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 the BNSS, 2023 with the prayer to quash and set aside the entire criminal proceeding arising out of Garhwa Nagar P.S. Case No.76 of 2026 registered for the offences punishable under Sections 316(5), 318(4) & 308(3) of the BNS, 2023. 3. The brief fact of the case is that the informant entered into an agreement with the company in the name and style of K Sera Sera Box Office Pvt. Ltd. on 17.08.2023 represented by its authorized signatory for purchasing articles from the said company for running a cinema hall. The petitioner transferred Rs.28,30,000/- to the account of the said company and it was assured that the said company will provide a license for starting the cinema hall but the articles as per list was not supplied by the company of the petitioner and the company did not return the money rather threatened the informant of dire consequences, if he demands back the money. 4. On the basis of the written report submitted by the informant, the police registered Garhwa Nagar P.S. Case No.76 of 2026 and took up investigation of the case. 5. Learned counsel for the petitioner submits that the investigation of the case is still going on and charge sheet has not yet been submitted. 6. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sharad Kumar Sanghi vs. Sangita Rane reported in (2015) 12 SCC 781 and submits that wherein para-11, it has been observed by the Hon’ble Supreme Court of India that principally if the allegations are against the company, when there is no allegation against the Managing Director, when the company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. It is next submitted that in this case, the BNS does not have any provision for any vicarious liability and there is no allegation against the petitioner that the petitioner did any act of omission or commission on behalf of the said company, therefore the criminal proceeding ought not proceed against the petitioner. 7. It is next submitted that in this case, the BNS does not have any provision for any vicarious liability and there is no allegation against the petitioner that the petitioner did any act of omission or commission on behalf of the said company, therefore the criminal proceeding ought not proceed against the petitioner. 7. Learned counsel for the petitioner next drawing attention of this Court to Annexure-2 which is Form No.DIR-12 submits that the same goes to show that the petitioner has resigned from the company with effect from 08.07.2023 and the e-form filing date intimating the resignation is 21.07.2023 and as admittedly the agreement has been entered into by the informant much thereafter on 17.08.2023, hence, it is submitted that the petitioner ought not be held responsible for the acts of the company if any; which was took place after resignation of the petitioner from the company concerned. 8. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Usha Chakraborty and Another vs. State of West Bengal & Another reported in (2023) 15 SCC 135 , and submit that therein the Hon’ble Supreme Court of India has held that when the dispute between the parties is basically a dispute of civil nature and the informant has already approached the jurisdictional civil court by instituting a civil suit which is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceeding, as a weapon of harassment and quashed the same. 9. 9. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Rukmini Narvekar vs. Vijaya Satardekar & Others reported in (2008) 14 SCC 1 and submits that therein the Hon’ble Supreme Court of India has held that while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge, in view of the principles of law settled by the Hon’ble Supreme Court of India in the case of State of Orissa vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases, the defence material can be looked into by the court at the time of framing of the charges or taking cognizance and submits that in this case the unimpeachable documents filed by the petitioner regarding the resignation of the petitioner from the company concerned can be seen, which renders the prosecution case to be a preposterous one. 10. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360 paragraph-13 of which reads as under:- “13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court.” (Emphasis supplied) wherein the Hon’ble Supreme Court of India has observed that when the entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid; such proceedings be nipped in the bud by the criminal courts. It was further observed in that case that the criminal courts are not meant to be used for settling scores or pressurize parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court. 11. Learned counsel for the petitioner further relies 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) wherein it was held 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 will not amount to cheating. 12. Learned counsel for the petitioner further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , para 10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [ (2003) 3 SCC 11 : 2003 SCC (Cri) 703])” (emphasis supplied) wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance, the same would not constitute the offence of cheating and similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. 13. Learned counsel for the petitioner further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311 , para-12 of which reads as under:- “12.xxxx In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied) that the amount paid towards consideration cannot be said to have been entrusted with the accused person by the complainant and merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. 14. Learned counsel for the petitioner lastly relies upon the judgment of this Court in the case of Sumita Biswas @ Sumita & Another vs. The State of Jharkhand & Others reported in 2025: JHHC :6983 and submits that therein in para-10, 12 & 14 of which reads as under:- 10. 14. Learned counsel for the petitioner lastly relies upon the judgment of this Court in the case of Sumita Biswas @ Sumita & Another vs. The State of Jharkhand & Others reported in 2025: JHHC :6983 and submits that therein in para-10, 12 & 14 of which reads as under:- 10. Having heard the submissions made at the Bar and after carefully going through the materials in the record, so far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are:- (i) There must be an entrustment; (ii) There must be misappropriation or conversion to one’s own use or use in violation of a legal direction of any legal contract, as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan vs. Central Bureau of Investigation reported in (2003) 3 SCC 641 . 12. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, the essential ingredient to constitute the said offence are:- (i) There should be fraudulent or dishonest inducement of person by deceiving him, (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 so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and (iii) Such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property, as has been held in the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr, reported in (2009) 8 SCC 751 . 14. So far as the offence punishable under Section 385 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are:- (i) The accused put or attempted to put any person in fear of injury and (ii) He did so to commit extortion. wherein this Court has discussed the ingredients of the offences punishable under Section 406, 420 & 385 of the Indian Penal Code which corresponds to Section 316(2), 318(4) & 308(3) of the BNS, 2023. 15. Learned counsel for the petitioner then submits that the allegation against the petitioner is false and vague. wherein this Court has discussed the ingredients of the offences punishable under Section 406, 420 & 385 of the Indian Penal Code which corresponds to Section 316(2), 318(4) & 308(3) of the BNS, 2023. 15. Learned counsel for the petitioner then submits that the allegation against the petitioner is false and vague. It is next submitted that admittedly, erstwhile company of the petitioner supplied the substantial amount of articles required by the petitioner. It is next submitted that the informant has nowhere stated as to which particular articles was not supplied by the erstwhile company of the petitioner and otherwise also the offence in respect of which the FIR is registered is not made out against the petitioner, hence, the prayer as prayed for by the petitioner in this Cr.M.P., be allowed. 16. Learned P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that the petitioner is a habitual offender being involved in the Haldwani P.S. Case No.13 of 2022 registered for the offence punishable under Section 420 of the Indian Penal Code as also the Didarganj P.S. Case No.206 of 2023 in the District of Patna, Bihar. Learned P.P. next drawing attention of this Court to page-61 of the brief which is a communication letter from Director CBI to the AIGCC of the CBI regarding a complaint made by Karishma Mishra, the former employee of K Sera Sera Box Office Pvt. Ltd. of running an international network involved in piracy, hawala operations, and terror financing. It is next submitted that the petitioner is also involved in Amroha P.S. Case No.108 of 2023 registered on 23.02.2023, hence, it is submitted that the petitioner being a habitual criminal being involved in several cases. It is further submitted that if the allegation made in the FIR are considered to be true in their entirety, then all the offences in respect of which the learned Magistrate has found prima facie case is made out. It is lastly submitted that this Cr.M.P., being without any merit, be dismissed. 17. It is further submitted that if the allegation made in the FIR are considered to be true in their entirety, then all the offences in respect of which the learned Magistrate has found prima facie case is made out. It is lastly submitted that this Cr.M.P., being without any merit, be dismissed. 17. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the undisputed facts remains that the petitioner has resigned from the company namely K Sera Sera Box Office Pvt. Ltd. and the concerned form has been filed before the registrar of companies on 21.07.2023. The undisputed facts remains that the agreement between the parties was entered into on 17.08.2023 after the petitioner resigned from the post of Director of the said company and the petitioner is not the signatory on behalf of the company. There is no allegation of any personal acts of omission or commission having been committed by the informant. All the allegations are only against the company namely K Sera Sera Box Office Pvt. Ltd. and there is no allegation of entrustment of any property to the petitioner rather the same is against the company. There is no allegation against the petitioner of playing deception since the beginning of the transaction, at any point of time. 18. So far as the allegation of extortion is concerned, there is no allegation against the petitioner of putting the informant or anyone else in fear of injury and in the absence of the same, the offence of extortion cannot be made out even if the entire allegations made against the petitioner are considered to be true in their entirety. There is no allegation against the petitioner of coming face to face with the informant, so there is no rhyme or reason why the petitioner will indulge in any extortion when by the time, the informant entered into the agreement with the company concerned, the petitioner was no longer associated with the company in any capacity. The admitted case of the informant is that the certain articles has been supplied by the company. 19. In view of the settled principle of law that the offence of cheating will not be made out unless accused person plays deception since the very inception. 20. The admitted case of the informant is that the certain articles has been supplied by the company. 19. In view of the settled principle of law that the offence of cheating will not be made out unless accused person plays deception since the very inception. 20. 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 318(4) of the BNS, 2023 is not made out. 21. So far as the offence punishable under Section 316(5) of the BNSS, 2023, is concerned, there is no allegation of any entrustment of any property to the petitioner rather the entrustment is to the company of the petitioner and no specific role of the petitioner is attributed for being involved in any act of omission or commission on behalf of the company rather the undisputed facts remains that the petitioner was no way associated with the K Sera Sera Box Office Pvt. Ltd. on or after 21.07.2023; that is by the time, the cause of action arose. 22. So far as the three FIRs are concerned, they relate to the period when the petitioner was the Managing Director of the companies. 23. 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 316(5) of the BNS, 2023 is not made out. 24. So far as the offence punishable under Section 308(3) of the BNS, 2023 is concerned, the same appears to be more of an ornamental nature and the allegations regarding the same does not inspire confidence. 25. Under such circumstances, this Court is of the considered view that even if the entire allegations against the petitioner are considered to be true in their entirety, still none of the offences in respect of which the FIR has been registered is made out against the petitioner. 25. Under such circumstances, this Court is of the considered view that even if the entire allegations against the petitioner are considered to be true in their entirety, still none of the offences in respect of which the FIR has been registered is made out against the petitioner. Therefore, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding arising out of Garhwa Nagar P.S. Case No.76 of 2026 registered for the offences punishable under Sections 316(5), 318(4) & 308(3) of the BNS, 2023, be quashed and set aside. 26. Accordingly, the entire criminal proceeding arising out of Garhwa Nagar P.S. Case No.76 of 2026 registered for the offences punishable under Sections 316(5), 318(4) & 308(3) of the BNS, 2023, is quashed and set aside qua the petitioner. 27. In the result, this Cr.M.P., stands allowed.