JUDGMENT : Anil Kumar Choudhary, J. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of BNSS, 2023 with the prayer for quashing and setting aside the order dated 22.07.2024 passed in Cr. Revision no. 87 of 2024 by learned Sessions Judge, Dhanbad whereby and whereunder, learned Sessions Judge, Dhanbad dismissed the revision application which was preferred against the order dated 22.02.2024 passed by learned JMFC, Dhanbad and also prayer has been made for setting aside the order dated 22.02.2024 passed by JMFC, Dhanbad in C.P. case no. 14686 of 2023 by which, learned Magistrate did not take cognizance of the offences and dismissed the C.P. case no. 14686 of 2023 under Section 203 of the CrPC. 3. The brief fact of the case is that the petitioner filed Complaint Case no. 14686 of 2023 in the court of learned JMFC, alleging therein that the opp. Party no. 2 herein, who was proposed accused person of the complaint, has taken a loan of Rs. 6,00,000/- from the complainant with the promise of alluring returns but did not repay the loan. Learned JMFC considered that this is a simple case of advance of loan and therefore, is a case of civil in nature and in the absence of the essential ingredient to constitute the offence of cheating and criminal breach of trust; moreover as the element of fraud from the inception, was not alleged, hence, relied upon the judgment of the Hon’ble Supreme Court of India in the case of M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. And Ors. Reported in (2006) 6 SCC 736 wherein it was observed by the Hon’ble Supreme Court of India, that when the matter is essentially of civil nature and has been given a cloak of criminal offence, the criminal proceedings are not a short cut of other remedies available in law and by thus considering, came to the conclusion that no case is made out constituting the offence punishable under Section 420 or 406 of IPC and dismissed the complaint under section 203 of CrPC. 4. Being aggrieved by the said order, the petitioner filed Cr. Rev. No. 87 of 2024 before learned Sessions Judge, Dhanbad and learned Sessions Judge, considered that nowhere in the complaint, it has been mentioned that there was any intention of cheating by the opp. 4. Being aggrieved by the said order, the petitioner filed Cr. Rev. No. 87 of 2024 before learned Sessions Judge, Dhanbad and learned Sessions Judge, considered that nowhere in the complaint, it has been mentioned that there was any intention of cheating by the opp. Party no. 2 which is a condition precedent for the offence punishable under Section 420 of IPC and as there is no material in the record pointing out to the fact that any property was entrusted to the opp. Party no. 2, which he dishonestly converted to his own use, the offence punishable under Section 406 of IPC is not made out and did not find any infirmity or illegality in the order dated 22.02.2024 impugned before it and dismissed the Cr. Revision. 5. It is submitted by learned counsel for the petitioner relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corpn. Vs. NEPC India Ltd. And Ors. , reported in (2006) 6 SCC 736 that Illustration (f) of the Section 415 of the IPC, envisages that if 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 and A is not intending to repay it, A cheats and submits that as the petitioner, admits taking of money from the complainant but he is taking plea that he has repaid the money to the complainant, so this amounts to cheating. It is next submitted that in that the Hon’ble Supreme of India Court also relied upon its own judgment in the case of Hridaya Ranjan Prasad Verma and Ors. Vs. State of Bihar and Another reported in (2000) 4 SCC 168 and in para 15 therein, it has been observed by the Hon’ble Supreme Court of India that in determining the distinction between mere breach of contract and the offence of cheating, the intention of the accused at the time of inducement may be judged by his subsequent conduct but this subsequent conduct is not the sole test but 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 i.e. the time when the offence is said to have been committed. It is next submitted that in this case also, the subsequent conduct of the petitioner goes to show that he had the intention of cheating, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 6. Learned Spl. PP and learned counsel for the Opp. Party no. 2 on the other hand, vehemently oppose the prayer of the petitioner and submits that there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties and admittedly, a friendly loan taken by the opp. Party no. 2, which he did not repay. So the same will not amount to either the offence punishable under Section 420 of IPC or the offence punishable under Section 406 of IPC, hence, there being no illegality in the order dated 22.02.2024 passed by learned JMFC, Dhanbad or the order dated 22.07.2024 passed by learned Sessions Judge, Dhanbad in Cr. Revision no. 87 of 2024, this Criminal Miscellaneous Petition being without any merit, be dismissed. 7. Having heard the submissions made at the Bar and after going through materials available in the record, it is apparent to refer 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 11 and 13 of which read as under:- “11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with Section 406 IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that Respondent 2 knew the appellant and the attendant circumstances before lending the loan. Further, it is an admitted fact that in order to recover the aforesaid amount, Respondent 2, had instituted a summary civil suit which is still pending adjudication. The law clearly recognises a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.(Emphasis supplied) “13. Now coming to the charge under Section 415 punishable under Section 420 IPC. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.(Emphasis supplied) “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. 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.” Wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that a mere breach of promise, agreement or contract does not, ipso facto, constitute the offence of criminal breach of trust; the punishment for which has been provided under Section 406 of Indian Penal Code and therein it has also been held by the Hon’ble Supreme Court of India that it is a settled principle of law that 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. 8. Now coming to the facts of the case, the only allegation against the opp. Party no. 2 is that the opp. Party no. 2 took Rs. 6,00,000/- from the petitioner with the promise of alluring returns but he did not repay the amount as per the case of the complainant, but learned counsel for the complainant submits that not only the opp. Party no. Party no. 2 is that the opp. Party no. 2 took Rs. 6,00,000/- from the petitioner with the promise of alluring returns but he did not repay the amount as per the case of the complainant, but learned counsel for the complainant submits that not only the opp. Party no. 2 did not return the money but he is making a false assertion that he has paid back the entire amount to the complainant by way of cash. Be that as it may, as has rightly been observed by both the courts below, there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties. Further, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph no. 6 of which reads as under :- “6. Xxxxx 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) That, in order to constitute the offence of cheating, the accused must play the deception since the very inception and if the intention to cheat develops later on, the same will not amount to cheating. 9. Further, there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 10. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 10. So far as the offence punishable under Section 406 of IPC is concerned, in the absence of any clear case of entrustment and as there is absolutely no allegation against the petitioner of committing dishonest mis-appropriation of any entrusted money or the property, this Court has no hesitation in holding that even if the entire allegation against the petitioner are considered to be true in their entirety, still the same is insufficient to constitute the offence punishable under Section 406 of IPC. Moreover, it appears that it is a pure civil dispute with a cloak of criminal case, given by the complainant. Under such circumstances, this court do not find any illegality in the said order dated 22.02.2024 passed by learned JMFC, Dhanbad or in the order dated 22.07.2024 passed by learned Sessions Judge, Dhanbad in Cr. Revision no. 87 of 2024, warranting interference of this Court in exercise of power under Section 528 of BNSS. 11. Accordingly, this Criminal Miscellaneous Petition being without any merit is dismissed.