S. B. SINHA, J.

( 1 ) 1. Leave granted.

( 2 ) THIS appeal is directed against a judgment and order dated 4. 12. 2006 passed by the High Court of Gujarat at Ahmedabad dismissing an application filed by the appellants herein under Section 482 of the Code of criminal Procedure.

( 3 ) APPELLANT No. 1 is a partner of a partnership firm known as M/s. Premionics (hereinafter referred to as `the firm' for the sake of brevity ). Appellant No. 2 is an employee of the said firm. Respondent No. 2, the complainant is also a partnership firm. On or about 18. 10. 1997, it placed an order on the firm to manufacture and install a machine to purify and desalt the dyes of a particular quality and quantity with the firm. The total manufacturing cost of the said machine worked out to be at Rs. 17,96,488/- including excise duty and other incidental charges. Second respondent paid a sum of Rs. 3,00,000/- to the firm as advance and part payment of the said consideration. There has been a change in the specifications of the said machine purported to be on the request of the second respondent in terms whereof two extra modules thereto were provided. A revised offer was made. The said machine, although was to be manufactured and supplied within a period of three months, the same was not complied with.

( 4 ) A partner of the second respondent along with its technical engineer visited the site of the firm. Allegedly, it was found that the said machine did not conform to the specifications contained in the order placed with the firm. It refused to take the delivery thereof. To the said effect, the second respondent, by a letter dated 7. 4. 1998 called upon the firm to return the amount of advance, stating :

"please take a trial your Laboratory as discussed and concentrate between 25 to 30% and collect it in a new plastic drum after good cleaning. I am quite sure that this dye has got a molecular wt. around 400 and p/h in between 4. 5 to and I am hopeful that your R. O. Machine should work for this dye only and you have manufactured for another. This is not fair and if you cannot manufacture accordingly, please return our money. As per specific order an advance 3 lacs of rupees in October 1997, please send stamped receipt which we have not received so far. "

( 5 ) SECOND respondent by another letter dated 9. 7. 1999 called upon the firm to refund the said amount together with interest thereon, stating : "please send demand draft payable at Nadiad of Rs. 3,97,674/- as per accounts below :

Rs. 3,00,000

Rs. ? 22,500

Interest of 5 months.

Rs. 3,22,500

Rs. ? 58,050

Interest of 1998-99

Rs. 3,80,550

Rs. ? 17,124

Interest of 1999-200

(April, May & June)

Rs. 3,97,674

We hope you will do the needful immediately. " the firm, by its letter dated 14. 7. 1999, responded to the said letter of the Second respondent as under :"we are in receipt of your letter No. KPH/31/99-2000 dated 9. 7. 1999 and are surprised to note your content therein. As per your order we have manufactured the system and you had inspected the system also. We have been reminding you to take delivery of the system but no action had been taken from your end so far. We have blocked material worth more than fourteen lakhs for the last so many months. "

( 6 ) THEREAFTER, a criminal complaint was filed. The learned Chief Judicial Magistrate took cognizance of the offences against the appellants under Section 417, 420 read with Section 114 of the indian Penal Code. Summons were issued. Appellants filed an application for quashing of the said proceedings before the Gujarat High Court which by reason of the impugned judgment has been dismissed.

( 7 ) MR. Dayan Krishnan, learned counsel appearing on behalf of the appellant, would submit :

1. The allegations made in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence under Section 420 of the Indian Penal Code. 2. A breach of contract simpliciter does not constitute an offence under section 420 of the