- (1.) THIS revision application has been filed for quashing of the entire criminal proceeding of complaint case no. PCR 210 of 2000 including the order dated 26.6.2000 whereby and whereunder the then Sub -divisional Judicial Magistrate, Dumka took cognizance of the offences under Sections 406 and 420 of the Indian Penal Code. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that the complainant, Shailendra Kumar Choudhary, opposite party no.2 lodged a complaint which was registered as complaint case no.210 of 2000 wherein it has been stated that he used to give his services with diesel generator set (3.5 KVA) to the State Bank of India which was being run in the building of P.W.D, Dumka on payment of Rs.1800/ - per month. Subsequently, office of the State Bank of India, Main Branch, Dumka got shifted to his own building and it purchased diesel generator set of 63 KVA. On its installation, tender was invited for its operation and maintenance. The complainant submitted his tender paper and came out successful and was awarded work whereby as per term s and conditions, he is to run generator in case of power failure and in lieu of that, a sum of Rs.10,000/ - was to be paid but the complainant was to incur expenses for fuel, lubricants, grease etc. excluding the cost for major repairing work. In course of time, price of diesel was enhanced. Apart from that, maintenance cost also got increased and hence, a request was made by the complainant to enhance the maintenance cost and other cost for operating the generator set. Upon which, the Branch Manager told him that the matter has been moved to the higher officials for increase of the maintenance cost. On such assurance, the complainant went on giving services by investing huge amount but the Branch Manager never entered into a fresh agreement and thereby put the complainant to heavy loss. On these allegations it was alleged that the petitioners have committed offences punishable under Sections 406 and 420 of the Indian Penal Code. On such complaint, cognizance was taken, vide order dated 26.6.2000 under Sections 406 and 420 of the Indian Penal Code. Under the aforesaid circumstances, the question does arise as to whether the allegation made in the complaint does constitute offence of cheating or misappropriation ? The offence of cheating has been defined in Section 415 of the Indian Penal Code which reads as follows:
(2.) 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 . On bare perusal of the aforesaid provision, it does appear that the following ingredients be there for constituting offence of cheating. (I) deception of a person either by making a false or misleading representation or by other action or omission. (II) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person 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. At this stage, I may refer to a decision rendered in a case of Hridaya Ranjan Prasad Verma vs. State of Bihar [(2000) 4 SCC 168] wherein it has been held as under: " 14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 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.  On applying the law laid down by the Honble Supreme Court, it be stated that the petitioners have never been alleged to have induced the complainant fraudulently or dishonestly to give his services. Therefore, the question of committing offence under Section 420 of the Indian Penal Code does not arise. Similarly, no offence of criminal breach of trust is made out as no allegation is there against the petitioners to have dishonestly converted the money to their own use to satisfy the ingredients of Section 405 of the Indian Penal Code punishable under Section 406 of the Indian Penal Code. Under the circumstances, learned court below committed illegality in taking cognizance of the offence under Sections 420 and 406 of the Indian Penal Code and hence, the entire criminal proceeding of complaint case no. PCR 210 of 2000 including the order dated 26.6.2000 is hereby set aside. In the result, this application is allowed. ;