JUDGMENT

L. MOHAPATRA, J. — This application under Section 482, Cr.P.C. has been filed to quash the proceeding, I.C.C. No. 28/98, pending in the Court of the learned J.M.F.C. (Rural), Cuttack.

2. Case of the complainant-opposite party is that it is a partnership firm manufacturing cattle feed at Village Kairapari under the Tangi Police Station and Prakash Kumar Rout is the Managing Partner of the firm. After obtaining loans from differ¬ent financial institutions the firm decided to contact with the manufacture of Plant and Machinery for commissioning the Cattle Feed Plant. Accused-petitioner company which was also involved in manufacturing cattle feed plant was contacted by the complainant and the complainant was introduced to believe that the accused-peti¬tioner firm is a pioneer organisation in India in manufacturing cattle feed pellet making plant. At the time of visit of the Managing Partner, the accused-petitioner also handed over quota¬tion for supply of the plant and machinery. The Managing Partner of the complainant-firm after consultation with other partners decided to purchase plant and machinery from the accused-peti¬tioner firm and placed order on 27.1.96 along with advance of Rs. 1,50,000/- by way of Demand Draft. As per quotation, the peti¬tioner was to supply plant and machinery as well as erection and commission of the plant at the site of the complainant and hand¬ over the fully operational manufacturing unit before receiving the full and final payment. Before receiving the first lot of machinery the complainant was made to believe that the plant and machinery will be despatched and sent two Demand Drafts for an amount of Rs. 1,32,000/- and another for Rs. 68,000/-. All the amount sent by Demand Drafts was received by the accused-petition¬er. After payment of almost 50% of the amount, the complainant-opposite party waited for supply of plant and machinery which was to be delivered within two months after receipt of the advance, but the machineries were not supplied. Only on 26.9.96 the ac¬cused-petitioner firm despatched the first lot of machinery along with a bill of Rs. 4,65,000/- and the same was received by the complainant in the first week of October, 1996. The complainant thereafter sent Rs. 2,50,000/- on 7.10.1996 for supply of the plant and machinery, but the same were not supplied. Only on 5.2.97 some more equipments was sent by the road which the com¬plainant was duly received. Thereafter, the accused-petitioner did not take any steps for erection and commissioning of the machinery for a considerable length of time and after several correspondences one Mr. M. D. Jagtap was sent to make the plant operational. Mr. M. D. Jagtap tried his best but failed the plant operational and returned back without success.

Case of the complainant is that though he has paid 80% of the total amount, only part of the machineries were supplied and the responsibility of erection and commissioning of plant having not being done, a clear case of cheating is made out.

3. In the application filed before this Court under Sec¬tion 482, Cr.P.C. it has not been disputed that the plant and machineries were supplied by the accused-petitioner and that they have received the amount by demand drafts. On the other hand, due to some difficulties the plant and machineries could not be sup¬plied in time. Shri Sahu, learned counsel for the petitioner challenged the initiation of the complaint case only on one ground. According to him, since there was a contract between the two parties and it is alleged that there has been a breach of contract, remedy open for the complainant to is to go for a civil suit and filing of a criminal case amounts to gross abuse of process. The dispute being civil nature, complainant case is not maintainable.

4. Before entering into the question as to whether it is a case of breach of contract only or there is evidence of cheat¬ing,it is necessary to look into the allegations made in the complaint. From the facts