JUDGMENT : Anil Kumar Choudhary, J. Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding including the order dated 04.08.2022 passed by learned Judicial Magistrate, Dhanbad in connection with C.P. Case No.3916 of 2019 whereby and where under the learned Judicial Magistrate, Dhanbad has found prima facie case to proceed against the petitioners and taken cognizance of the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioners. 3. The allegation against the petitioners is that the petitioner no.1 took a friendly loan of Rs.13,15,000/- with a promise to repay the same once the loan which he had applied from the State Bank of India is sanctioned in his favour. The complainant after getting the information that the loan has been sanctioned in favour of the petitioner no.1 and the complainant approached for repayment of the loan which the petitioner no.1 has taken from the complainant. The petitioner no.1 issued 10 cheques, out of which 5 cheques were signed by him as proprietor of Roop Rang Furniture and another 5 cheques belonged to a different bank account which was issued by the petitioner no.2 in the name of another proprietorship firm of which the petitioner no.2 was a proprietor. All the 10 cheques were dishonoured because of the insufficiency of fund in the accounts, but the petitioner no.1 assured the complainant that he will pay back the loan taken and not to institute the case, hence, the complainant did not institute any case, but ultimately as the petitioner did not pay the loan amount, this case has been filed. 4. Learned counsel for the petitioners relying upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-6 of which reads as under:- 6. “Xxxx xxxx xxxx It is well settled 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. “Xxxx xxxx xxxx It is well settled 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. In the present case it has nowhere been stated 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.” (Emphasis supplied) and submits that in order to constitute an offence of cheating, the accused persons must have played deception since the very inception and if the intention to cheat develops later on, the same will not amount to cheating and in this case since there is no allegation against the petitioners of playing deception since the beginning of the transaction between the parties, hence, the offence of cheating is not made out against the petitioners, even if the entire allegations made against the petitioners are considered to be true in their entirety. 5. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Satish Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148 paragraph nos.11 and 13 of which reads as under:- 13. Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.” (Emphasis supplied) wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that the mere inability of the accused person to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction between the parties and also held that law clearly recognizes difference between simple payment and investment of money and entrustment of money or property, a mere breach of promise, agreement or contract does not ipso facto constitute the offence of criminal breach of trust contained in Section 405 of the Indian Penal Code without there being a clear case of entrustment. 6. Learned counsel for the petitioners next submit that in this case, there is no allegation of entrustment and the friendly loan taken by no stretch of imagination can be termed as entrusted as the word ‘entrusted’ has been used in Section 405 of the Indian Penal Code. 7. 6. Learned counsel for the petitioners next submit that in this case, there is no allegation of entrustment and the friendly loan taken by no stretch of imagination can be termed as entrusted as the word ‘entrusted’ has been used in Section 405 of the Indian Penal Code. 7. Learned counsel for the petitioners next relies upon the judgment of this Court in the case of Ajay Sagar @ Ajay Prem Sagar & Another vs. The State of Jharkhand & Another passed in Cr.M.P. No.3781 of 2022 dated 28.06.2023, wherein this Court has relied upon the judgment of the Hon’ble Supreme Court of India in the case of Krishna Lal Chawla & Others vs. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435 and submits that therein it has been observed by the Hon’ble Supreme Court of India that it is the litigant's bounden duty to make a full and true disclosure of facts and it is a matter of trite law that suppression of material facts before a court amounts to abuse of the process of the court, and shall be dealt with a heavy hand. Therefore, it is lastly submitted that the prayer as prayed for by the petitioners in this Cr.M.P., be allowed. 8. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in the instant Cr.M.P and submit that the proprietorship firm of petitioner no.2 is Roop Rang Furniture whereas the proprietorship firm of the petitioner no.1 is Roop Rang Furniture and it also bears another name Roop Rang Furniture and Home Appliances Mart, so two different firms with similar names cannot have two different proprietors. It is further submitted that both the offences punishable under Section 406 as well as the 420 of the Indian Penal Code is made out. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the only allegation against the petitioners is that the petitioners took friendly loan which they did not repay. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the only allegation against the petitioners is that the petitioners took friendly loan which they did not repay. It is the admitted case of the complainant that the petitioners issued 10 different cheques, five issued by the petitioner no.1 and five others issued by the petitioner no.2 but the same were dishonoured and though, the petitioner no.1 has promised to repay the cheque amount, but he did not repay the same. From the above allegations taken at their face value, there is absolutely no allegation against the petitioner no.2 except that the petitioner no.2 issued some cheques which were dishonoured and there is no allegation of cheating or entrustment of any money to the petitioner no.2. There is no allegation that any demand on the cheque amount was ever made to the petitioner no.2. 10. Under such circumstances, this Court has no hesitation in holding that neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioner no.2 even if the entire allegations made against him are considered to be true in their entirety. 11. So far as the petitioner no.1 is concerned, there is no allegation against the petitioner no.1 of playing deception since the very inception. Admittedly, the petitioner no.1 took the loan from the complainant and on the complainant getting information that the loan has been sanctioned in favour of the petitioner no.1 and on being approached by the complainant, the petitioner no.1 issued cheques for repayment of the loan amount taken by him. 12. Admittedly, the petitioner no.1 took the loan from the complainant and on the complainant getting information that the loan has been sanctioned in favour of the petitioner no.1 and on being approached by the complainant, the petitioner no.1 issued cheques for repayment of the loan amount taken by him. 12. Under such circumstances, this Court is of the considered view that the essential ingredients to constitute the offence of cheating as has been reiterated by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 that to constitute the offence of cheating, the accused person must have played deception since the very inception, this Court has no hesitation in holding that even if the allegations against the petitioners are considered to be true in their 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 the Indian Penal Code is concerned, it is pertinent to mention here that the essential ingredients to constitute the offence punishable under Section 406 are as follows:- (i) There must be an entrustment; and (ii) there must be misappropriation or conversion to one’s own use or use in violation of a legal direction or of legal contract. as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. C.B.I. reported in (2003) 3 SCC 641 . 14. Now coming to the facts of the case, the only allegation against the petitioner no.1 of the case is that the he took some money as friendly loan; hence, the same cannot be termed as money entrusted as the word ‘entrusted’ has been used in Section 405 of the Indian Penal Code. Moreover, there is no allegation against the petitioner no.1 of dishonest misappropriation of any entrusted property and in the absence of this essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code, this Court is of the considered view that even if the allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of Indian Penal Code is not made out in case the petitioner no.1. 15. 15. In view of the discussions made above as neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 04.08.2022 passed by learned Judicial Magistrate, Dhanbad in connection with C.P. Case No.3916 of 2019, be quashed and set aside. 16. Accordingly, the entire criminal proceeding including the order dated 04.08.2022 passed by learned Judicial Magistrate, Dhanbad in connection with C.P. Case No.3916 of 2019, is quashed and set aside qua the petitioners only. 17. In the result, this Cr.M.P., stands allowed.