JUDGMENT : Heard learned counsel for the petitioner, learned counsel appearing on behalf of the respondent State as well as the learned counsel appearing on behalf of the respondent no.2. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 06.03.2024 in connection with C.P.Case No.1499 of 2023 pending in the court of learned Civil Judge (Sr.Division) cum-Judicial Magistrate, Bokaro. 3. The complaint case has been filed alleging therein that accused person no.1 issued two different work orders to the complainant being purchase order no.3300004379 dated 24.9.2018 for Rs.8,82,640/- and purchase order no.3300004438 dated 13.10.2018 for Rs.44,84,000/- for doing capital repairs of RHF-1 (Regenerative) and MBF-1 Ranking Dismantling and Reliving in the factory premises of the petitioner at Ginigera Koppal, Karnataka. The Complainant states that he had finished both the works efficiently within stipulated time period. And submitted the bills against the work it had done with regard to two purchase orders having a total bill of Rs.55,66,640/-. It is admitted by the complainant that a sum of Rs.28,83,478//- has been paid to him and it has been claimed that a sum of Rs.24,83,162/- remained due against the aforesaid bills. It is stated by the complainant that the complainant requested the accused petitioner to make payment of the due amount by sending request via mobile phone and e.mail. However, the accused petitioner did not make the payment. It is alleged that when the requests of the complainant was not acted upon he gave a legal notice to the accused person through his lawyer M.K. Srivastava through speed post on 25.3.2023 which was delivered to the accused petitioner on 30.3.2023. Despite issuance of legal notice no payment was made by the accused petitioner. However, the petitioner gave reply to the legal notice on 21.4.2023 through lawyer R.B.Panaghanti refusing the liability of making the payment of dues on several pretexts. Having no other alternative the complainant has filed the present C.P. Case against the petitioner. It is also stated that purported copies of the following papers were enclosed with the complainant: Tax invoice raised by Global Construction upon Hospet Steels Ltd in relation to work orders no.1200002143, 1200002165, 1200001908, 1200002303, 1200002432. Legal Notice dated 25.3.2023 giving to Kalyani Steels Limited, with postage receipts and reports in relation to reply dated 21.4.2023 to legal notice. 4. Mr. Legal Notice dated 25.3.2023 giving to Kalyani Steels Limited, with postage receipts and reports in relation to reply dated 21.4.2023 to legal notice. 4. Mr. Pandey Neeraj Rai, the learned counsel appearing on behalf of the petitioner submits that the complainant has examined two enquiry witnesses and he was also made statement in the solemn affirmation and thereafter the learned court has been pleased to take cognizance under sections 406 and section 420 of the Indian Penal Code and summons have been directed to be issued against the Managing Director who happened to be the petitioner. He submits that the dispute is with regard to non-payment of Rs.24,83,162/-. He submits that the petitioner happened to be the Managing Director of M/s Kalyani Steel Limited and the respondent no.2 was appointed by the said company to discharge the refractory work of the said company and the respondent no.2 happened to be proprietor of the said company. By way of drawing attention of the Court to the solemn affirmation, he submits that in the solemn affirmation itself, respondent no.2 has admitted that a sum of Rs.53,66,640/- was due, however, only Rs.28,83,478/- has been paid and for recovery of the rest of the amount for a sum of Rs.24,83,162/- the case has been lodged. He submits that on the Court’s question also the respondent no.2 has admitted that for recovery of the said amount the case has been lodged. He submits that if such a situation is there, the case, if any made out, that is of civil in nature. He submits that for recovery of the amount the respondent no.2 has not taken any steps and straightway he has filed the complaint case, and to buttress his such argument, he relied in the case of Anand Kumar Mohatta and Others v. State (Government of N.C.T. of Delhi) Department of Home and Others reported in (2019) 11 SCC 706 , wherein he has relied on paragraph nos.27 and 31 of the said judgment, wherein it has been held as under: “27. We find it strange that the complainant has not made any attempt for the recovery of the money of rupees one crore except by filing this criminal complaint. This action appears to be mala fide and unsustainable. 31. We find that the prosecution is mala fide, untenable and solely intended to harass the appellants. We find it strange that the complainant has not made any attempt for the recovery of the money of rupees one crore except by filing this criminal complaint. This action appears to be mala fide and unsustainable. 31. We find that the prosecution is mala fide, untenable and solely intended to harass the appellants. We are fortified in view of the respondent not having made any attempt to recover the deposit of rupees one crore through a civil action.” 5. Relying on the above judgment, he submits that in the present case also the respondent no.2 has not taken any steps for recovery of the amount and straightway he has filed the complaint case and in view of that the case is covered. He further relied in the case of Vijay Kumar Ghai and Others v. The State of West Bengal and Others reported in (2022) 7 SCC 124 and relied on paragraph nos.38,39 and 48 of the said judgment which are quoted below: “38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786], the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants. 39. In Vesa Holdings (P) Ltd. v. State of Kerala [Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498], this Court made the following observation : (SCC pp. 297-98, para 13) “13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show 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 420IPC. In our view, the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed [Maniprasad v. State of Kerala, 2011 SCC OnLine Ker 4251] an error in refusing to exercise the power under Section 482 CrPC to quash the proceedings.” 48. In view of the above facts and circumstances, the impugned order dated 1-10-2019 [Priknit Retails Ltd. v. State of W.B., 2019 SCC OnLine Cal 7096] passed by the High Court is set aside. The impugned FIR No. 168 dated 28-3-2013 and proceedings in the file of CMM, Kolkata, West Bengal in pursuance of charge-sheet dated 14-2-2017 against the appellants for the offences under Sections 406, 420, 120-BIPC stand quashed.” 6. Learned counsel appearing on behalf of the petitioner further submits that the cognizance is not there against M/s Kalyani Steels Limited and the cognizance has only be taken against the Managing Director. 7. Relying on the above judgment, he submits that the case of the petitioner is fully covered and in view of that the entire criminal proceeding may kindly be quashed. 8. Learned counsel appearing on behalf of the respondent State submits that on the complaint case the learned counsel has been pleased to take cognizance, however, she submits that prima-facie it appears that for recovery of the amount the respondent no.2 has filed the complaint case. 9. 8. Learned counsel appearing on behalf of the respondent State submits that on the complaint case the learned counsel has been pleased to take cognizance, however, she submits that prima-facie it appears that for recovery of the amount the respondent no.2 has filed the complaint case. 9. Learned counsel appearing on behalf of the respondent no.2 has opposed the prayer and submits that the complaint was filed and the learned court concerned after going through the solemn affirmation as well as the enquiry witnesses and thereafter has taken cognizance and as such, this Court may not interfere at this stage under Article 226 of the Constitution of India and he submits that what has been argued by the learned counsel appearing on behalf of the petitioner that can be the subject matter of trial. He further draws the attention of the Court to the legal notice as contained at Page No.56 of the writ petition and submits that once legal notice is there and in view of that the intention to cheat from the very beginning is made out as per its contents and in view of that, cheating from the very beginning is there and as such, the entire criminal proceeding may not be quashed. 10. In view of the above submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record as well as the contents of the complaint petition and the solemn affirmation of the respondent no.2 as well. In the complaint petition it is stated that the complainant has submitted bills amounting to Rs.53,63,640/- and out of that the payment was made of Rs.28,83,478/-, however, rest of the amount to the tune of Rs.24,83,162/- was not paid and this fact was further admitted in the solemn affirmation and admittedly the case is arising out of an agreement between the parties and respondent no.2 was engaged for supply of refractory works. It is further an admitted position that the respondent no.2 has not filed any case for recovery of the said amount and straightway has filed the complaint case and if such a situation is there, this has been deprecated in several judgments by the Hon’ble Supreme Court as well as by the High Courts, and for recovery of the amount the complaint case in the nature of criminal case is misuse of process of law, and in view of that, the two judgments relied by the learned counsel appearing on behalf of the petitioner in the cases of ‘Anand Kumar Mohatta and Others v. State (Government of N.C.T. of Delhi) Department of Home and Others(supra)’ as well as in the case of ‘Vijay Kumar Ghai and Others v. The State of West Bengal and Others (supra)’ are helping the case of the petitioner. 11. Recently, the Hon’ble Supreme Court has considered Sections 406 as well as 420 of the Indian Penal Code in the case of Delhi Race Club (1940) Ltd. & Ors. Versus State of Uttar Pradesh & Anr., reported in 2024 SCC OnLine SC 2248, where in para-36 it has been held as follows:- “36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi and Others v. State of Uttar Pradesh and Another : 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) and Others v. State of Jharkhand and Another : 2023 SCC OnLine Jhar 301].” 12. [See : Lalit Chaturvedi and Others v. State of Uttar Pradesh and Another : 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) and Others v. State of Jharkhand and Another : 2023 SCC OnLine Jhar 301].” 12. Further, the cognizance has not been taken against the company and cognizance has been taken against the Managing Director and in absence of specific allegation and averment against the Managing Director with regard to the individual role, vicarious liability cannot be fastened upon the Managing Director. A reference may be made to the case of ‘Ravindranatha Bajpe v. Mangalore Special Economic Zone Limited and Others’, reported in (2022) 15 SCC 430 , wherein at paragraph nos.8.2 and 9.0, it has been held as under: “8.2. As observed by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] and even thereafter in a catena of decisions, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. In para 28 in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400], it is observed and held as under : (SCC p. 760) “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 9. From the order passed by the learned Magistrate issuing the process against the respondents herein, Accused 1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie case against Respondents 2 to 5 and 7 and 8. Merely because Respondents 2 to 5 and 7 and 8 are the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against Respondents 1 to 8 herein — original Accused 1 to 8 for the offences punishable under Sections 427, 447, 506 and 120-B read with Section 34IPC.” 13. In view of the above and considering that the cognizance is not there against the company and cognizance is taken only against the Managing Director, for vicarious liability in respect of individual role played by the Managing Director is not disclosed in the complaint petition, as such, vicarious liability cannot be fastened against the Managing Director. Further, what has been discussed hereinabove, it is a clear case of recovery of money and part payment has already been made which clearly suggest that intention to cheat from the very beginning is not there. As such, entire criminal proceeding including the cognizance order dated 06.03.2024 in connection with C.P. Case No.1499 of 2023, pending in the court of learned Civil Judge (Sr.Division) cum-Judicial Magistrate, Bokaro are hereby quashed. 14. This petition is allowed and disposed of. 15. Pending petition if any also stands disposed of accordingly. 16. It is made clear that if any civil proceeding is there, that will be decided in accordance with law without prejudice to this order.