JUDGMENT : Heard Mr. A.K. Kashyap, learned senior counsel for the petitioners, Mrs. Shweta Singh, learned A.P.P. for the State and Mr. Ram Krishna Singh, learned counsel appearing for the O.P. No. 2. 2. This criminal miscellaneous petition has been filed for quashing of the entire criminal prosecution including the FIR, being Adityapur P.S. Case No. 207 of 2018 and subsequently by order dated 16.08.2021, passed in I.A. No. 3239 of 2021, cognizance order dated 20.05.2020 has been allowed to be challenged by way of allowing the amendment petition. Accordingly the order taking cognizance dated 20.05.2020 is also under challenge, in connection with Adityapur P.S. Case No. 207 of 2018 corresponding to G.R. No. 322 of 2020, pending in the court of learned Chief Judicial Magistrate, Seraikella-Kharsawan. 3. The O.P. No. 2 has filed the complaint before the police, alleging therein that she is working in a consultancy company. In the order of hierarchy of children of Sri Brahmdeo Sharma, she is the third daughter and the petitioner No. 1 is eldest daughter and having one brother namely Diwakar Sharma. It is alleged that the petitioners stay in America and in the year 2014 as per the proposal given by the petitioners, the informant / O.P. No. 2 has deposited Rs. 15 lacs in the account of the petitioner No. 1. Later on, on 27.05.2018, when she returned from America to see her mother then she came to know that the Flat, in which, her father and mother were staying was not in the name of her parents rather in the name of petitioner No. 1 and the petitioner No. 1 in connivance with the Builder had taken ownership in her favour and became the owner of the said Flat in the year 2014 itself. It is further alleged that at the time of purchasing the said flat, the informant was told by the petitioners that the said flat will be purchased in the name of both the sisters i.e. the informant and the petitioner No. 1, in which, their parents will stay till their lifetime. When the informant contacted the petitioner No. 1 and asked about the ownership of the flat, then the petitioner No. 1 abused her and thrown her and her parents from the flat and threatened her to vacate the said flat. When the informant contacted the petitioner No. 1 and asked about the ownership of the flat, then the petitioner No. 1 abused her and thrown her and her parents from the flat and threatened her to vacate the said flat. Then the informant said that as per the agreement, both i.e. the informant / O.P. no. 2 and the petitioner No. 1 have spent money and their father has given Rs. 12 lacs for purchasing furniture. Their father has also given Rs. 16 lacs after selling a house to the petitioner. It is also alleged that when the informant started claiming her ownership in the said flat then on 31.5.2018 the petitioner No. 1 came from America and started abusing and assaulted her and on 19.6.2018 the petitioner No. 1 again abused her and her parents and started giving threatening. She was pushed by the petitioner No. 1 due to which she fell down on the ground and sustained injury on her shoulder for which she was treated at Steel City Nursing Home. It is further alleged that thereafter the petitioners continuously given threatening. The informant has lost their job due to fracture in hand. The informant has further alleged that the petitioners having bad intention of grabbing the said flat has cheated her, for which, the present FIR has been lodged against the petitioners. 4. Mr. A.K. Kashyap, learned senior counsel appearing for the petitioners has submitted that the petitioners are the husband and wife and allegation with respect to abusing and assaulting the O.P. No. 2 and her parents are absolutely false. He submitted that petitioner No. 1 and the informant-O.P. No. 2 are own sisters and the petitioners have not cheated in any manner whatsoever. He submitted that the O.P. No. 2 for the purpose of grabbing the flat being Flat No. 501, Haven Palace, situated at Adityapur knowing fully well that the said flat is exclusively purchased by the petitioner No. 1 and she has purchased the said flat in the year 2011 in the name of her husband i.e. petitioner No. 2, which had been booked for their residence in Jamshedpur on payment of consideration amount of Rs. 58 lacs to the Builder namely Heaven India Realtech Ltd. He further submitted that at the time of booking of the said flat, neither the O.P. No. 2 nor the parents have given a single penny to the petitioners. He submitted that the petitioners have allowed the parents to temporarily reside in the said flat till any alternative accommodation is arranged. 5. Learned senior counsel appearing for the petitioners has submitted that the O.P. No. 2 came to India after getting divorce from her husband and she is residing in the said flat of the petitioners, as she was having no residence to stay in Jamshedpur and now she started claiming to be the contributor of the consideration amount paid to the Builder. He submitted that not a single chit of paper available to suggest that the consideration amount has ever been paid by the O.P. No. 2. It has been alleged that the O.P. No. 2 came to Jamshedpur only on 27.05.2018 and started residing with her parents in the said flat. It has been further alleged that the above mentioned flat was booked by the petitioners six years ago before her arrival at Jamshedpur and in view of that, the allegation of contribution made by the O.P. No. 2 is false. It is also alleged against the petitioner No. 1 that she pushed the O.P. No. 2 on the floor, causing fracture in her hand is absolutely false, rather the fact is that she slipped on the floor of the house, due to which, she sustained injury, for which she was treated in Steel City Nursing Home where the petitioner No. 1 and her brother regularly looking after her. Learned counsel has submitted that the petitioners have given the reply to Section 41(A) of the Cr.P.C. notice. 6. By way of referring to the FIR, learned senior counsel appearing for the petitioners submitted that if the allegations are found to be true then only a civil case is made out, wherein colour of criminality has been given by way of filing the FIR. He relied in the case of Anand Kumar Mohatta & Ors. Versus State (NCT of Delhi), Department of Home & Anr., reported in (2019) 11 SCC 706 , wherein the Hon’ble Supreme Court in paras-6, 14 and 15 held as follows:- “6. He relied in the case of Anand Kumar Mohatta & Ors. Versus State (NCT of Delhi), Department of Home & Anr., reported in (2019) 11 SCC 706 , wherein the Hon’ble Supreme Court in paras-6, 14 and 15 held as follows:- “6. The FIR with which we are concerned was lodged on 20-8-2014 against the appellants for the offence under Section 406 IPC on a fresh complaint filed by Respondent 2. Following which, the appellants approached the High Court under Section 482 CrPC seeking to quash FIR dated 20-8-2014. According to the appellants, the FIR was completely untenable in the facts and circumstances of the case. Mainly, the amount of rupees one crore was rightfully retained by them and there was no question of such retention constituting a criminal breach of trust. Moreover, assuming that Respondent 2 had a grievance only about the retention of money, the redressal ought to have been sought before a civil court. Therefore, the lodging of the FIR was mala fide in nature and done with the intention to pressurise the appellants to agree to certain new terms and conditions of the agreement to which the appellants did not want to proceed with. 14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat. In Joseph Salvaraj A., this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed: (SCC p. 63, para 16) “16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant’s FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant’s FIR, charge-sheet, documents, etc. or not.” 15. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant’s FIR, charge-sheet, documents, etc. or not.” 15. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 CrPC and that this Court is hearing an appeal from an order under Section 482 CrPC. Section 482 CrPC reads as follows : “482. Saving of inherent powers of the High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 7. Learned senior counsel further submitted that earlier a complaint case was filed by the O.P. No. 2, which was subsequently withdrawn by her and thereafter this FIR has been lodged. He further submitted that the High Court can quash the proceeding, if the abuse of the process of Court is there and the criminal proceeding has been initiated to avoid civil liability and to convert purely civil dispute into criminal case. He relied in the case of Chandran Ratnaswami Versus K.C. Palanisamy & Ors., reported in (2013) 6 SCC 740 , wherein the Hon’ble Supreme Court in para-52 held as follows:- “52. Instead of complying with the order of the Company Law Board and the directions and observations made by the Madras High Court in the aforementioned company appeals, Respondent 1 started filing several criminal complaints against the appellant. The first complaint was filed by the respondent before the Economic Offences Wing, Chennai, alleging that ORE invested only Rs. 75 crores and for not bringing Rs. 300 crores in joint venture company. The petition filed in the High Court seeking direction to EOW to take action on the complaint was, however, withdrawn. Respondent 1 then filed a second complaint before the Judicial Magistrate, Perundurai which was dismissed after examining Respondent 1 and his two witnesses. The respondent then filed another complaint before the Judicial Magistrate, Kangayam without disclosing the dismissal of the earlier complaint filed before the Judicial Magistrate, Perundurai. The said complaint finally came to be registered as FIR No. 7 of 2007. The respondent then filed another complaint before the Judicial Magistrate, Kangayam without disclosing the dismissal of the earlier complaint filed before the Judicial Magistrate, Perundurai. The said complaint finally came to be registered as FIR No. 7 of 2007. The appellant moved the High Court for quashing the said FIR. In the said petition, the High Court, after noticing the similar complaint filed earlier by Respondent 1 in the Court of the Judicial Magistrate, Perundurai, finally observed that the second criminal proceeding initiated by Respondent 1 has no merit. The court further passed a stringent remark against the conduct of Respondent 1 for filing cases on the same issue.” 8. By way of placing reliance on the aforesaid judgments, learned counsel has submitted that entire criminal proceeding is fit to be quashed. 9. On the point of case of civil nature is concerned, he relied in the case of Rashmi Jain Versus State of Uttar Pradesh & Anr., reported in (2014) 13 SCC 553, wherein the Hon’ble Supreme Court in para-6 held as follows:- “6. To take the complaint out of the realm of a purely civil dispute, it is maliciously alleged in the complaint that when Respondent 2 approached the appellant for payment, the appellant stated as follows: “On 22-3-2009, the applicant met the accused in the market of Bazarganj Saraitareen and asked for his balance amount, but the accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don’t know me. I have not paid to the high and mighty people, who are you. I had to usurp your money and I had done so. Thereafter she went in a car.” In our opinion, the aforesaid averment 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; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. The allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. In our opinion, these are allegations which on the face of it, cannot be taken seriously by any reasonable person. The High Court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial court.” 10. On these grounds, learned senior counsel appearing for the petitioners has submitted that the entire criminal proceeding, including the order taking cognizance are bad in law and this Court may interfere in the matter under Section 482 Cr.P.C. 11. Per contra, Mr. Ram Krishna Singh, learned counsel appearing for the O.P. No. 2 has submitted that the O.P. No. 2 and petitioner No. 1 are own sisters and the O.P. No. 2 has earlier filed Complaint Case No. 1946 of 2018 against the petitioners, which was subsequently withdrawn by the O.P. No. 2 on 17.07.2018. He submitted that the reason of withdrawal of the complaint was neither known to the petitioners nor to their parvikar, who sworn the affidavit to that effect. He further submitted that the O.P. No. 2 has become victim of unethical conduct of her counsel and his associates, who filed complaint case No. 1946 of 2018 in the Court of learned Chief Judicial Magistrate, Jamshedpur. He further submitted that the said advocate was already working for the husband of the O.P. No. 2 in Succession Case No. 09 of 2018 as well as criminal case pending in the Jamshedpur Court. He further submitted that the said advocate obtained the signature of O.P. No. 2 on blank sheets of papers and a blank vakalatnama in good faith and trust. He further submitted that the said complaint was filed on behalf of O.P. No. 2 on the basis of forged signature of the O.P. No. 2. He further submitted that the O.P. No. 2 is residing with her husband Dr. Farhad A. Balsara i.e. the permanent address of the O.P. No. 2. He further submitted that the said complaint was filed on behalf of O.P. No. 2 on the basis of forged signature of the O.P. No. 2. He further submitted that the O.P. No. 2 is residing with her husband Dr. Farhad A. Balsara i.e. the permanent address of the O.P. No. 2. He submitted that the O.P. No. 2 has not worked in any consultancy company, rather she has worked in ASAP Solution as Senior Project Manager and had to leave her job because of grievous injury, followed by two surgeries. He further submitted that the O.P. No. 2 is an American Citizen and she has been working for USA based consulting companies since 2008. He further submitted that the O.P. No. 2 has transferred Rs. 15 lakhs from the joint account of her mother Mrs. Rama Mani Sharma on 31.07.2014 and the purpose of sending the money was that the property will be purchased in the name of the mother of the O.P. No. 2 and the O.P. No. 2 herself with petitioner No. 1 Shalimi Ghanshyam Mishra to enable her mother to have lift facility in the new flat, which was not present in the earlier flat, as she was having issues of chronic backache and difficulty in climbing stairs. Learned counsel further submitted that the petitioners have threatened the O.P. No. 2 to vacate the house and they abused the O.P. No. 2. 12. On the aforementioned grounds, learned counsel appearing for the O.P. No. 2 has submitted that this is not the case to exercise the power under Section 482 Cr.P.C. He has submitted that from time to time the Hon’ble Supreme Court has framed the law that if the prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash the criminal proceeding. He relied in the case of Rajeev Kourav Versus Baisahab & Ors. in Criminal Appeal No. 232 of 2020 [arising out of S.L.P. (Crl.) No. 1174 of 2017], wherein the Hon’ble Supreme Court in para-6 thereof held as follows:- “6. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.” 13. Placing reliance on the aforesaid judgment, learned counsel appearing for the O.P. No. 2 has submitted that this case is fit to be rejected. 14. In view of the above submissions of learned counsel appearing for the parties, the Court has gone through the materials available on record. Looking into the contents of the FIR, it is crystal clear that for the flat in question, the FIR has been lodged and it is an admitted fact that the petitioner No. 1 and O.P. No. 2 are own sisters and the allegations are made about the transaction of certain money by the O.P. No. 2 for the purchase of flat in question. 15. In the counter affidavit, filed by the O.P. No. 2, the legal notice issued against the petitioners by the O.P. No. 2 has been annexed, wherein it has been stated that the petitioners have come into the contact of some builder and negotiated the terms of owning the flat without taking the consent of O.P. No. 2 and her mother. In the legal notice, it has been demanded that the petitioners have to pay a sum of Rs.40,00,000/- to O.P. No. 2 for residing in the flat in question. In the legal notice, it has been demanded that the petitioners have to pay a sum of Rs.40,00,000/- to O.P. No. 2 for residing in the flat in question. The agreement of sale of the flat in question is annexed as Annexure-D to the counter affidavit filed on behalf of the O.P. No. 2 and from perusal of the said agreement, it transpires that the agreement is between the builder and these petitioners. The allotment letter, which has been brought on record by way of said affidavit of O.P. No. 2 and the allotment is also in favour of the petitioners. 16. The cognizance for the offences under Sections 341, 323, 325, 406, 420, 504, 506 and 34 of the Indian Penal Code has been taken against the petitioners. The aforesaid FIR has been lodged after withdrawal of the earlier complaint case, filed by the O.P. No. 2 and the allegation is of transferring certain money in favour of the petitioners by the O.P. No. 2 and the allegation is retaining the said amount, no criminal breach of trust is made out. The grievance with regard to retention of the money and purchase of flat, which is said to be adjudicated before the civil court by the O.P. No. 2, the O.P. No. 2 and her mother is joint account holder of Bank account. How prima facie case under Section 406 I.P.C. is made out is not clear on going through the entire record. The non-payment of certain amount was also subject matter of trial, as laid down by the Hon’ble Supreme Court in the case of Rashmi Jain (Supra), which has been relied by the learned counsel appearing for the petitioners. 17. It is well settled law that the O.P. No. 2 is required to show the accused had fraudulent or dishonest intention at the time of making promise of representation. Even in the case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absence, no offence under Section 420 IPC can be said to have been made out. Reference may be made to the case of V.Y. Jose & Anr. Versus State of Gujarat & Anr., reported in (2009) 3 SCC 78 , wherein the Hon’ble Supreme in para-14 held as follows:- “14. Reference may be made to the case of V.Y. Jose & Anr. Versus State of Gujarat & Anr., reported in (2009) 3 SCC 78 , wherein the Hon’ble Supreme in para-14 held as follows:- “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.” 18. Merely on failure of a person to keep up promise subsequently, it cannot be presumed that the intention was from the very beginning and the substance of the complaint is required to be looked into as to whether the criminality is made out or not. Mere use of the expression ‘cheating’ in the complaint is of no consequence. Reference may be made to the case of Anil Mahajan Versus Bhor Industries Ltd. & Anr., reported in (2005) 10 SCC 228 , wherein the Hon’ble Supreme Court in paras-6 and 8 held as follows:- “6. The order of the Magistrate was challenged before the Court of Session. The learned Additional Sessions Judge, Pune, by order dated 19-10-2001 has set aside the order of the Magistrate issuing process. It has been stated by the learned Additional Sessions Judge in the order that: “In this case there is no allegation that the accused made unlawful representation. Even, according to the complaint, they entered into memorandum of understanding. Grievance seems to be that the accused failed to discharge obligations under the MOU. It has been stated by the learned Additional Sessions Judge in the order that: “In this case there is no allegation that the accused made unlawful representation. Even, according to the complaint, they entered into memorandum of understanding. Grievance seems to be that the accused failed to discharge obligations under the MOU. In the complaint, there was no allegation that there was fraud or dishonest inducement on the part of the applicant and thereby the opponent parted with the property.” Reliance has been placed, in that order, on various decisions of this Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. 8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs. 3,05,39,086 out of the total amount of Rs. 3,38,62,860 was paid leaving balance of Rs. 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant’s own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.” 19. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.” 19. Thus, in view of the entire scenario and the documents, available on record, suggests that the case is civil in nature, wherein criminal motion has been put into against the petitioners. It is settled law that the High Court in exercising the power under Section 482 Cr.P.C. is required to proceed with circumspection and caution and for quashing the proceeding is not required to make a roaming enquiry and come to the conclusion that no case is made out. At the same time if the prima facie case is not made out, it is trite to the High Court to protect the petitioners. In the case in hand the entire allegation are civil in nature and in view of the above facts and looking into the cognizance order dated 20.05.2020, it transpires that the learned Court has taken cognizance merely on the ground that he has looked into the chargesheet and the statement of the informant and the case diary, however, in the said order what are the prima facie materials against the petitioners for proceeding in a criminal case has not been discussed in the said cognizance order. It is well settled that the detailed order is not required to be passed for taking the cognizance, but what are the prima facie materials are there must be reflected in the said order, which is lacking in the case in hand. 20. Accordingly, the order taking cognizance dated 20.05.2020, in connection with Adityapur P.S. Case No. 207 of 2018 corresponding to G.R. No. 322 of 2020, pending in the court of learned Chief Judicial Magistrate, Seraikella-Kharsawan, is hereby, set aside. The matter is remitted back to the concerned court to pass a fresh order in the light of the observations made hereinabove and looking into the materials, available on record. 21. This petition is disposed of on the above extent. 22. Interim order, granted earlier, stands vacated.