The dishonour of a cheque does not per se constitute the offense of cheating, and the nature of the case should be considered before resorting to criminal action.

M.P. Varma, J.

The two petitioners Mrs., Veena Ram and Miss Anita Ram, Managing Director and Director, respectively, or the firm and company known as Sanjay Packaging Industries Private Limited, Dighaghat Patna, has presented the present petition for quashing the entire proceeding including the ORDER :, dated 8.7.81 passed by Shri C.M. Prasad, Sub-divisional Judicial Magistrate, Kishanganj, issuing processes again It them under section 420 of the Indian Penal Code.

2. The case in the court below was initiated upon a complaint presented by one Punam Chand Bothra, Manager of Saraogi Paper Mills, Kishanganj, Purnea, in which the fact, in brief, as stated are that the present petitioners in course of their business, sent one of their employees to place ORDER :s with the complainant for supply of certain quantity of papers and promised, to pay the price thereof through the bank draft to be issued form Patna. In response to the said ORDER :s, the complainant dispatched the goods and sent all connected papers concerning delivery through the said employee of the accused petitioners, who had come to place ORDER :s. All these happened on 22.1.81. It is, however, stated that the accused persons instead of sanding the draft as allegedly promised, sent an account payee cheque dated 7.2.1981 drawn on the State Bank of India, Pataliputra Branchat Patna Knowing full well that there Were no sufficient funds to their credit for, collection, of the cheque, money, and, in fact, the said cheque returned uncleared on 27.2.81. Later on, after some correspondence the same said cheque was presented on the Bank of Madurai, Patna, but on 22.4.81, the cheque again returned unclear red on the ground that no such amount was standing to the credit of the drawers.

3. On the facts stated aforesaid, the complainant got the cognizance ORDER :passed, by the court below against which the petitioners have come up to this court for quashing of the entire prosecution. Both the parties have been heard at length and I have been taken through the petition of complaint and also the statements of the complainant made on solemn affirmation, Apparently, the facts of the case do not present a happy picture as regards the bona fide of the action of the employee of the accused persons in dealing with the complaint’s firm, but the counsel for the petitioner has tried to persuade me to examine whether on true construction of the provisions contained in section 415 of the, Indian Penal Code relating to commission of an offence under section 420 of the same Code, the conviction could follow against the accused person on the present allegation, even if they are assumed to be correct and/or deemed to have been proved. To elaborate his submissions, the learned counsel further stated for consideration by this Court as to whether the offence charged could be disclosed, prima facei, by the allegations made in the petition of complaint. The counsel has submitted that taking the entire allegations against the accused as correct, what emanates therefrom is the existence of a transaction and the same is an indent for supply of goods with a promise to pay in future be it a bank draft or any other made of payment. To my mind, it become a simple case of sale of goods on credit with the conditions as stipulated and alleged in the petition of complaint. dishonour of a cheque issued subsequently which was accepted by the complainant for presentation in the Bank, to my mind, will mean nothing except failure on the part of the petitioners to pay the price for the supply of goods by tile latter for which the parties entered into a contract.

4. There is, therefore, force in the sub minions made on behalf of the petitioners. The cheque which was issued subsequent to the transaction has nothing to do with the mind of the complainant or at any rate the cheque did not at all act as an inducement to the complainant for parting with the goods nor did the same cause any deception at the relevant time