Dishonest intention to deceive must exist at the time of initial transaction for cheating to be established.

This application under' S.401 and/or 482 Cr.P.C, is directed against the order dated 15-10-81 passed by Judicial Magistrate, Gauhati in Case No. 1666/81 and for quashing the proceeding pending in the court of the judicial Magistrate vide the aforesaid case.

2. The opposite party filed a complaint petition in the Court of the Chief Judicial Magistrate, Kamrup at Gauhati on 28-8-82, against the accused-petitioner alleging that the complainant is a partner of M/s. Mechfab Engg. Industries having its head office and place of business at Zoo Road, Gauhati and being a firm manufacturing steel articles. On 3-7-81 the accused-petitioner placed an order with the firm for supply of 27 Nos. of G.I. Tank valued at Rs. 64,500/- in pursuance of which the accused-petitioner paid an advance amourt of Rs. 30,000/- to the firm by a Bank cheque D/-3-7-81 which was duly encashed by the firm. Against the order of supply the complainant firm issued 27 Nos. of M. S.Moulds for P.S.C. Poles and one G.I. Tank by the bill D/-5-9-81. 14 Nos. of P.S.C. Poles and G. I. Tank were accepted by the accused-petitioner from the firm on 14-8-81. Then 13 nos. of M.S.Moulds. P.S.C. Poles were supplied to the accused-petitioner on 5-9-81 by the firm, which the accused-petitioner accepted. It is further alleged that a sum of Rs. 10,000/- was subsequently paid by the accused-petitioner to the complainant through a Bank Cheque which was also duly encashed. For the balance amount of the dues the accused-petitioner issued a Bank Cheque DT/- 7-9-81 against his account at the Central Bank of India, Fancy Bazar Branch, Gauhati. The complainant presented the cheque to the Bank on 7-9-81 but it was dishonoured by the Bank. This fact was brought to the notice of the accused-petitioner who however apologised for the firm having not received the payment of the cheque money. The accused-petitioner assured the complainant that the cheque would be honoured if presented to the Bank after a couple of days. The complainant again presented the cheque on 24-9-81 to the Bank but the Bank informed that the accused-petitioner by his letter D/-24-9-81 directed the Bank to stop payment to the complainant. On enquiry from Bank the complainant came to know that the accused-petitioner had only a sum of Rs. 700/- at his credit at the Bank. Thereafter the complainant demanded the sum of Rs. 24,500/- from the accused-petitioner on several occasions but the accused ultimately refused to make payment of the dues on 14-10-81. The allegation is therefore that the accused-petitioner with full knowledge that he had no money in the Bank to satisfy the dues of the complainant issued the cheque and thus had the intention to deceive the complainant. Thus the accused-petitioner dishonestly induced the complainant to deliver the articles with the intention to cheat the complainant.

3. The learned Chief Judicial Magistrate transferred the petition of complaint to the ; learned Judicial Magistrate who examined the complainant on oath and finding that a prima facie case u/s. 420 IPC was made out against the accused, issued, warrant of arrest against the accused with a bail of Rs. 5000/-.

4. On 17-11-81 the accused-petitioner appeared before the court and was enlarged on a bail of Rs. 3000A with one surety.

5. The case remains pending in the court of the learned Judicial Magistrate who has not yet started trial.

6. It is to be seen whether any offence of cheating has been made out as per the complaint. In his examination under section 200 Cr. P. C. the complainant (the partner representing the firm) disclosed that he met the accused-petitioner 2/4 days after the Bank had issued him a memo. Showing the reason of not honouring the bank cheque and that ultimately on 14-10-81 the accused informed him that he would not make any payment. Learned counsel for the petitioner pointed out that the facts of the complaint do not constitute the ingredients necessary for the offence of cheating in any form. S.415 IPC define