JUDGMENT : 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding arising out of Complaint Case No. 177 of 2020 including the order dated 14.06.2022 whereby the learned Sub-Divisional Judicial Magistrate, Jamshedpur took cognizance for the offence punishable under Sections 406/420 of the Indian Penal Code against the petitioner as well and also the quashing the order dated 21.02.2022 by which the learned Sub-Divisional Judicial Magistrate, Jamshedpur upon an application filed under Section 319 of the Cr.P.C. added the name of inter-alia the petitioner in the light of the statements of the inquiry witnesses and complainant. 3. The brief facts of the case is that the petitioner is the Director of Blue Dart Express Limited. M/s. Blue Dart Express Limited appointed the proprietorship firm of the complainant namely M/s. Vikash Enterprises as the pick-up and delivery agent for the said Courier Company after entering into an agreement in this respect on 30.06.2017. As per the claim of the complainant, M/s. Blue Dart Express Limited was to pay Rs.20,40,066/- to the said proprietorship firm of the complainant but M/s. Blue Dart Express Limited agreed to pay only Rs.13,80,772/- and ultimately paid Rs.2,00,000/- to the complainant. There is also allegation that M/s. Blue Dart Express Limited by way of cheating has misused the bank guarantee furnished by the complainant and did not returned the same to the complainant. 4. It is submitted by the learned counsel for the petitioner relying upon the Judgment of Hon’ble Supreme Court of India, in the case of M.N.G. Bharateesh Reddy Vs. Ramesh Ranganathan & Another, reported in (2022) SCC Online SC 1061, para 21 to 24 of which reads as under:- “21. The offence of criminal breach of trust contains two ingredients: (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it. 22. In Anwar Chand Sab Nanadikar v. State of Karnataka6 a two-judge bench restated the essential ingredients of the offence of criminal breach of trust in the following words: “7. 22. In Anwar Chand Sab Nanadikar v. State of Karnataka6 a two-judge bench restated the essential ingredients of the offence of criminal breach of trust in the following words: “7. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.” 23. In Vijay Kumar Ghai v. State of West Bengal, another two-judge bench held that entrustment of property is pivotal to constitute an offence under section 405 of the IPC. The relevant extract reads as follows: “28. “Entrustment” of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, “in any manner entrusted with property”. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of “trust”. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.” 24. None of the ingredients of the offence of criminal breach of trust have been demonstrated on the allegations in the complaint as they stand. The first respondent alleges that the Appellant caused breach of trust by issuing grossly irregular bills, which adversely affected his professional fees. However, an alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment. No element of entrustment has been prima facie established based on the facts and circumstances of the present matter. Therefore, the ingredients of the offence of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands.” That the allegation made against the petitioner even if assumed to be true, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. 5. Therefore, the ingredients of the offence of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands.” That the allegation made against the petitioner even if assumed to be true, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. 5. The learned counsel for the petitioner further relied upon the Judgment of Hon’ble Supreme Court of India in the case of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696 , para -10 of which reads as under: - “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [ (2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” And submits that mere non-refunding the amount of money would not constitute the offence of cheating. 6. The learned counsel for the petitioner further relied upon the Judgment of Hon’ble Supreme Court of India in the case of Hridaya Ranjan Prasad Verma Vs. State of Bihar, reported in (2000) 4 SCC 168 , para -15 of which reads as under: - “15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 7. The learned counsel for the petitioner next relied upon the Judgment of Hon’ble Supreme Court of India, in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr., reported in (2007) 7 SCC 373 , para -8 of which reads as under:- “8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus: “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 wilfully suffers any other person so to do, commits ‘criminal breach of trust’.” Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” 8. The learned counsel for the petitioner also in this respect relied upon the Judgment of Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. Vs. State of West Bengal & Ors., reported in (2022) 7 SCC 124 . 9. The learned counsel for the petitioner also in this respect relied upon the Judgment of Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. Vs. State of West Bengal & Ors., reported in (2022) 7 SCC 124 . 9. The learned counsel for the petitioner further submits that the petitioner was not involved in the transaction with respect to the opposite party no.2 nor any such averment has been made in complaint or in the statement under solemn affirmation of the witness. It is then submitted that the opposite party no.2 failed to deposit the amount of Rs.18,63,920 towards Cash on Delivery (COD) between May, 2018 and November, 2018 out of the total collection from the consignees and on reconciliation, the opposite party no.2 had agreed to deposit the said amount and also acknowledged the amount by signing the reconciliation sheet. It is further submitted that clause 15 of the agreement dated 30.06.2017 entered into between the parties provides for arbitration clause but without invoking the same, the petitioner has abused the process of the court by giving a cloak of criminal offence to a dispute, which could at best have been a civil dispute. 10. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Sunil Bharti Mittal Vs. C.B.I., reported in (2015) 4 SCC 609 , para 42 to 44 of which reads as under: - “(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person. 42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. 44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of “alter ego”, was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of “alter ego”, was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.” It is submitted by the learned counsel for the petitioner that the Hon’ble Supreme Court of India has clearly held therein that when the company is the accused, its directors can be roped only if: (a) there is sufficient incriminating evidence against them coupled with criminal intent: or (b) the statutory regime attracts the doctrine of vicarious liability and in this case, the only offence alleged under the provisions of the Indian Penal Code which do not envisages any vicarious liability of the accused person and there is no specific allegation against the petitioner of having done any criminal act alleged in the complaint, hence on this score also, the continuation of the criminal proceeding will amount to abuse of process of law. 11. The learned counsel for the petitioner further relied upon the Judgment of Hon’ble Supreme Court of India, in the case of Hardeep Singh Vs. State of Punjab and Others, reported in (2014) 3 SCC 92 para -55 and 57 of which reads as under:- “55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. 57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge-sheet or any other person who might be an accomplice.” And submits that the power under Section 319 can be exercised only on the basis of the evidence adduced before the court during a trial and by 21.02.2022, the trial of the case had not commenced, so the exercise of the power under Section 319 Cr.P.C. even before taking cognizance and commencement of trial is not in accordance with law. Hence the same be set aside as well. It is submitted that as the offences punishable under Section 406/420 of the Indian Penal Code is not made out, hence the entire criminal proceeding arising out of Complaint Case No. 177 of 2020 including the order dated 14.06.2022 whereby the learned Sub-Divisional Judicial Magistrate, Jamshedpur took cognizance for the offences punishable under Sections 406/420 of the Indian Penal Code against the petitioner as well and also the order dated 21.02.2022 by which the learned Sub-Divisional Judicial Magistrate, Jamshedpur upon an application filed under Section 319 of the Cr.P.C. added the name of inter-alia the petitioner in the light of the statements of the inquiry witnesses and complainant be quashed and set aside. 12. The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing and setting aside the entire criminal proceeding arising out of Complaint Case No. 177 of 2020 including the order dated 14.06.2022 whereby the learned Sub-Divisional Judicial Magistrate, Jamshedpur took cognizance for the offence punishable under Sections 406/420 of the Indian Penal Code against the petitioner as well and also for quashing the order dated 21.02.2022 by which the learned Sub-Divisional Judicial Magistrate, Jamshedpur upon an application filed under Section 319 of the Cr.P.C. added the name of inter-alia the petitioner in the light of the statements of the inquiry witnesses and complainant. It is next submitted that there is specific allegation against the petitioner of cheating the complainant and his proprietorship firm of huge amount of money and dishonestly misappropriating the same. It is further submitted by the learned counsel for the opposite party no.2 that though nowhere in the complaint or in the statement on solemn affirmation of the complainant or for that matter, the inquiry witnesses have stated anything about the reconciliation report being a fraudulent one but subsequently, the complainant came to know that the said reconciliation report is a fraudulent one. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 13. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph no. 6 of which reads as under :- 6. Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) That every breach of contract would not give rise to an offence of cheating and only in those cases the breach of contract would amount to cheating; where there was any deception played at the very inception. If the intention to cheat has developed later on, the same will not amount to cheating. 14. If the intention to cheat has developed later on, the same will not amount to cheating. 14. Now coming to the facts of the case, there is absolutely no allegation against the petitioner of having played any deception since the beginning of the transaction between the parties nor there is any allegation against the petitioner of having any criminal intent or personally involved in the transactions made by the said company M/s. Blue Dart Express Limited with the proprietorship firm of the complainant-opposite party no.2. 15. So far as the order dated 21.02.2022 is concerned, certainly in view of the principle of law settled in the case of Hardeep Singh Vs. State of Punjab and Others (supra), the learned Sub Divisional Judicial Magistrate committed a jurisdictional error by exercising the power vested under Section 319 Cr.P.C. before commencement of the trial. Hence, the said order dated 21.02.2022 is also not sustainable in law. 16. Because of the discussions made above, this Court has no hesitation in holding that continuation of the criminal proceeding arising out of Complaint Case No. 177 of 2020 including the order dated 14.06.2022 whereby the learned Sub-Divisional Judicial Magistrate, Jamshedpur took cognizance for the offences punishable under Sections 406/420 of the Indian Penal Code against the petitioner as well and also the order dated 21.02.2022 by which the learned Sub-Divisional Judicial Magistrate, Jamshedpur upon an application filed under Section 319 of the Cr.P.C. added the name of inter-alia the petitioner in the light of the statements of the inquiry witnesses and complainant, will amount to abuse of process of law. 17. Accordingly, the entire criminal proceeding arising out of Complaint Case No. 177 of 2020 including the order dated 14.06.2022 whereby the learned Sub-Divisional Judicial Magistrate, Jamshedpur took cognizance for the offence punishable under Sections 406/420 of the Indian Penal Code against the petitioner as well and also the order dated 21.02.2022 by which the learned Sub-Divisional Judicial Magistrate, Jamshedpur upon an application filed under Section 319 of the Cr.P.C. added the name of inter-alia the petitioner in the light of the statements of the inquiry witnesses and complainant, is quashed and set aside qua the petitioner only. 18. In the result, this criminal miscellaneous petition is allowed.