JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. Instant petition has been filed for quashing the entire criminal proceeding along with order taking cognizance dated 27.03.2021 whereby cognizance has been taken for the offence under Sections 406, 420, 506, 504 of the Penal Code, 1860 in connection with Jamtara P.S. Case No. 173 of 2019 corresponding to G.R. No. 201 of 2021.

2. The prosecution case, in brief, is that informant was the Director of R.S.S.G. Consortium Pvt. Ltd. which had entered into an agreement with Bajrangbali Transport Agency and jointly awarded contract on 23.12.2015 for loading of coal from Mahanadi Coal Fields Ltd. to the tipper. The work place was situated under District Sundergarh, Orissa and in order to facilitate the execution of work, the informant entered with Prakash Chandra Mohanty (petitioner) in memorandum of understanding to monitor and supervise the work. He was also authorized to operate BBTA/RCPL(JV) current account in SBI Jamtara by agreement dated 16.03.2016. Thereafter he started supervising the work of informant.

3. It is alleged that the petitioner/accused on different dates, withdrew Rs. 10,85,592/- during the period 22.03.2018 to 11.09.2018. As a result, the work was adversely affected. Later, Rs. 2,30,000/- was paid to him but neither the work was completed nor amount was refunded. It is also alleged that the work was left midway half finished.

4. It is submitted by the learned counsel on behalf of petitioner that even assuming the allegations as made in the FIR is accepted to be true, the offence of cheating or criminal breach of trust will not be made out. Once it is admitted that work had been partly completed, it cannot be said that there was an intention of deception from the inception. It is further argued that the present case has been filed to wreak vengeance and is counter to Sundargarh P.S. Case No. 61 of 2019 registered on the basis of Complaint Case No. 07 of 2019 filed by the petitioner. According to the case of the petitioner, it was the informant (O.P. No. 2) who had withdrawn Rs. 24,00,000/- without the consent and signature of this petitioner. After the petitioner instituted police case, the present case has been filed after a long delay in counter to the case filed by the petitioner. The payment that has been received by the petitioner, has been utilised for payment to its employee's salary and the employer's share in the provident fund account. The petitioner has already filed Civil Suit No. 270/2017 before the Civil Judge (Sr. Div.), Sundargarh against the informant.

5. Dispute is commercial in nature between private individuals for which the arbitral proceeding is pending before the sole Arbitrator-Mainak Bose.

6. It is further argued that the Annexure-7 which is letter issued by Mahanadi Coal Limited to this petitioner, obtained under RTI Act, knocks down the foundation of the prosecution case that the work was not completed by the petitioner. As per this letter of Project Officer, MCL, the work was commenced on 01.01.2016 and has been completed on 03.07.2019 as per the letter. The informant (O.P. No. 2) had moved the High Court of Orissa in W.P. (C) No. 21989 of 2020 which had been filed against the order of MCL dated 14.07.2020 by which payment of the petitioner was blocked. On the basis of instruction received from the I.O. in Town Police Case No. 61 of 2019, the payment was later released in favour of the petitioner/present informant of that case. No further direction was issued since the amount was already paid to the informant. Lastly, it is submitted that as per Clause 4 of the agreement which was signed by both sides that any dispute between the parties was to be resolved by arbitration. It is submitted that the dispute is commercial in nature with an arbitration Clause and the matter is pending before the sole Arbitrator. The continuation of the present criminal proceeding is an abuse of process of Court in view of ratio decided in the case of Mitesh Kumar J. Sha v. St