 16418, Invoice No.00/Exp/23/24/27 dated 03.01.2014 (2013/2014). It is stated by the petitioner that during the said period, it came to the knowledge of the petitioner that the respondent No.2-complainant had preferred a false complaint on 21.05.2016 through the Hon’ble Minister of External Affairs, Overseas Indian Affairs, against the petitioner-company. The said complaint was sent through Indian Embassy at Sri Lanka, therefore he was called upon to give the explanation, he appeared before Indian Embassy alongwith all the relevant documents and pointed out that he does not know the complainant and further pointed out that he is transacting with M/s. Oswal Overseas and had also made part payment to the said company. 2.3 It is further stated by the petitioner that he had given a response in writing vide letter dated 18.08.2016 addressed to Secretary, Indian High Commission, and therefore, in this background, the petitioner states that when the complainant has failed to harm the reputation of the petitioner by putting false claims before Indian Embassy, he had filed impugned FIR on 03.01.2017 after a gross and unexplained delay of 3 years. It is further stated by the petitioner that he had no privity of contract with the respondent No.2 and therefore the respondent No.2 cannot make any claim against his company by making false complaint. 3. The complainant – Respondent No.2 Manishbhai Rajeshwarprasad Gupta inter alia in his FIR says that he was running a Shop No.1221 as Urvashi Silk Mills at Surat Textile Market, Salabatpura, Ring Road, Surat, since last 20 years and doing the business of Sarees. Then from 2012 to 2014 he was having his business at Surat Textile Market Parking Project in Shop No.133 in the name and style as `Ansh Prints’. The business was to process the Grey Clothes from weavers, and after process of `Dyeing Prints’ and `Bal Print’, the goods were sent for `work’, and after cutting of saree and packing at his shop, the same is sold to the parties directly or through broker(dalal) as per their order. The quality of saree is Reniyel, Georjet and Siphon. The business was to process the Grey Clothes from weavers, and after process of `Dyeing Prints’ and `Bal Print’, the goods were sent for `work’, and after cutting of saree and packing at his shop, the same is sold to the parties directly or through broker(dalal) as per their order. The quality of saree is Reniyel, Georjet and Siphon. 3.1 The complainant states that in the month of March 2012 the petitioner Ashok Jain, had not come through broker(dalal), but had directly come to his Shop No.133 run as `Ansh Prints’ and informed him that the quality of the goods of the complainant was convenient to him and that he wanted those goods and told him that he is doing the business at the office situated at Maayu Import and Export Private Limited, Maayu Impex No.103, Third Cross Street, Colombo 11, Sri Lanka and he also holds an office at Chennai. 3.2 The accused gave him his visiting card and the complainant showed him the samples. The complainant inquired from the accused about his dealing in the local market, to that the accused gave him the names of `GTex’ and `Mayur Sarees’ at Ring Road, Surat, and said that he was purchasing Sarees from other dealers, too. 3.3 The complainant further states that the accused after 2 or 3 days came to his office and asked the complainant to show him another samples, it is contended that though the samples were liked by the accused, still he placed the order as per his demand and assured him that the payment may be made by way of cheque within 60 to 90 days. The accused had given his address and had assured him of timely payment and the accused also informed him that he has house in Chennai and he knows many of the political persons, the complainant states that on his assurance, and on trust, he decided to give the goods as per the order of accused – Ashok Jain, who asked him to send the goods to his office situated at Maayu Imports and Export Private Limited, Maayu Impex No.103, Third Cross Street Colombo 11, Sri Lanka. The complainant states that since the goods were to be sent out of India and he was not possessing import and export licence therefore the accused asked him to send the goods through Vikrambhai Mahendrabhai Barmecha – owner of M/s. Oswal Overseas having its office at Raghunandan Textile Market. The complainant states that accordingly the owner of M/s. Oswal Overseas i.e. Vikrambhai Mahendrabhai Barmecha agreed to send the goods to him at Sri Lanka, and therefore, the complainant, after preparing the invoice bill and packing list from his shop `Ansh Prints’ in two copies sent the goods through his permanent tempo transporter and states that the goods were collected by M/s. Oswal Overseas at Raghunandan Market, and he has the receipt of such delivery. 3.4 The complainant further states that after cutting the sarees he used to send the goods. From 16.10.2013 to 05.03.2014 by different running bills of Reniyal and Sarees with work and cotton work quality goods of 75,515 mtr., and 44,753 pieces with saree packing material and stickers alongwith hand work of pearls and stones etc., worth Rs.39,18,108/- were sent to the accused through Vikrambhai Mahendrabhai Barmecha – owner of M/s. Oswal Overseas. 3.5 The complainant states that Vikrambhai Mahendrabhai Barmecha - owner of M/s. Oswal Overseas has produced before him invoice bill and packing list of the goods which were sent at Sri Lanka. The container bill and custom clearance bill of the goods were produced wherein the goods in accordance with packing list No.AP 1 to 98 were sent to the accused at Sri Lanka. The complainant further states that the packing list No.AP – 99 to 103 worth Rs.4,46,764/- for some reason could not sent by Vikrambhai Mahendrabhai Barmecha to the accused at Sri Lanka, and as Vikrambhai paid the money of the said goods, he accepted the same, and therefore, he states that total goods valued Rs.34,71,344/- were sent to the accused. 3.6 The complainant alleges that, in January 2014, within the stipulated period the complainant asked the accused to make the payment, at that time, the complainant complained about some financial crunch, and assured him to make the payment later on. 3.6 The complainant alleges that, in January 2014, within the stipulated period the complainant asked the accused to make the payment, at that time, the complainant complained about some financial crunch, and assured him to make the payment later on. The complainant states that till March 2014 he has sent the goods in accordance to the order of the accused, but, inspite of repeated demand, no payment was made and therefore he himself had gone to Sri Lanka to visit the accused, and at that time, the accused had assured him for payment, and therefore, he returned back to Surat and thereafter he repeatedly called him on mobile phone, the complainant alleges that lastly in the month of March 2016 the accused stopped receiving his calls. 3.7 The complainant has also stated about the business of petitioner with Vikrambhai Mahendrabhai Barmecha of M/s. Oswal Overseas in the FIR and has alleged that the accused had also failed to make the payment to M/s. Oswal Overseas. He states that being defrauded, he filed a complaint of cheating and criminal breach of trust. 4. Mr. Anshin Desai, learned Senior Advocate appearing alongwith Mr. Nandish Thacker, learned advocate for the petitioner submitted that the transaction is purely civil in nature and the impugned FIR is nothing but an action for recovery of time barred claim of money. Mr. Anshin Desai, learned Senior Advocate for the petitioner submitted that impugned FIR shows the tripartite agreement; no notice was issued for payment of money. Learned Senior Advocate for the petitioner stated that there was no cheating but it is a business transaction, as there is no entrustment of goods so there could not be any consideration. Learned Senior Advocate for the petitioner further stated that Vikrambhai Mahendrabhai Barmecha – owner of M/s. Oswal Overseas has not been made an accused in the matter, and he submitted that for exclusive civil transaction, a criminal flavour has been given. 4.1 Mr. Anshin Desai, learned Senior Advocate for the petitioner submitted that the complainant has defamed the petitioner by moving to the External Affairs Department, a look out notice, was quashed by this Court in the proceedings under Criminal Misc. Application No. 2587 of 2019. Learned Senior Advocate Mr. Anshin Desai states that there was 90 days credit for the goods and therefore there was no reason for the complainant to wait for 3 years. Application No. 2587 of 2019. Learned Senior Advocate Mr. Anshin Desai states that there was 90 days credit for the goods and therefore there was no reason for the complainant to wait for 3 years. Learned Senior Advocate for the petitioner further stated that the proceedings initiated at Mumbai is also instigated by the present complainant and submitted that there are no allegations to an effect that the petitioner has made a willful misrepresentation and has entered into fake transaction. Learned Senior Advocate for the petitioner states that there is nothing on record to show that there was dishonest fraudulent intention on the part of the petitioner while purchasing the goods. Learned Senior Advocate for the petitioner further submitted that false allegation of money laundering has been made against the petitioner. 4.2 Mr. Anshin Desai, learned Senior Advocate for the petitioner further submitted that it is necessary for the complainant to show that, from the very inception of the contract, there was an intention to cheat to invoke the provisions of Section 406 and 420 of Indian Penal Code. Learned Senior Advocate for the petitioner submitted that whether any essential ingredients of criminal offence is attracted or not is to be judged by this Court, and if any complaint discloses civil transaction then the remedy available to the parties is to approach the Civil Court for redressal of the dispute. 4.3 Mr. Anshin Desai, learned Senior Advocate for the petitioner further submitted that if the purchase of the goods makes an inferior quality of the material and thereafter to that aspect continuous communications are made, the seller thus admitting to the quality of the goods being inferior would only have to appropriate amount in accordance to the communication. Learned Senior Advocate for the petitioner submitted that civil liability cannot be converted into criminal liability which is absolutely abuse of the process of the court. Learned Senior Advocate for the petitioner submitted that the complaint does not disclose any criminal liability on the part of the accused and thus prayed for quashing of the impugned FIR. 4.4 In support of the argument, learned Senior Advocate for the petitioner has relied upon the following decisions: 1. Anil Kohli v. State (NCT OF DELHI) reported in 2002 (61) DRJ 227 (DB) High Court of Delhi. 2. Prashantbhai Maneklal Mehta v. State of Gujarat reported in 2019(2) GLH 813 : 2019(0) AIJEL_HC 240896. 3. 4.4 In support of the argument, learned Senior Advocate for the petitioner has relied upon the following decisions: 1. Anil Kohli v. State (NCT OF DELHI) reported in 2002 (61) DRJ 227 (DB) High Court of Delhi. 2. Prashantbhai Maneklal Mehta v. State of Gujarat reported in 2019(2) GLH 813 : 2019(0) AIJEL_HC 240896. 3. Paramjeet Batra v. State of Uttarakhand and others reported in (2013) 11 SCC 673 . 4. Rashmi Jain v. State of Uttar Pradesh and another reported in (2014) 13 SCC 553. 5. Binod Kumar and others v. State of Bihar and another reported in (2014) 10 SCC 663 . 6. Vinod Natesan v. Sate of Kerala and others reported in (2019) 2 SCC 401 . 7. Vesa Holdings Private Limited and another v. State of Kerala and others reported in (2015) 8 SCC 293 . 5. Ms. Dilbur Contractor, learned advocate appearing for the respondent No.2 relying on the affidavit of the complainant contended that the very contention raised by the petitioner itself is a good ground for rejection of the petition. Learned advocate Ms. Contractor contended that the petitioner has even denied the privity of contract of the goods supplied by the complainant and that itself suggest that from the very inception the petitioner had the intention to cheat the complainant. Learned advocate Ms. Contractor contended that by way of draft amendment some invoices and email sent by the complainant and the alleged payment by the petitioner to the complainant, to show failed commercial dispute. 5.1 Ms. Contractor, learned advocate contended that the petitioner is riding on two horses, which unveils that the petition is moved with the suppression of material facts. Learned advocate further contended that initially the petition prior to draft amendment was with the contention that he was not knowing the complainant and that there was no transaction with him, and later, by way of amendment, the petitioner has taken a stand that the dispute is commercial transaction. 5.2 Ms. Dilbur Contractor, learned advocate for the respondent No.2 has further contended that the petitioner is attempting to escape his criminal liabilities for the offence of misrepresentation and cheating by presenting the offences as mere failed commercial transactions. Learned advocate Ms. 5.2 Ms. Dilbur Contractor, learned advocate for the respondent No.2 has further contended that the petitioner is attempting to escape his criminal liabilities for the offence of misrepresentation and cheating by presenting the offences as mere failed commercial transactions. Learned advocate Ms. Contractor contended that some email, invoices and whatsapp conversation which took place between petitioner and M/s. Oswal Overseas are the documents to be considered by way of defences during the trial, and she stated that with respect to invoices of the complainant, the petitioner has denied the issuance of the same. Learned advocate Ms. Contractor contended that no enterprise like `Saree Sangam’ of the accused would exists and thus are concocted invoices, and the petitioner, by way of draft amendment, has made an assertion that he had paid Rs.9,41,730/-. However, no proof of payment has been submitted. Learned advocate Ms. Contractor suggest that if any payment is to be made beyond Rs.50,000/- then the same has to be paid by way of banking system and the invoices produced by the petitioner shows cash payment of Rs.5.00 lakhs, which, according to learned advocate Ms. Contractor, would be an offence as would be a hawala transaction. 5.3 Ms. Dilbur Contractor, learned advocate for the respondent No.2 contended that the FIR unequivocally spells out the misrepresentation made by the petitioner and the manner in which the complainant was deceived and cheated. She submitted that the present petitioner had misrepresented and deceived by portraying himself as a businessman of great repute, by showing his pictures with eminent politicians, and upon his fraudulent promises to regularly pay by way of cheque within 60 to 90 days of receipt of goods, he induced the complainant to supply the goods to him worth Rs.34,71,344/-. 5.4 Ms. Dilbur Contractor, learned advocate for the respondent No.2 has further contended that it has been specifically mentioned in the FIR that after supplying the goods to him, he did not pay any single penny to the complainant and kept on making false promises of payments and then later evaded any contact with the complainant. She stated that a lame excuse of the petitioner with respect to overpricing of goods is nothing but a defence to be taken in the trial. She stated that a lame excuse of the petitioner with respect to overpricing of goods is nothing but a defence to be taken in the trial. She stated that even if such transactions are to be considered as commercial in nature, there would be nothing to hold the offence of cheating would elude from such a transaction. She stated that the nature of transaction is irrelevant and what matters is the intention of the person who induces the victim on such misrepresentations to supply the goods. Learned advocate for the respondent No.2 further contended that the packing lists and export invoices are ex facie an evidence of supply of goods to the petitioner and the same cannot be denied by him. 5.5 Alleging the petitioner as a habitual offender and having cheated many such businessmen like the complainant, learned advocate Ms. Contractor submitted that the complainant has also got it noted in his FIR, how M/s. Oswal Overseas was also cheated by the petitioner. Learned advocate further stated that some other names are also given by the petitioner himself which are noted in the FIR, who too are the victims at the hands of the petitioner. Learned advocate Ms. Contractor further contended that another FIR is also filed against the petitioner at Mumbai for cheating for One Lakh US dollar. 5.6 Ms. Dilbur Contractor, learned advocate for the respondent No.2 stated that, as per the complainant, the petitioner enters into such import-export transactions by availing of export benefits through his Indian counterparts and asserts of making cash payments which is alleged to be through havala, and therefore, she states that such facts are required to be interrogated so that the entire conspiracy can be unearthed, as such offence of moneylaundering is a serious offence as are against the interest of the state. 5.7 Ms. Dilbur Contractor, learned advocate for the respondent No.2 has further contended that the petitioner has similarly cheated the businessmen not only in Surat but also in Mumbai and Ahmedabad and therefore detail investigation would be necessary. The documentary evidence with the complainant clearly shows that the complainant had directly transacted with the petitioner for supply of Sarees and it was only supplied through M/s. Oswal Overseas as the complainant did not have export licence. The documentary evidence with the complainant clearly shows that the complainant had directly transacted with the petitioner for supply of Sarees and it was only supplied through M/s. Oswal Overseas as the complainant did not have export licence. The books of accounts of the complainant with the certificate of Chartered Accountant fortifies the fact that Rs.39,16,108/- is outstanding in debit side in the name of M/s. Maayu Impex, situated at No.103, 3rd Cross Street, Colombo, Sri Lanka in the books of account and balance sheet of M/s. Ansh Prints. 5.8 In support of the case, learned advocate for the respondent No.2 has relied upon the following decisions: 1. M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and others reported in AIR 2006 SC 2780 . 2. Medchl Chemicals & Pharma P. Ltd. v. Biological E. Ltd., and others decided by Hon’ble Supreme Court of India in Criminal Appeal No. 233 of 2000 (Arising out of SLP(Cri.) No. 1971 of 1991) decided on 25.02.2000. 3. Rajesh Bajaj v. State NCT of Delhi and others reported in 1999 Cri.L.J. 1833. 5.9 Ms. Dilbur Contractor, learned advocate for the respondent No.2 further urged that the factual foundation of the complaint is to be verified, to make out whether there is purely a civil wrong, or purely a criminal offence, or a civil wrong as also a criminal offence. She stated that the commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence and submitted that the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. She stated that the defences will have to be put forth and considered during the trial. 5.10 Ms. The test is whether the allegations in the complaint disclose a criminal offence or not. She stated that the defences will have to be put forth and considered during the trial. 5.10 Ms. Dilbur Contractor, learned advocate for the respondent No.2 submitted that the essential ingredients of offence of cheating and deception of a person can be read when by false and misreading representation, has induced a person to deliver the property, and so she submitted that in this case when the petitioner has himself denied the privity of contract, it would lead to an inference that there was false fraudulent and dishonest inducement to deceive. She stated that the inherent power of this Court under Section 482 of the Code of Criminal Procedure should be exercised very sparingly and with circumspection and the Court has only to see the allegation made in the complaint to find whether prima facie case is made out or not. She stated that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. If the factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. Learned advocate for the respondent No.2 further stated that when the averments made in the complaint prima facie makes out the case for investigation then the interest of justice would be that it should not be proper to quash the FIR. 6. Mr. Pranav Trivedi, learned APP for the respondent- State submitted that, after the complaint, the petitioner was not found by the police team at Chennai (Tamil Nadu), and, according to the police, the petitioner had run away to Sri Lanka. 6. Mr. Pranav Trivedi, learned APP for the respondent- State submitted that, after the complaint, the petitioner was not found by the police team at Chennai (Tamil Nadu), and, according to the police, the petitioner had run away to Sri Lanka. It was found through the complainant that the petitioner-accused whenever visited Surat would have his stay at Austria Hotel at Mahidapura, Surat The police took the copy of passport of petitioner from the said hotel, and found that, on 03.02.2003, the passport was issued from Chennai and from 04.04.2009 to 23.04.2019, the passport came to be issued from Colombo, Sri Lanka, and when it was found that the accused was at Maayu Import and Export Pvt. Ltd., Maayu Impex No. 103, 3rd Cross Street, Colombo-11, an open warrant under Section 70 of the Code of Criminal Procedure was issued against the petitioner and the proceedings was initiated for look out circular and also issued red corner notice. It is stated that the present quashing petition was filed by him, and under the orders of this Court, in the matter on 27.09.2017, 06.04.2019 and 09.06.2019 the statement of the accused was recorded but no arrest has been made of the petitioner-accused. It is further stated that the petitioner had filed Special Criminal Application No. 2587 of 2017 against look out notice issued against him and the Co-ordinate Bench of this Court granted permission to the petitioner to move freely in India by an order dated 08.04.2019. The police says that, except the present petitioner and witness Vikram Oswal, during investigation it was not found of any involvement of goods of some other witnesses. Mr. Pranav Trivedi, learned APP further submitted that because of pendency of this matter the police could not further investigate the case. 7. Having heard learned advocates on record and taking into consideration the facts and circumstances pleaded by the petitioner as well as the facts stated in the impugned FIR, the legal position in connection with the sections invoked towards the alleged offences is required to be taken into consideration while deciding whether this Court is competent to exercise inherent jurisdiction for quashing of impugned FIR under the provisions of Section 482 of the Code of Criminal Procedure. 8. Mr. Anshin Desai, learned Senior Advocate for the petitioner has relied upon Anil Kohli v. State (NCT of Delhi) (supra). 8. Mr. Anshin Desai, learned Senior Advocate for the petitioner has relied upon Anil Kohli v. State (NCT of Delhi) (supra). The matter was before the High Court of Delhi under Sections 406 and 420 of IPC. The matter was that there was business relation between the parties and the transaction continued for seven years; letters were exchanged, admitted liabilities and dues by the complainant to petitioner and vice versa. It was found that there was no allegation of any willful misrepresentation or having entered into fake transaction. It was held that simply because the money have not been paid or are outstanding, it would not make out a case of willful or dishonest inducement or deception. It was observed that it is a purely business transactions of a civil nature and hence held that no offence can be made out under Sections 406 and 420 of IPC, the FIR was ordered to be quashed. 8.1 In Prashantbhai Maneklal Mehta v. State of Gujarat (supra), the allegation was to an effect of obtaining loan from the bank. The accused did not return loan amount to the complainant, and when the complainant called upon the applicants for returning his money, they threatened to kill him. It was held that there is not a whisper in the agreement that the complainant had paid an amount to the applicants or to their firm nor there is any whisper in the complaint that alleged criminal intimidation administered by the petitioners had caused any alarm to complainant and he actually felt very threatened. The FIR was lodged after two days of the incident and the delay in lodging the FIR was considered to substantiate the fact that alleged criminal intimidation did not cause any alarm, and he did feel any immediate threat to his life and the delay in registering FIR is itself found fatal for the case of the complainant as the same dilute his allegations of being criminality intimidated by petitioners and the dispute was found to be civil in nature; on that ground FIR came to be quashed. It appears that the matter was considered more on the provisions of Sections 503 read with Section 506 of IPC, and for the purpose of non-payment of loan amount and the agreement entered into between the petitioner and the complainant, it was observed that the fact of nonpayment of loan amount would have been incorporated in the agreement and there was no clause in the agreement that the amount referred in the FIR remain to be paid by the petitioners. 8.2 In Paramjeet Batra v. State of Uttarakhand and others (supra), the Hon’ble Supreme Court has held that the powers under Section 482 of the Code of Criminal Procedure are 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. It was also observed that whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged, and whether essential ingredients of criminal offence are present or not has to be judged by the High Court and a complaint disclosing civil transactions may also have a criminal texture. The High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence, and in such a situation, if a civil remedy is available and is, in fact, adopted as has happened in the said case, the High Court came to the conclusion of quashing criminal proceedings to prevent abuse of process of the court. The matter was in relation to the profit of hotel business and its ownership and some possession of the shop was handed over; it was held that pending civil suit will take care of all those issues including alleged use of forged and fabricated documents, and in such a situation, it was held that continuation of pending criminal proceedings would be abuse of the process of law. 8.3 In Rashmi Jain v. State of Uttar Pradesh and another (supra), the appellant had contended that the goods supplied by the respondent were of inferior quality and, also were not in conformity with specification provided him. The appellant raised a debit note on 20.10.2008 on the respondent, with the consent of the respondent. 8.3 In Rashmi Jain v. State of Uttar Pradesh and another (supra), the appellant had contended that the goods supplied by the respondent were of inferior quality and, also were not in conformity with specification provided him. The appellant raised a debit note on 20.10.2008 on the respondent, with the consent of the respondent. The respondent No.2 had been working with the appellant for quite some time and had an on-going business relationship with the appellant, and it was found that it was in consideration of the established relationship the respondent No.2 had agreed to accept the goods supplied as deficient and had promised to adjust the amount mentioned in the debit note against future orders. The respondent No.2 sent a legal notice demanding payment of balance amount. The appellant denied the liability. It was held that the averments has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it while considering that the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence, and secondly, she, though, being a resident of Delhi, misbehaved with a number of high and mighty parties with whom she had earlier transacted business at Moradabad. These are allegations which on the face of it, cannot be taken seriously by any reasonable person. It was held that the High Court has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of act, which can only be gone into by the trial court. It was held that the utterances which are attributed to the appellant have been inserted in the complaint with a malicious intent to convert a purely civil dispute into a criminal offence. 8.4 In Binod Kumar and others v. State of Bihar and another (supra), the case was considered towards the charge under Section 406 of IPC on the footing whether criminal complaint for criminal breach of trust to have allegedly retained the bill amount payable is liable to be quashed. The dispute relates to non-payment of bill amount pertaining to contract and the bill amount was retained. The dispute relates to non-payment of bill amount pertaining to contract and the bill amount was retained. It was held that the appellant had no intention to cheat or dishonestly misappropriate the amount and they acted as per direction issued by Vice Chancellor. It was observed that, even if all the allegations in complaint taken at the face value are true, the basic essential ingredients of dishonest misappropriation and cheating are missing which are essential ingredients of Sections 405 and 420 of IPC. It was also held that the prosecution under Sections 406 and 120B of IPC are liable to be quashed. It was further held that, while considering the scope of Section 482 of Cr.P.C. at the stage of quashing of complaint/FIR, the High Court would not embark upon an inquiry as to probability, reliability or genuineness of allegations made therein. 8.5 In Vinod Natesan v. State of Kerala and others (supra), the High Court quashed the complaint against the accused filed under Sections 406 and 420 read with Section 34 of IPC as the ingredients of the offence were not found satisfactory and the averments/allegations made in the complaint did not disclose any criminality on part of the accused. It was observed that the civil dispute was tried to be converted into a criminal dispute and thereby it was held that the High Court has rightly quashed the criminal proceedings in relation to Sections 420 and 406 read with Section 34 of IPC. 8.6 In Vesa Holdings Private Limited and another v. State of Kerala and others (supra), it was observed by the Apex Court that there was absence of ingredients of cheating and culpable intention at the time of making initial promise. There was time bound consultancy contract between appellants and complainant to settle loan with bank and thereafter it was observed that nonpayment of consultancy fees due to settlement of loan beyond time-limit fixed, without help of complainant. Such non-payment of consultancy fees, held does not attract the ingredients of cheating under Section 420 of IPC. The FIR came to be quashed on the ground of malafide criminal proceedings which amount to abuse of process of court. 9. Section 405 provides for criminal breach of trust. “405. Such non-payment of consultancy fees, held does not attract the ingredients of cheating under Section 420 of IPC. The FIR came to be quashed on the ground of malafide criminal proceedings which amount to abuse of process of court. 9. Section 405 provides for criminal breach of trust. “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”. 9.1 The section could be invoked for criminal breach of trust if the following ingredients gets attracted: (i) a person should have been entrusted with property, or entrusted with dominion over property; (ii) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (iii) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 9.2 In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore, Cochin [ AIR 1953 SC 478 ], the Hon’ble Supreme Court has observed in para 18 as under: "…. to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit." [Emphasis supplied] 9.3 In Jaswantrai Manilal Akhaney v. State of Bombay [ AIR 1956 SC 575 ], Apex Court reiterated that the first ingredient to be proved in respect of a criminal breach of trust is 'entrustment'. It, however, clarified : "….. But when S. 405 which defines "criminal breach of trust" speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event." 9.4 Here in this case the present petitioner had initially denied any entrustment of the property. He had contended that there was no privity of contract with the complainant. The petitioner had stated that he has placed orders from M/s. Oswal Overseas in the end of 2013, and for that purpose, he has placed reliance on the payment of customs duties and taxes at the Custom Department of Sri Lanka, and on that basis, he stated that he had made part payment to M/s. Oswal Overseas. Further he has alleged that M/s. Oswal Overseas was sending the goods with overpriced invoices. He had also stated that he was constrained to confront for the same to the said company and also stated in his communication to Indian Embassy that he was not knowing the complainant and that he was transacting with M/s. Oswal Overseas. The petitioner therefore referring to the FIR dated 03.01.2017 has stated that there was no privity of contract with the complainant. The petitioner therefore referring to the FIR dated 03.01.2017 has stated that there was no privity of contract with the complainant. The complainant has relied on packing list No.AP 1 to 98 of the goods which were sent to the accused at Sri Lanka. He has also relied upon the invoice bills produced by M/s. Oswal Overseas before him i.e. container bill and the custom clearance bill of the goods. The copy of packing list produced on record shows that the exporter is M/s. Oswal Overseas and the consignee is Maayu Import and Export Pvt. Ltd., No.103, 3rd Floor, Cross Street, Colombo-11, Sri Lanka, and the said list shows the list of suppliers. Goods are sent under various heads which includes Ansh Prints (saree), Varun Suits (cotton suit), Sanskar Trade (cotton suit), Bindiya Prints (saree), Oswal Overseas (saree), Ram Textiles Prints (cotton suit). The packing list shows the goods by Ansh Prints (sarees) listed as AP 1 to 98. The delivery confirmation for PSM logistics shows the shipper name as M/s. Oswal Overseas with the Container Number and final destination as Colombo, Sri Lanka, with the warehouse name as Punjab Conware. The said packing list shows that the petitioner had purchased the goods from various parties including the complainant under the name of Ansh Prints (saree) and even from M/s. Oswal Overseas. The copy of Certificate of Origin of the Memon Chamber of Commerce shows the exporter name as M/s. Oswal Overseas and the consignee name as M/s. Maayu Import & Export Pvt. Ltd. under the vessel Santa Rufina/033E JNPT/India and port of discharge at Colombo, Sri Lanka. The fabrics and sarees sent to the petitioner are reflected in the said certificate. The copy of invoice bill and the freight fare of the goods is produced on record to support the contention that the goods have been sent to the petitioner. The essential ingredients of the offence of Section 415 of IPC reads as under: “(i) deception of a person either by making a false or misleading representation or by other action or omission. The essential ingredients of the offence of Section 415 of IPC reads as under: “(i) deception of a person either by making a false or misleading representation or by other action or omission. (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or or to intentionally induce that person 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.” It is submitted that by way of false misrepresentation the complainant was induced to deliver the property. 9.5 In the case of S.W. Palantikar and others v. State of Bihar and another reported in (2002) 1 SCC 241 , the Hon’ble Supreme Court while dealing with the stage to consider whether fraudulent or dishonest intention should exist in order to make out the offence of cheating held that, such intention must be shown to exist at the time of making of the inducement, and thereafter held that, mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. The Hon’ble Apex Court in that case found that neither the complainant nor the statement of the witnesses showed that any property were entrusted to any of the accused or that the accused had domain over any property of the complainant which the accused converted to their own use. In the circumstances it was found that the ingredients of Section 405 were not prima facie satisfied. The Hon’ble Apex Court, in the same matter, while referring to the agreement providing for remedy of arbitration has observed that, the agreement in relation to commercial transaction containing an arbitration clause. It was held that, in criminal prosecution for breach of such contract, if such breach even prima facie constituted a criminal offence then the presence of such arbitration clause in the agreement would not operate as a bar. 9.6 In International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) & Others v. Nimra Cerglass Technics (P) Ltd. and another reported in (2016) 1 SCC (Cri.) 269, the Hon’ble Supreme Court in para 13 and 14 has observed as under: “13. 9.6 In International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) & Others v. Nimra Cerglass Technics (P) Ltd. and another reported in (2016) 1 SCC (Cri.) 269, the Hon’ble Supreme Court in para 13 and 14 has observed as under: “13. In the light of the well-settled principles, it is to be seen whether the allegations in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.” 14. 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 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 & Ors. 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 & Ors. vs. State of Bihar & Anr. (2002) 1 SCC 241 , the Hon’ble Supreme 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’s case was referred to and followed in Rashmi Jain vs. State of Uttar Pradesh & Anr. (2014) 13 SCC 553.” 9.7 The observations made hereinabove in the cases referred to hereinabove shows that the distinction is to be kept in mind between mere breach of contract and the offence of cheating; it would depend upon the intention of the accused at time of alleged inducement and 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. 9.8 In Priti Saraf and another v. State of NCT of Delhi and another reported in AIR 2021 SC 1531 , the Hon’ble Apex Court, while referring to the powers of the court to be exercised under Section 482 of Cr.P.C., in context of complaint of cheating and criminal breach of trust while observing the factual matrix that the agreement to sell executed between the complainant and the accused, post-dated cheques towards security for performance of agreement handed over by accused, and immediately on receipt of consideration, the accused had cleared her liability of bank and obtained NOC. The said facts were disclosed to the complainant when cheques handed over to complainant as security were rendered invalid. It was observed that the accused had illegally terminated the agreement to sell and therefore it cannot be said that the complaint does not disclose commission of an offence, and the Hon’ble Supreme Court held that, the ingredients of offences under Sections 406 and 420 of IPC are made out. It was observed that the accused had illegally terminated the agreement to sell and therefore it cannot be said that the complaint does not disclose commission of an offence, and the Hon’ble Supreme Court held that, the ingredients of offences under Sections 406 and 420 of IPC are made out. The Hon’ble Supreme Court further held that the allegations is to be proved on the basis of evidence to be led during course of trial and therefore quashing of the proceedings by the High Court was held to be improper. The Hon’ble Supreme Court in para 32, 33 and 34 has observed as under: “32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings. 33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors.(supra) :- “9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335].” 34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.” 10. Here in the instant case the petitioner had denied the privity of contract with the complainant. Here in the instant case the petitioner had denied the privity of contract with the complainant. The complainant had written a letter to Indian Embassy; there too the petitioner denied of any shipment of goods to him or to his company and had even denied to any goods being sent by complainant to his company. The complainant has given the details showing that how the petitioner has misrepresented and induced him to deliver the goods. The copy of documents of supply of goods are produced on record to substantiate the facts stated in the complaint. The complainant even stated in the affidavit that the others were also cheated by the petitioner. The allegations made in the FIR suggest the ingredients of offences under Sections 406 and 420 of Indian Penal Code. Thus the reasons given hereinabove, this Court does not find any reason to exercise the powers under Section 482 of Cr.P.C. The application thus fails and is rejected. GITA GOPI, J. After pronouncement of the order, learned Senior Advocate Mr. Anshin Desai submitted that the petitioner was protected during the proceedings and the police was directed not to administer any coercive steps. Learned Senior Advocate Mr. Anshin Desai stated that the petitioner wants to challenge present order before the Hon’ble Apex Court, and therefore, stated that implementation of the order be stayed for about eight weeks. Ms. Dilbur Contractor, learned advocate objected to the same and stated that since long the investigation has been kept in abeyance and contended that the police may be directed to carry on with the investigation. Since the matter involves the liberty of the petitioner and when he was protected by this Court during the proceedings, it would be in the interest of justice that the implementation of the order remains stayed, for the petitioner to content his rights before the Apex Court. Thus, the prayer for eight weeks of staying the order is granted.