Raghuvendra S. Rathore, J.

The case of the prosecution against the accused petitioner is that the complainant Rajesh Rathi had lodged a report at police station Brahmpuri, Jaipur that he is doing the business in cloths and shoes. The office for this purpose had been opened by the complainant in a plot at Ramgarh Mod. Jaipur. On 30.11.2014, the accused went to the office of the complainant and expressed her desire to purchase shoes. In consideration of the goods purchased, worth Rs.1,05,000/-, she had given two cheques no. 000102 dated 01.01.2015 of Bank of Baroda and 000101 dated 24.12.2014 also of Bank of Baroda Branch Ramganj, Ajmer. When the said cheques were o presented to the Bank for payment, the same were dishonored. On the said report, a criminal case for the offences under sections 406, 420, 504, and 120 - B IPC was registered against the accused and the investigation commenced.

2. It has been argued by the counsel for the petitioner that there was business transaction between the parties. The aforesaid cheques had been issued by the accused in respect of payment of goods. The cheques which were issued to the complainant had not been returned by him even when a notice was issued by the accused to the complainant, through his counsel.

3. Learned public prosecutor has opposed the bail application and submitted that the instant case is not a one which has given rise to the civil liability but that of criminal liability, as the accused since the beginning had 1 never intended to pay the amount for the goods purchased by him.

4. After hearing the learned counsels for the parties, the court has carefully perused the material on record, including the first information report.

5. It is to be noted that against the present accused one another criminal case of similar nature, in respect of issuance of the cheque the 1 amount of which was never paid, had also been registered. At that time, the court had considered it to be a usual case of dispute of civil nature and the accused was considered to be entitled for grant of relief of bail. But now on account of repetition of similar offence which appears to have been the modus operandi of the accused petitioner while taking away the goods that this court had thoroughly looked into the facts and circumstances of the case; purchase of goods by the accused for which he did not intend the pay the price and the cheques given at the time of taking the goods which were never to be encashed for paying the consideration to complaint.

6. A transaction may give rise to civil or a criminal liability. In a given case the dividing line between the two liabilities may be very thin but the distinction is real and cannot be ignored.

7. Mens rea precedes the act. When the act is coupled with the pre - existing mens rea, a crime is properly constituted. Where there is no pre - existing mens rea and there is subsequent inability to perform the promise, only civil liability is incurred. A distinction must be drawn between a case where a post - dated cheque is given to discharge the existing liability and a case where it is issued against delivery of goods, property or cash with an assurance implied or otherwise that it will be met on being presented to the bank on the due date and in due course. In the first case the failure to ' provide the balance is merely a breach of promise whereas in the later it may have different consequences.

It is the intention of the drawer at the time when the cheque is issued which constitutes the material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal 1 course, it would be prima facie proof of the intention to cheat as is clear from Illustration (f) to Section 415 of the IPC which is as under:

"A intentionally deceives into a belief that A means to repay any money that may lend to him and thereby dishonestly induces to lend him money. A not intending to repay it. A cheats."

8. A plain reading of