( 1 ) THE aforesaid two Criminal Misc. Applications have been filed under S. 482 of the Criminal Procedure Code for quashing and setting aside the order passed by the learned Metropolitan Magistrate, Court No. 5, Ahmedabad, in Criminal Case No. 168/86, issuing process against the petitioner in both the aforesaid cases.

( 2 ) IT may he mentioned that the respondent No. 1 in both the cases have filed the aforesaid criminal case by filing a complaint against the petitioners for the offences under S. 420, 420 read with Sec. 34, 420 read with 114 and 1208 read with 420 of IPC as well as for the offences under S. 418, 418 read with 34, 418 read with 114 and 120b of IPC. The learned Magistrate has passed the said order after recording the statement on oath of the complainant on 17-2-86 for issuing bailable warrants of the amount of Rs. 1,000/- for the offences under S. 418, 420 read with Sec. 34 of the IPC against the petitioners.

( 3 ) IT is contended on behalf of the petitioners that assuming the allegations made in the complaint to be correct the offence of cheating is not made out and that there are no allegations with regard to the required dishonest or fraudulent intention on the part of the present petitioners. It is further contended on behalf of the petitioners that mere failure to fulfil the promise subsequently would at the most be failure to perform the contract or it would be a breach of the contract, but it is not the offence of cheating either under Sec. 418 or Sec. 420 of the IPC.

( 4 ) IT is also contended on behalf of the petitioners that there are no allegations on the point of agreement and in absence of such averment or allegation the offence of conspiracy to cheat cannot be constituted and the learned Magistrate has, therefore, rightly not issued the process for the alleged offence under Sec. 120b read with Sec. 420 of the IPC.

( 5 ) IN support of the above contentions the learned Advocates appearing for the petitioners have cited before us the judgment of the Supreme Court in the case of Lennart Schussler v. Director of Enforcement, AIR 1970 SC 549 wherein it is held that for the offence of conspiracy there should be an agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. It further held in the said case that there must be a meeting of minds in doing of the illegal act or the doing of a legal act by illegal means.

( 6 ) THE learned Advocates for the petitioners have also cited the judgement in the case of the State of Kerala v. A. Parsad Pillai, 1972 Cri LJ 1243 : (AIR 1973 SC 326) wherein the Supreme Court has held that for holding a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.

( 7 ) WHILE examining as to whether the offence of Sec. 420 of IPC is made out or not, in the case of Hari Prasad Chamaria v. Bishun Kumar Surekha, AIR 1974 SC 301, the Supreme Court has observed as under :". . . THERE was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money nor did the complaint indicate that the respondents had induced the appellant to pay them the amount parted with. . . . "in the facts and circumstances of the said case the Supreme Court has held that mere fact that they did not abide by their commitment as to starting of the business in complainants name as agreed would not fasten them with criminal liability, and accordingly dismissed the appeal filed by the original complainant against the order of the Patna High Cour