The central legal point established in the judgment is that the intention of the accused at the time of inducement is crucial in determining the offence of cheating, and mere breach of contract does not necessarily give rise to criminal prosecution for cheating.

Birendra Kumar, J.

Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel for Opposite Party No.2.

2. The petitioners are accused in complaint case No.1310(C) of 2012 brought by Opposite Party No.2 Akansha Enterprises. By the impugned order dated 07.05.2013 processes have been issued against the petitioners to face the trial for the offence under Section 420 of the Indian Penal Code as well as for the offence under Section 138 of the Negotiable Instruments Act.

3. The petitioners have challenged the impugned order in this application under Section 482 of the Cr.P.C. on the ground that the ingredients of offence under Section 420 of the Indian Penal Code is prima facie not made out as the dispute between the parties is contractual dispute of civil nature.

4. According to the complaint petition, the complainant is a business enterprise and doing his business as super distributor. The petitioners were retailers, They took different cosmetic goods of Rs.2,37,719/- from the complainant and issued five cheques for payment. Subsequently, the petitioners took cosmetics of Rs.2,63,072/- and again they issued cheques for payment. All the cheques bounced. In the circumstances, the complainant found himself cheated.

5. Contention of the petitioner is that each and every bouncing of the cheque does not show dishonest intention of the accused to cheat the complainant at the time of initial agreement between the parties. Different reasons may be for dishonour of the cheques. Moreover, the dispute has been settled, which would be evident from the paper at pages-20 and 21. The balance-sheet at page-20 shows that some goods were returned to the complainant company and some cheques were returned to the petitioners on receipt of the cash.

6. Contention of Opposite Party No.2 is that there is no denial that the cheques issued by the petitioners bounced due to insufficient fund, hence, the petitioner had dishonest intention in issuing the cheques knowing that the same are bound to be dishonoured.

7. The factual position of this case is clear that the petitioners have taken cosmetics for sale as retailers from the complainant and had issued cheques of payment. Some of the cheques were returned to the petitioners as the petitioners made payment in cash. Some amount was adjusted against the return of the cosmetics to the complainant by the petitioners and definitely some cheques have bounced.

8. In Md. Ibrahim V. The State of Bihar reported in 2009 (4) East Cr C 6 (SC) : 2009 (4) PLJR SC 99, the Hon’ble Apex Court in para-13 of the judgment examined the ingredients of offence of the cheating;

“13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived: (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).”

9. In Hridaya Ranjan Prasad Verma v. State of Bihar, reported in 2000 (2) East Cr C 634 (SC) : (2000) 4 SCC 168, the Apex Court observed in para-15 of the judgment as follows:

“15. In determining the question it has to be kep