The burden of proof rests with the complainant to establish the elements of the prosecution case, and disputed questions of fact should be proved at trial. The court's power to quash a criminal proceeding should be exercised sparingly and in rare cases.

This petition under S. 482, Cr.P.C. is to quash Annexure A-1 complaint. Petitioner is the accused in C.C. 368 of 1992 on the file of the Judicial First Class Magistrate's Court, Nedungandom. Annexure A-1 complaint was filed by the first respondent under S. 138 of the Negotiable Instruments Act (for short 'the Act') and S. 420 of the I.P.C. The allegation was that the petitioner borrowed Rs. 30,000/- on 8-5-1992 from the first respondent promising to re-pay the same on 13-5-1992 and issued a cheque with date 13-5-1992. The cheque when presented was returned unpaid with the endorsement "funds insufficient". First respondent further alleged that only then he could know that he was cheated and deceived with the intention of not paying the amount. It is further alleged that, a notice demanding the amount was issued within time; but was returned without acceptance by the petitioner with the endorsement "unclaimed". Petitioner alleges that the cheque itself is a forged one and that no offence under S. 420, I.P.C. or S. 138 of the Act is committed; therefore, the complaint is liable to be quashed.

2. It was contended by the learned counsel for the petitioner that, the petitioner's husband had sold a bus to the first respondent and in that transaction, there was some difference of opinion between them that the first respondent managed to get a cheque leaf from the petitioner's house and he forged the signature of the petitioner. In support of the said argument, the learned counsel for the petitioner relied on Annexure A-3 agreement purported to have entered into by the first respondent. According to the learned counsel, a breach of agreement or a dishonour of a post-dated cheque cannot constitute an offence under S. 420, I.P.C. The remedy, if at all, according to the learned counsel is to file a suit for recovery of the amount. Then, it was also contended that, since no notice was served or received by the petitioner, the offence under S. 138 of the Act also is not made out. That being the position according to him the complaint and the proceedings have to be quashed.

3. On the other hand, learned counsel for the first respondent contended that the question as to the genuineness of the cheque is a matter to be decided 666 at the trial and that the notice since was returned "un-claimed" on account of the default of the petitioner, would constitute service and the same in the circumstance has to be treated as receipt of notice by the petitioner.

4. Learned counsel for the petitioner relied on page 293 of Law of Dishonour of Cheques by S. K. Awasthi-Second Edition in support of his contention that, when a post-dated cheque is dishonoured no offence of cheating in committed and the remedy of the complainant lies in a civil court for breach of contract. It is true, that a breach of contract simpliciter cannot give rise to a criminal prosecution, "cheating" depends upon the intention of the accused at the time of the alleged inducement.

5. Deception under S. 415, I.P.C. should be by express words or visible representation as the same may be practised by conduct or implied in the transaction itself. The question whether there was an intention to deceive is a matter to be inferred from the proved circumstances. In the context of S. 482, Cr.P.C. the factor to be looked into is the allegation in the complaint. In paragraph 2 of the complaint the first respondent alleges that, when the petitioner passed the cheque to him, it was represented that, there would be no difficulty in collecting the amount when the same is presented on 13-5-1992, and that he believed the said representation; and in paragraph 4 it is alleged that, only when the cheque was dishonoured he realised the deception. As regards the contention that, a combined ground under S. 138 of the Act and S. 420, I.P.C. cannot be maintained, it has to be noted that a single transaction could spell out more than one offence and in that event such offences can be the basis of a c