JUDGMENT AND ORDER (ORAL) : Heard Mr. H. Ali, learned counsel for the petitioner Sri Keshab Gogoi, who has filed this application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS for short) with prayer for quashing the proceeding in PRC No. 293/2024 and the order of taking cognizance dated 19.08.2024 in the aforementioned case. 2. Heard learned counsel Mr. S.K. Poddar and learned counsel Mr. R. Ghosh for the respondent No. 2 Sri Nitul Medhi and learned Additional Public Prosecutor Mr. B. Sarma for the respondent State. 3. It is submitted by the learned counsel for the petitioner that vide order dated 19.08.2024 in PRC No. 293/2024, cognizance was taken under Sections 406/420 of the Indian Penal Code, 1860 (IPC for short), whereas no case under the aforementioned sections of law has been made out against the accused person Keshab Gogoi. 4. It is further submitted that the charge sheet clearly reveals that there was no initial intention of cheating. 5. The FIR unfolds that both the petitioner and the respondent No. 2 entered into a partnership agreement on 15.09.2019 for contractual work and the respondent No. 2 invested Rs.1,03,07,702/- (Rupees One Crore Three Lacs Seven Thousand Seven Hundred and Two) and he paid Rs.15,00,000/- (Rupees Fifteen Lacs) in cash and the remaining money was invested by the complainant for labour cost, sand, gravel, cement, post etc. A joint account was maintained by the partnership firm between the complainant and the accused, and when the first bill was paid, the bill was received and deposited in the joint account of the complainant and the accused i.e. the respondent No. 2 and the petitioner. The account is maintained at Vijaya Bank, Bongaigaon Town Branch. Out of the initial payment of Rs.32,39,709/- (Rupees Thirty Two Lacs Thirty Nine Thousand Seven Hundred and Nine), a sum of Rs.26,00,000/- (Rupees Twenty Six Lacs) was paid to the respondent No. 2 and Rs.6,00,000/- (Rupees Six Lacs) was taken by the petitioner. On 17.04.2021, the second bill of Rs.26,59,176/- (Rupees Twenty Six Lacs Fifty Nine Thousand One Hundred and Seventy Six) was paid in the personal account of the petitioner’s bank at Canara Bank, Beltola Branch. The third bill of Rs.16,13,270/- (Rupees Sixteen Lacs Thirteen Thousand Two Hundred and Seventy) was also paid into the same personal account of the petitioner. On 17.04.2021, the second bill of Rs.26,59,176/- (Rupees Twenty Six Lacs Fifty Nine Thousand One Hundred and Seventy Six) was paid in the personal account of the petitioner’s bank at Canara Bank, Beltola Branch. The third bill of Rs.16,13,270/- (Rupees Sixteen Lacs Thirteen Thousand Two Hundred and Seventy) was also paid into the same personal account of the petitioner. However, as per the terms and conditions of the agreement executed between both the parties, the money ought to have been deposited in the joint account. Without the knowledge of the respondent No. 2, the aforementioned two installments were deposited in the petitioner’s personal account, and the deposited amount has been misappropriated by the petitioner. When the respondent No. 2 demanded the money, the petitioner rebuked him using slang language and also threatened him. This impelled the complainant/respondent No. 2 to file a complaint petition and after his initial deposition was recorded, this case was forwarded to the Investigating Officer (IO for short) for investigation. 6. After charge sheet was submitted, cognizance was taken under Sections 406/420 of IPC. 7. It is submitted that no ingredient under Section 420/406 of IPC has been made out. The petitioner has relied on the following decisions :- (i) Paramjeet Batra Versus State of Uttarakhand & Ors. reported in 2012 (12) SCALE 688 . (ii) Bisu Alom Versus The State of Assam Rep. By PP, Assam and Anr. reported in 2021 (1) GLR 130. (iii) Vesa Holdings P. Ltd. & Anr. Versus State of Kerala & Ors. reported in AIR 2015 SC (Supp) 1085. 8. Per contra, learned counsel for the respondent No. 2 Mr. S.K. Poddar laid stress in his argument that the respondent No. 2 has invested vast sum of money, which has been misappropriated by the petitioner. 9. In the instant case, it is too early to decipher if there was any intention to cheat the respondent No. 2. 10. The argument of the learned counsel for the petitioner that the petitioner had no initial intention to cheat the respondent No. 2 cannot be accepted at this stage when only cognizance has been taken and charge is yet to be framed. 11. Adopting the argument of the learned counsel for the respondent No. 2, learned Additional Public Prosecutor Mr. 10. The argument of the learned counsel for the petitioner that the petitioner had no initial intention to cheat the respondent No. 2 cannot be accepted at this stage when only cognizance has been taken and charge is yet to be framed. 11. Adopting the argument of the learned counsel for the respondent No. 2, learned Additional Public Prosecutor Mr. B. Sarma for the State of Assam, laid stress in his argument that indeed, only cognizance has been taken at this stage on finding a prima facie case against the petitioner. The order of cognizance whether sustainable or perverse can be decided at the stage of framing of charge when the initial deposition and the statements of the witnesses will be scrutinized by the learned Trial Court. 12. Learned counsel for the respondent No. 2 has also drawn the attention of this Court to Annexure-A, which is the Deed of Partnership executed between the petitioner and the respondent No. 2 and paragraph 3 of the agreement clearly reflects that the capital required for the partnership business shall be contributed time to time by the respondent No. 2 and the respondent No. 2 was investing in the firm. Paragraph 6 clearly reflects that the profits of the partnership business shall be divided equally between both the partners, but admittedly the profits have been deposited in the petitioner’s personal account in the bank. It was in the agreement that the partners would have a bank account in the Vijaya Bank, Bongaigaon Branch, but the money was deposited from the second instalment in the petitioner’s personal account in the bank at Canara Bank, Beltola Branch. 13. I have considered the submissions at the bar with circumspection. A roving enquiry is not required to be made at this stage, as on finding a prima facie case, cognizance was taken. The petitioner can raise the same issue at the time of framing of charge and the Trial Court may deal with the submissions relating to the prayer for discharge, if made, in accordance with law. 14. Learned counsel for the respondent No. 2 has relied on the decision of the Hon’ble Supreme Court in Pradeep Kumar Kesarwani Versus The State of Uttar Pradesh & Anr. reported in 2025 Supreme (SC) 1667 wherein it has been held that :- “20. 14. Learned counsel for the respondent No. 2 has relied on the decision of the Hon’ble Supreme Court in Pradeep Kumar Kesarwani Versus The State of Uttar Pradesh & Anr. reported in 2025 Supreme (SC) 1667 wherein it has been held that :- “20. The following steps should ordinarily determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal – proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. [(See: Rajiv Thapar & Ors. v. Madan Lal Kapoor (Criminal Appeal No. 174 of 2013) : (2013) 1 Supreme 435 ]” 15. Relying on this decision, it has been argued that the material relied upon by the petitioner is not of sound, reasonable, indubitable, sterling and impeccable quality. The amount of money invested by the respondent No. 2 has been diverted in the petitioner’s own bank account in the form of profit. 16. Relying on this decision, it has been argued that the material relied upon by the petitioner is not of sound, reasonable, indubitable, sterling and impeccable quality. The amount of money invested by the respondent No. 2 has been diverted in the petitioner’s own bank account in the form of profit. 16. The respondent No. 2 has also relied on the decision of this Court in Anil Todi @ Anil Kumar Todi & Ors. Versus The State of Assam & Ors. reported in 2017 (2) GLT 1169 wherein it has been held that :- “27. It deserves a mention here that the stage of framing of charge in the complaint under this quashing proceeding has not reached yet. Taking cognizance under Section 406 and 420 of the Indian Penal Code does not automatically mean that charge against accused/petitioners would necessarily be under the provisions under which cognizance has been taken. The learned Chief Judicial Magistrate while taking up the complaint, as a usual course of law, would consider the evidence to be led by the parties before arriving at a decision as to under which provisions of law he will frame the charge, if at all required to frame a charge. Therefore, to go to the merit of the provisions of law under which cognizance was taken on the basis of the initial statements of the complainant/opposite party No. 2 and his witnesses is not of much relevance at this stage.” 17. Indeed in the instant case too, the stage of framing of charge has not reached yet. It is true that taking cognizance under Sections 406 and 420 of the IPC does not automatically mean that the charge against the petitioner would necessarily be under the same provisions of law, under which cognizance has been taken. 18. On the other hand, it has been held by the Supreme Court in Vesa Holdings P. Ltd. & Anr. (supra) that :- “12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. 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 a 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 420 IPC. 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 malafide or otherwise an abuse of the process of the court. 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 court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.” 19. However, reverting back to this case, it is held that 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 a ground to quash a criminal proceeding. However, reverting back to this case, it is held that 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 a ground to quash a criminal proceeding. At the stage of taking cognizance, it is too early to cull out if any ingredients of offence under Sections 420 IPC or 406 of IPC, on the basis of the complaint petition and the initial deposition of the witnesses as well as the statements of the witnesses has been made out. It cannot be conclusively decided at this stage before framing of charge, if an offence under Sections 406 or 420 of IPC has not been made out. 20. The petitioner has also relied on the decision of Paramjeet Batra (supra) wherein it has been held that :- “7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court. 8. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2’s attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by respondent 2 against him alleging offence under Section 406 of the IPC. Respondent 2’s attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by respondent 2 against him alleging offence under Section 406 of the IPC. Possession of the shop in question has also been handed over by the appellant to respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise.” 21. The petitioner has relied on the decision of this Court in Bisu Alom (supra) wherein it has been held that :- “19...Mere failure to make a payment at a subsequent point of time cannot be presumed in a sense that the accused persons had fraudulent or dishonest intention at the time of inception, that is, at the time of engaging the informant for the jobs. The dispute between the parties appears to be purely civil in nature and no case is made out for proceeding with the criminal case. In such view of the matter, the initiation and continuance of the criminal prosecution against the accused persons i.e. the petitioners herein are found out to be in abuse of the process of Court and to cause harassment to the accused persons in order to coerce to make payment of the outstanding dues. If any dues have remained outstanding, the informant definitely has a remedy in civil law.” 22. In the case at hand, there appears that there are essential ingredients of a criminal offence as it is submitted that investments were made by the respondent No. 2 and the fruits of these investments in the form of profits has been misappropriated by the petitioner. The fact that a title suit has been brought up against the petitioner does not absolve the petitioner of any criminal case against him, where there is allegation of misappropriation against him. At this initial stage, while exercising jurisdiction under Section 482 of IPC, a Court has to be cautious and this power has to be used sparingly and only for the purpose of preventing abuse of the process of the Court or otherwise to secure the ends of justice. 23. The ratio of the decision of this Court in Bisu Alom’s case is however not applicable to this case as the facts and circumstances are not similar. 24. 23. The ratio of the decision of this Court in Bisu Alom’s case is however not applicable to this case as the facts and circumstances are not similar. 24. Thereby, in view of the foregoing discussions, it is held that the petitioner may raise the same issue before the Trial Court at the stage of framing of charge which may be considered by the Trial Court in accordance with law. At this stage, it is too early to conclusively decide if there is no case under Sections 406 IPC or under Section 420 of IPC. The petitioner is therefore directed to approach the Trial Court and place his case before the Trial Court at the stage of framing of charge. 25. In view of the above observation, this petition stands disposed of. 26. Send back the Trial Court Record.