JUDGMENT : MANISH CHOUDHURY, J. Heard Mr. A.K. Gupta, learned counsel for the petitioners; Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent no. 1, State of Assam; and Mr. B. Dutta, learned Senior Counsel assisted by Ms. L. Rangpi, learned counsel for the respondent nos. 2 & 3. 2. The instant criminal petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita [ BNSS ], 2023 is preferred by the two petitioners seeking setting aside and quashing of a First Information Report [FIR] registered as Tinsukia Police Station Case no. 440/2024 and all subsequent proceedings undertaken subsequent to the registration of the case. 3. The FIR in connection with Tinsukia Police Station Case no. 440/2024 was lodged before the Officer In-Charge, Tinsukia Police Station on 30.11.2024 by the respondent no. 2 as the informant in the capacity of attorney of his son, Jai Aggarwal. In the FIR, the respondent no. 2- informant stated that Jai Aggarwal is the proprietor of M/s Apex Builder and Contractor having its place of business at Tinsukia. The respondent no. 2-informant stated that having been authorized to act as the attorney of the proprietor of M/s Apex Builder and Contractor in respect of his entire business affairs, he lodged the FIR on behalf of M/s Apex Builder and Contractor. 4. The contents of the FIR, shorn on unnecessary details, go to indicate that the two petitioners herein, who are named as accused in the FIR, paid a visit to the office of M/s Apex Builder and Contractor on 19.12.2021. The petitioner no. 2 was known to the respondent no. 2- informant since earlier as the informant was having a good relationship with the father-in-law of the petitioner no. 2. During the said visit, the informant was informed that the petitioners were allotted with five nos. of preliminary work orders, all dated 18.12.2018, by the office of the District Mission Director, Jal Jiwan Mission –cum- Executive Engineer [PHE], Dibrugarh Division. The informant further stated that the two petitioners had induced him to provide finance to them in order to execute the five nos. of work orders with the assurance that the petitioner no. 1 would look after the execution of the entire works. The informant further stated that the two petitioners had induced him to provide finance to them in order to execute the five nos. of work orders with the assurance that the petitioner no. 1 would look after the execution of the entire works. The informant was made to convince that if he would provide finance for the said work orders, the informant would be repaid the financed amount as and when the petitioners would receive the bill amounts in respect of the work orders. Both the petitioners at the time of soliciting financial assistance assured that the amount the informant would provide as financial assistance would be paid back by 31.03.2023 irrespective of the fact that whether fund would be received from the Jal Jiwan Mission or not. The informant further mentioned that as per the instruction of the petitioners, he provided finance from time to time from 27.12.2021 till the month of August, 2022 by making payment through bank transfer in the name of the petitioners and also in favour of the persons as instructed by the petitioners. The FIR further mentioned that the informant submitted sub-contractor invoices of his firm in respect of the work supervised by the petitioner no. 1 and the tax invoices were reflected in the GST portal of M/s Vijay Agarwal & Sons. The informant had contended that an amount of Rs. 3,11,95,664/- was financed to the petitioners and the petitioners agreed to repay the same within 31.03.2023 but they did not pay back the amount within time. Though during the next two years period the informant and his son had repeatedly tried to contact the petitioners but they avoided any communication with the informant’s side. It was further alleged that whenever the informant’s side tried to contact the petitioners, they had to face ill-treatment. The informant further alleged that at one stage, the petitioners promised that the money would be repaid within 31.10.2024. The informant then wrote a letter to the petitioners on 03.10.2024 asking them to make the payment of Rs. 3,11,95,664/- along with interest amount promised but no response was given by the petitioners to the said letter. The informant had alleged that right from the inception, the petitioners had deceitful and fraudulent intention and with such deceitful and fraudulent intention, the petitioners had obtained the amount and misappropriated the said amount for making wrongful personal gain. 3,11,95,664/- along with interest amount promised but no response was given by the petitioners to the said letter. The informant had alleged that right from the inception, the petitioners had deceitful and fraudulent intention and with such deceitful and fraudulent intention, the petitioners had obtained the amount and misappropriated the said amount for making wrongful personal gain. The informant had alleged that the elements of mens rea and fraudulent and deceitful intent are established from the fact that the petitioners stopped replying to calls, messages, etc. and also from the fact that they denied to return the money after procuring the financial assistance by false representation. 5. Mr. Gupta, learned counsel for the petitioners has submitted that the FIR was lodged on 30.11.2024. On receipt of the FIR, an enquiry was conducted having regard to the fact that the FIR indicated about the commercial transactions. On 30.11.2024, the Officer In-Charge, Tinsukia Police Station decided to make the enquiry within fourteen days by entrusting the inquiry to a Sub-Inspector of Police. The Sub-Inspector of Police to whom the enquiry was entrusted, submitted a Report after enquiry, stating inter alia that the ingredients of the offence were found in existence. In his Report submitted on 09.12.2024, the Sub-Inspector of Police requested the Officer In-Charge, Tinsukia Police Station to register a case for taking further legal action. It was on 09.12.2024, the Officer In-Charge, Tinsukia Police Station based on the FIR lodged by the informant-respondent no. 2, registered the case as Tinsukia Police Station Case no. 440/2024 under Section 406 and Section 420 of the IPC and entrusted the investigation to the Sub-Inspector of Police. 6. It has been brought to the notice of this Court by the petitioners that after registration of the FIR as Tinsukia Police Station Case no. 440/2024, a money suit being Money Suit no. 16/2024 was instituted on 20.12.2024 before the Court of Civil Judge, Senior Division at Tinsukia on behalf of M/s Apex Builder and Contractor. The money suit has been instituted for recovery of money amounting to Rs. 4,95,55,090/- along with interest @ 2% per month from 01.10.2024 till realization. In the plaint, the facts narrated in the FIR have been, more or less, reiterated. In Paragraph 15 of the plaint, the plaintiff has averred that all the documents related to the payment of Rs. The money suit has been instituted for recovery of money amounting to Rs. 4,95,55,090/- along with interest @ 2% per month from 01.10.2024 till realization. In the plaint, the facts narrated in the FIR have been, more or less, reiterated. In Paragraph 15 of the plaint, the plaintiff has averred that all the documents related to the payment of Rs. 3,11,95,664/- to the defendants which amount was agreed to be repaid by the defendants within 31.03.2023, is mentioned. 7. Mr. Dutta, learned Senior Counsel appearing for the respondent no. 2-informant has submitted that there was not even a statement in the instant criminal petition that the petitioners are having any intention to repay the amount which, according to him, was procured from the respondent no. 2-informant and M/s Apex Builder and Contractor by exercising deceit. He has further submitted that it is settled that in certain cases, the very same set of facts may give rise to remedies in civil as well as criminal proceedings. As the element of fraudulent and dishonest intention was present on the part of the petitioners at the time of making the inducement in order to obtain the money, it cannot be said that the respondent no. 2-informant is precluded from setting in motion the criminal proceedings. He has further submitted that since it is the petitioners who have cheated and thereby, deceitfully induced the respondent and M/s Apex Builder and Contractor to deliver the amount, the ingredients of the offence under Section 420 , IPC are clearly made out in the FIR. 8. It is a settled proposition that the inherent powers available under Section 482 , Code of Criminal Procedure, 1973/ Section 528 of BNSS , 2023 for quashing of criminal proceedings at the initial stage can be exercised only where the allegations made in the complaint or the First Information Report, even if they are taken at their face value and accepted in their entirety, do not prima face disclose the commission of an offence or where the uncontroverted allegations made in the FIR or complaint and the evidence relied in support of the same do not disclose the commission of any offence against the accused. 9. Section 415 of the IPC has defined the offence of cheating. 9. Section 415 of the IPC has defined the offence of cheating. As per Section 415 , 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’. Section 420 has defined that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 10. The offence of criminal breach of trust is defined in Section 405 , IPC. As per Section 405 , IPC, 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’. 11. The differences in the ingredients required for constituting an offence of criminal breach of trust [ Section 406 , IPC] vis-à-vis the offence of cheating [ Section 420 , IPC] have been brought out clearly in the case titled S.W. Palanitkar vs. State of Bihar , [2002] 1 SCC 241 , in the following way :- 9. 11. The differences in the ingredients required for constituting an offence of criminal breach of trust [ Section 406 , IPC] vis-à-vis the offence of cheating [ Section 420 , IPC] have been brought out clearly in the case titled S.W. Palanitkar vs. State of Bihar , [2002] 1 SCC 241 , in the following way :- 9. The ingredients in order to constitute a criminal breach of trust are : [i] entrusting a person with property or with any dominion over property, [ii] that person entrusted [a] dishonestly misappropriating or converting that property to his own use; or [b] dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation [i] of any direction of law prescribing the mode in which such trust is to be discharged, [ii] of any legal contract made, touching the discharge of such trust. 10. The ingredients of an offence of cheating are : [i] there should be fraudulent or dishonest inducement of a person by deceiving him, [ii][a] the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or [b] the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and [iii] in cases covered by [ii][b], the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 12. The facts narrated in the FIR lodged in connection with Tinsukia Police Station Case no. 440/2024 pertain to money transactions on the basis of certain work orders issued in favour of the petitioners. It is not an absolute proposition that if the dispute pertain to commercial to transaction, no criminal prosecution can be initiated. 13. The Hon'ble Supreme Court in Rajesh Bajaj vs. State NCT of Delhi and others , [1999] 3 SCC 259 has observed as under :- 10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Penal Code, 1860 [Illustration f] is worthy of notice now : [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. 11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. 14. It has been held in M. Krishnan vs. Vijay Singh and another , [2001] 8 SCC 645 , to the effect that where the factual foundation for the offence have been laid down in the complaint, the High Court should not hasten to quash the criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties. There is no bar against criminal prosecution if the offences punishable under the criminal law are made out against the parties to a civil suit. In Pratibha Rani vs. Suraj Kumar and another , [2020] 14 SCC 552 , it has been observed that there are cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. In Pratibha Rani vs. Suraj Kumar and another , [2020] 14 SCC 552 , it has been observed that there are cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State. The same would not, however, effect the civil proceedings at all for sueing the wrongdoer for the recovery of any dishonestly misappropriated amount. 15. It is also settled that pendency of civil proceedings or subsequent initiation of civil proceedings on the same set of facts involving the same parties is no justification to quash the criminal proceedings if prima facie case exists against the accused persons. 16. In Kamaladevi Agarwal vs. State of West Bengal , [2002] 1 SCC 555 , the Hon'ble Supreme Court has observed as under :- 17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. 17. When one proceeds to read the FIR lodged in connection with Tinsukia Police Station Case no. 440/2024 taking the allegations at their face value and accepting them in their entirety, the ingredients for the offence under Section 420 , IPC are prima facie made out. It is the intention which is the gist of the offences under Section 415 and Section 420 of the IPC. The person must have a fraudulent or dishonest intention at the time of making the promise. Though subsequent conduct is not the sole test in case of cheating, yet, the intention of the accused at the time of inducement can be inferred by looking into the subsequent conduct. 18. The person must have a fraudulent or dishonest intention at the time of making the promise. Though subsequent conduct is not the sole test in case of cheating, yet, the intention of the accused at the time of inducement can be inferred by looking into the subsequent conduct. 18. For the offence of criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. In criminal breach of trust, proof of entrustment is essential. In case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. 19. Having regard to the entire allegations made in the FIR, this Court is of the considered view that the FIR could have been registered only for the offence under Section 420 , IPC, that is, for the offence of cheating. But the allegations do not make out any case of criminal breach of trust for the offence under Section 406 , IPC. 20. In the light of the discussion made above and having regard to the ingredients of the offences defined in Section 406 and Section 420 of the IPC, this Court is of the considered view that the allegations made in the FIR prima facie only make out the ingredients of Section 420 , IPC and not Section 406 , IPC. Therefore, the FIR in connection with Tinsukia Police Station Case no. 440/2024 to the extent of registration of Section 406 , IPC is set aside and quashed. Consequently, the investigation of the case can proceed only for the offence under Section 420 , IPC. 21. The criminal petition is partly allowed to the extent indicated above. No cost.