Mere dishonour of a cheque without any evidence of deception from the beginning does not constitute the offence of cheating under Section 420 of the Indian Penal Code.

Bhuvaneshwar Prasad, J.

1. This application under sec. 482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 1-9-1987 passed by Shri N.K. Sinha, Sub-Divisional Judicial Magistrate, Ranchi taking cognizance of the offence against the petitioners under Secs. 418/420 of the Indian Penal Code in complaint Case No. 40/87:

2. Opposite Party No.2 is the complainant. He is Manager of Ranchi Mineral Processing Industries, Lake Avenue, Ranchi. He had supplied steam coal worth Rs, 45,000 to the petitioners and it was agreed that the payment of the bills will be made full in one lump-sum. Since then Opposite Party No. 2 approached the petitioners for the payment of the dues and ultimately on 20-4-1987 petitioner No. 1 had issued a cheque drawn on Bank of India, Jhumpura Branch, District Keonjhar (Orissa) for a sum of Rs. 20,000 towards the dues. When this cheque was presented to this branch of Bank of India through Punjab National Bank, in which the Opposite Party No.2 had account, it was returned back with the endorsement "not arranged for". On enquiry Opposite Party No.2 could learn that on the day on which this cheque was issued the petitioner had no money in the Account in the aforesaid Bank. Thus, Opposite Party No.2 alleged that he was cheated. It was on this complaint petition that the cognizance was taken on 1 -9-1987.

3. In this petition the petitioners have contended that the allegations are vague in as much as it has not been disclosed when the coal in question was supplied or when the cheque was presented for payment. In the complaint petition it has also not been disclosed which of the two petitioners had issued the cheques, though only the date of occurrence has been shown to be 29-4-1983. The petitioners have contended that they have got number of document to show that even after 29-4-1983 they had made payments of Opposite Party No.2 on several dates upto 7.10-1986. It was further contended that the dispute between the parties, if any, can at best said to be a dispute of civil nature. There is no element of deception from the start of this contract. Hence, no offence under Sec. 420 of the Indian Penal Code is made out.

4. Opposite Party No.2 was noticed and heard in the matter. Before proceeding further I would like to examine the complaint petition Paragrah 3 of the complaint petition shows that the complainant (Opposite Party No 2) had sent the stamp coal to the accused (the petitioners) on the condition that they would make the payment of the entire bill at a time. From this it would appear that the contract between the parties was that the coal was to be supplied to the petitioners on credit and the payment was to be made subsequently. It further appears from the complaint petition that though a cheque for Rs. 20,000 was issued by the petitioners the same could not be honoured. It further appears from the complaint petition that the petitioners by making a false representation regarding their further conduct has obtained the Coal from the Opposite Party No. 2. From these false it would appear that the payment of the price of the coal was not a condition precedent to the sale of the coal so at the initial stage of the case it cannot be said with an amount of certainty that the petitioners had intention to cheat. It may be mentioned here that though in Paragraphs 7 and 8 of the complaint petition it has been stated that the accused had deceived the complainant fraudulently and dishonestly by including the complainant to supply coal, the element of deception has to be deduced from the conduct of the parties notwithstanding any such allegation made it) the complaint petition.

5. Shri T.R. Bajaj the learned Advocate appearing on behalf of the petitioners has submitted that the coal was already delivered before the- issue of cheques. On this basis he has contended that the terms of the contract between the parties was that the payment was to be made subsequently in one lu