Mere giving of a cheque and its non-payment does not by itself constitute an offence of cheating under Section 420 of the Indian Penal Code.

1. - Misc. Petition No. 27/90 has been preferred against the order dated 4.10.1989 passed by learned Addl. Munsif and Judicial Magistrate, No. 2, Bhilwara whereby on submission of challan it was ordered to be registered and cognizance was taken against the petitioner Under section 420 Indian Penal Code. The second petition no. 43/90 has been filed against the order dated 6.12.1989 ordering to frame charge Under section 420 Indian Penal Code on the same challan. It has been prayed by the petitioner that the cognizance taken against her for the offence Under section 420 Indian Penal Code and framing of the charge may be quashed.

2. Before dealing with the contentions raised by the learned counsel for the petitioner, the facts may be stated as under:-

3. Non-petitioner No. 2 Gajanand Mahadev Joshi, General Manager, Bhilwara Processors Ltd.; Bhilwara submitted a written report on 8.7.1989 at Police Station, Hamirgarh that the petitioner is the partner of M/s. Gopal Silk Mills, Gangapur and got its cloth processed in the non-petitioner No. 2's `Mill'. The petitioner did not make payment despite several reminders. In the last on several reminders, the petitioner gave a cheque No. 0432526 State Bank of Bikaner and Jaipur, Branch Bhilwara for Rs. 12,000/-on 14.1.1989. The cheque was sent for collection but it was dishonoured on 16.1.1989. The cheque was again sent for collection but payment was not made and it was returned on 24.5.1989. It was alleged that the petitioner dishonestly issued the cheque without any intention to make payment and committed the offence of cheating punishable Under section 420 Indian Penal Code. It was further alleged that the petitioner had never the intention from the very beginning to make payment and the cheque was issued with dishonest intention.

4. A case Under section 420 Indian Penal Code was registered at Police Station, Hamirgarh and investigation was undertaken. The Challan was submitted against the petitioner on 4.10.1989 and the impugned order was passed whereby the learned Addl. Munsif and Judicial Magistrate, No. 2, Bhilwara took cognizance for the offence Under section 420 Indian Penal Code ordering the registration of the case. The petitioner had filed an application on the same day that an offence Under section 420 Indian Penal Code is not at all made out and the case may not be registered against her. Thereafter the case was adjourned and charge Under section 420 Indian Penal Code was framed against the petitioner by the impugned order dated 6.12.1989.

5. I have heard learned counsel for the petitioner as well as learned counsel for non-petitioner No. 2 and learned Public Prosecutor it is argued on behalf of the petitioner that even if the entire material placed on record is taken on its face value it does not make out any offence against the petitioner and therefore no cognizance could have been taken and the charge also could not have been framed. The essential ingredients of Section 420 Indian Penal Code defined in Section 415 Indian Penal Code are not made out and no case is disclosed against the petitioner. There is no allegation that there was any inducement made to the complainant and in pursuant to that inducement the complainant delivered in anything or did or abstain from doing anything. A cheque is issued for payment and is subsequently dishonoured then this fact per se does not make out the offence Under section 420 Indian Penal Code because it does not disclose any dishonest intention at the time of issuing the cheque. It is further argued that the parties had regular business dealings and in the course of business, cheques were being issued for payment. In these circumstances if the cheque in question which was given for payment was dishonoured then no case is made out that the petitioner had any dishonest intention and committed the act of cheating. At the most it is contended that there is a dispute of civil nature between the parties and the non-petitioner No. 2 canno