JUDGMENT : Anil Kumar Choudhary, J. 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 including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021 whereby and where under, the learned Judicial Magistrate 1st Class, Dhanbad found prima facie case for the offences punishable under Sections 420, 406 and 34 of Indian Penal Code and ordered for issue of summons. 3. The allegation against the petitioner is that the complainant was working as a petty contractor in Dhanbad Zonal Railway. During the year 2017-18, the co-accused-Arun Agarwal got a work in that area. The petitioner who is permanent employee of Indian Railways and presently posted as Sr. Section Engineer at Hazaribagh Road and then working as a Junior Engineer along with other officers of Railways made the complainant to do the work of co-accused-Arun Agarwal with the promise to pay the bill of the complainant for the work thus done. The complainant did the work of co-accused-Arun Agarwal of Rs.20,00,000/-. The petitioner stopped the bill of the complainant relating to other works done by him and forced him to do the work of co-accused-Arun Agarwal. The complainant did the work of co-accused-Arun Agarwal after taking loan. The payment of Rs.5,00,000/- was made but Rs.15,00,000/- was not paid to the complainant and on the complainant demanding money on 20.02.2021 at 11:00 am, the petitioner called the complainant to his residence at Gomoh and along with co-accused persons assaulted him and made him sign blank papers. 4. The learned Judicial Magistrate 1st Class, Dhanbad taking into consideration the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses observed that there is sufficient material to proceed inter alia against the petitioner for having committed the offences punishable under Section 420, 406 and 34 of Indian Penal Code and ordered for issue of summons. 5. 5. It is submitted by the learned counsel for the petitioner that since it is the admitted case of the complainant that the co-accused-Arun Agarwal made part payment of the work done by the complainant of co-accused-Arun Agarwal hence, the petitioner has no role in the same nor there is any allegation that the petitioner had any intention to cheat the complainant since the very inception and the offence punishable under Section 420 of Indian Penal Code is not made out against the petitioner. It is next submitted by the learned counsel for the petitioner that there is absolutely no allegation of any entrustment of any property to the petitioner and in the absence of any entrustment of property, the offence punishable under Section 406 of Indian Penal Code is also not made out against the petitioner. Relying upon the judgment of Hon’ble Supreme Court of India in the case of S.W. Palanitkar vs. State of Bihar reported in (2002) 1 SCC 241 , paragraph no.8 of which reads as under:- “8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.” (Emphasis supplied) It is submitted by the learned counsel for the petitioner that mens rea is a sine-qua-non for a breach of trust giving rise to a criminal prosecution. 6. Learned counsel for the petitioner next relies 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 , paragraph no. 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. 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) and submits that as there is no allegation against the petitioner that the petitioner had fraudulent or dishonest intention at the time of making the alleged promise hence, the offence punishable under Section 420 of Indian Penal Code is not made out. 7. Learned counsel for the petitioner next relies upon the judgment of Hon’ble Supreme Court of India in the case of Deepak Gaba & Ors. vs. State of Uttar Pradesh & Anr. reported in (2023) 3 SCC 423 , paragraph no. 28 and 29 of which reads as under:- “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 471 IPC, 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. 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. 29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650], it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion.” and submits that the Hon’ble Supreme Court of India held that the courts must cautiously examine the facts to ascertain whether they only constitute a wrong, as the ingredients of the criminal wrong is missing which the learned Magistrate failed to do so. 8. Learned counsel for the petitioner further relies upon the judgment of Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , paragraph no. 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. 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 non refunding of an advance of amount would not constitute the offence of cheating and as in this case the complainant has been paid part of the money by the co-accused-Arun Agarwal hence, on that score, no offence punishable in law is made out. 9. Hence, it is submitted that the entire criminal proceeding including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021 be quashed and set aside. 10. Learned Additional Public Prosecutor on the other hand opposes the prayer for quashing the entire criminal proceeding including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021. It is submitted by the learned Addl. P.P. that there is direct and specific allegation against the petitioner of being in furtherance of common intention with the co-accused persons both having committed cheating as well as of having committed criminal breach of trust hence, the learned Judicial Magistrate 1st Class, Dhanbad has rightly observed that there is sufficient evidence in the record to proceed against the petitioner for having committed the offence punishable under Section 420, 406 and 34 of Indian Penal Code. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. 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 that in order to constitute the offence punishable under Section 420 of Indian Penal Code the accused having intention to cheat from the very inception is essential. 12. Now coming to the facts of the case, there is no allegation against the petitioner that the petitioner had any intention to cheat the complainant at the time he promised that if the complainant does the work of co-accused-Arun Agarwal, the complainant will be paid his dues. 12. Now coming to the facts of the case, there is no allegation against the petitioner that the petitioner had any intention to cheat the complainant at the time he promised that if the complainant does the work of co-accused-Arun Agarwal, the complainant will be paid his dues. In the absence of that, this Court has no hesitation in holding that even if the entire allegation made against the petitioner in the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses are treated to be true in its entirety, still, the offence punishable under Section 420 of Indian Penal Code is not made out. 13. So far as the offence punishable under Section 406 of Indian Penal Code is concerned, the entrustment is an essential ingredient of the said offence. 14. Now coming to the facts of the case, there is absolutely no allegation of any entrustment of any property or valuable security to the petitioner by the complainant or for that matter anybody else. 15. Considering the facts of the case as part of the amount has already been admitted to be paid by the co-accused-Arun Agarwal, this Court is of the considered view that the allegation made against the petitioner in the absence of entrustment or dishonest misappropriation of any property by the petitioner or anybody else, even if the allegations are considered to be true in its entirety, still, the offence punishable under Section 406 of Indian Penal Code is not made out. 16. In view of the discussions made above, this Court is of the considered view that as no offence is made out against the petitioner hence, continuation of the criminal proceeding will amount to abuse of process of law hence this is a fit case where the entire criminal proceeding including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021 be quashed and set aside. 17. Accordingly, the entire criminal proceeding including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021 is quashed and set aside. 18. In the result, this criminal miscellaneous petition is allowed.