By this application under Section 482 of the Code of Criminal Procedure, 1973 (for short ' the Code' ), the applicants-original accused, seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of Criminal Case No. 1383 of 2002, pending in the Court of the learned Metropolitan Magistrate, Ahmedabad, Court No. 16.

2. The facts giving rise to this application may be summarized as under:-

2.1 The respondent No. 2-original complainant, filed a private complaint in the Court of the learned Metropolitan, Magistrate, Ahmedabad, against the applicants herein, of the offence punishable under Sections 420 and 406 of the IPC. The same was registered as Criminal Case No. 1383 of 2002. After recording the verification of the complainant on oath, the learned Metropolitan Magistrate, Court No. 16, Ahmedabad, thought fit to issue process under Section 204 of the Code, for the offence under Section 406 of the IPC.

2.2 It is the case of the complainant that the applicants herein, who are Partners of a Partnership firm running in the name of Mark Enterprise had borrowed in all a sum of Rs. 1,20,000/- from the complainant for the purpose of business. According to the complainant, he had issued three cheques (1) Cheque No. 373185 of Rs. 50,000/- dated 28.4.2002, (2) Cheque No. 376318 of Rs. 50,000/- dated 6.5.2000 and (3) Cheque No. 376359 dated 30.5.2000 in favour of the applicants. It is his case that after lending the money to the applicants, they refused to repay the borrowed amount when the same was demanded by the complainant. It is alleged in the complaint that the intention of the applicants was to cheat the complainant from the inception, and the non-payment of the borrowed sum, constitutes an offence of cheating punishable under Section 420 of the IPC and criminal breach of trust punishable under Section 406 of the IPC.

3. As noted above, the learned Metropolitan Magistrate has issued process only of the offence punishable under Section 406 of the IPC and not Section 420 of the IPC.

4. Mr. D. K. Puj, the learned advocate appearing on behalf of the applicants submitted that the complaint fails to disclose commission of any cognizable offence. None of the ingredients to constitute the offence under Section 406 of the IPC are spelt out. Even if the entire case of the complainant is accepted to be true, then also the dispute between the parties herein is essentially a civil dispute. Mr. Puj submitted that the non-payment of the borrowed amount by itself does not amount to commission of an offence of cheating or criminal breach of trust.

In such circumstances referred to above, it is prayed that there being merit in this application, the same be allowed.

5. It appears that although the respondent No.2 was served with the notice issued by this Court long time back, yet he has chosen not to appear and oppose this application either in person or through an advocate.

6. Having heard the learned counsel appearing for the applicants and having gone through the materials on record, the only question that falls for my consideration is whether the complaint deserves to be quashed.

7. Turning to the facts of the case, there is nothing either in the complaint and/or in the sworn statement of the complainant that any property was entrusted to any of the applicants at all or the applicants had any domain over any of the properties of the respondent No.2, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405, IPC, punishable under Section 406, IPC. Taking the complaint and the statement of the complainant as they are, it cannot be said even prima facie that the applicants committed any offence punishable under Section 406, IPC, since the ingredients of that offence were not satisfied. Hence, the learned Magistrate committed a serious error in issuing process against the applicants for the offence under Section 406, IPC.

8. Assuming for the moment that the applicants have failed to r