JUDGMENT : Saurabh Shyam Shamshery, J. Heard Sri A Kumar Srivastava, learned counsel for applicant, Sri Raj Kumar Singh, learned counsel for opposite party No. 2 and Sri Rakesh Kumar Mishra, learned A.G.A. for State. 2. The applicant is aggrieved by an impugned order dated 10.10.2023 passed by learned Magistrate, under Section 204 Cr.P.C., whereby applicant is being summoned to face trial under Section 420, 406 I.P.C. in a Criminal Complaint Case No. 4623 of 2022, Police Station-Kotwali, District-Ballia. For reference, impugned order in its entirety is reproduced hereinafter : 3. Learned counsel for applicant has submitted that on basis of contents of complaint, statements recorded under Sections 200 and 202 Cr.P.C., offence under Section 420, 406 I.P.C. could not be made out as not only both offences could not run together but their respective ingredients are also not made out. 4. The aforesaid submissions are opposed by learned counsel for opposite party No. 2, that there are sufficient grounds to proceed against the applicant. 5. In order to appreciate rival submissions, I have carefully perused impugned order as well as other material placed on record. The case as put by complainant was that the applicant was his authorized representative and he was executing a deal struck between parties, settled for amount of Rs. 1 crore 40 lakh for sale of land owned by the complainant, out of which Rs. 30 lakh was given as advance amount and Rs. 80 lakh were given in form of different cheques by vendees. 6. It was further alleged that agreement to sale does not finally take place, therefore, a cancellation deed was prepared and according to its terms Rs. 30 lakh (earnest amount) was returned by complainant to vender through transfer in bank account. It was further alleged that applicant has returned a cheque of Rs. 25 lakh to complainant and further alleged that dispute remained in regard to five cheques of Rs. 10 lakh, 15 lakh, 15 lakh, 10 lakh and 5 lakh respectively (total Rs. 55 lakh), which ought to have been returned to complainant but the applicant allegedly misused it and deposit it in the bank, which got dishonoured though no complaint was filed under Negotiable Instruments Act. 7. 10 lakh, 15 lakh, 15 lakh, 10 lakh and 5 lakh respectively (total Rs. 55 lakh), which ought to have been returned to complainant but the applicant allegedly misused it and deposit it in the bank, which got dishonoured though no complaint was filed under Negotiable Instruments Act. 7. Learned Trial Court on basis of above referred allegations come to conclusion that there are sufficient grounds to proceed against applicant and summoned him under Section 420, 406 I.P.C. So far as ingredients of Sections 415, 420 I.P.C. is concerned, it would be relevant to quote few paragraphs of a recent judgment passed by Supreme Court in case of Raju Krishna Shedbalkar v. State of Karnataka and another, 2024 SCC OnLine SC 200 and relevant paragraphs thereof are reproduced hereinafter : ''6. Cheating is defined under Section 415 of IPC which reads as follows:- ''415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ''cheat''. 7. A perusal of the aforesaid provision shows that the offence of cheating is in two parts. The first is where a person fraudulently or dishonestly deceives another in inducing that person to deliver any property to any person etc. The second part of the offence would be made out if somebody is deceived to do an act which causes damage or harm to that person ''in body, mind, or reputation or property is said to have cheated''. Time and again, this Court has reiterated that in order to make out an offence under cheating the intention to cheat or deceive should be right from the beginning. By no stretch of imagination, this is even reflected from the complaint made by the informant. 8. In the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , this Court held as under: ''15. By no stretch of imagination, this is even reflected from the complaint made by the informant. 8. In the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , this Court held 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. 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.'' (Emphasis supplied) 9. Further, in the case of Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736 , this position was reiterated in the following manner: 33. The High Court has held that mere breach of contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no ''cheating''. The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to Section 415 make this position clear: ''(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. Illustrations (f) and (g) to Section 415 make this position clear: ''(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. (g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery, A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.'' (emphasis supplied)'' 8. As referred above, applicant was acting as a representative of the complainant and an agreement was entered between the vendee and vendor, however, it was not completely materialized, therefore, cancelled by executing a cancellation deed and a cheque of Rs. 25 lakh was returned to complainant by the applicant also, though a dispute still remained regarding cheques allegedly remained with the applicant (5 in numbers of total Rs. 55 lakh). I have carefully perused the cancellation deed of agreement, however, present applicant was not signatory to it, therefore, he is not bound by contents of cancellation deed. The allegations against applicant are that he has not returned different cheques of total amount of Rs. 55 lakh of which he was custodian. Contents of statement does not state how applicant has dishonest intention. Cheques were allegedly handed over to applicant being his representative, therefore, the ingredients of Section 415, 420 are absolutely not made out. 9. The allegation against applicant is of not returning the cheques of different amounts total being Rs. 55 lakh to complainant and wrongfully it was deposited and got bounced but admittedly no proceedings were initiated under Negotiable Instrument Act as referred above, there is no material on record that cheques were handed over to applicant and it was misused, otherwise also the details of cheques are also not on record as well as details of memo of bank are also not on record. 10. 10. There is nothing on record that cheques were entrusted to applicant to fulfil basic ingredients of Section 406 I.P.C. I have carefully perused ^Áfrfuf/k in* however, it does not on records that cheques were handed over to him. There is absolutely no evidence that cheques were in any manner entrusted to the applicant. At this stage, the Court takes note of a judgment passed by Supreme Court in case of Deepak Gaba and others v. State of U.P. and another, (2023) 3 SCC 423 , and few paragraphs of it being relevant are reproduced hereinafter : ''14. Section 406IPC [''406. Punishment for criminal breach of trust.-Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.''] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405IPC. [''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''.***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. Adishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.''(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405IPC are excluded, as they are irrelevant.)] 15. For Section 405IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) 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. 16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646] 17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646] 17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that ''a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand''. A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC. 28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal Courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650], as it refers to earlier case laws in copious detail.'' 11. In the present case, entrustment is not evident from any documents. To avoid prolixity, we would only like to refer to the judgment of this Court in [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650], as it refers to earlier case laws in copious detail.'' 11. In the present case, entrustment is not evident from any documents. In any case, if any condition of agreement was violated, it would invite a civil remedy and not a criminal proceedings, otherwise applicant is not a signatory either to agreement to sale or cancellation of agreement to sale. 12. In the aforesaid circumstances, taking note of facts of case, wherein ingredients of Sections 420 and 406 I.P.C. are absolutely not made out and as such there are no grounds to proceed against applicant, therefore, summoning order become illegal and accordingly it is set aside. 13. Accordingly, application is allowed. 14. Registrar (Compliance) to take steps.