Mere dishonor of a cheque, without the necessary intent to deceive and the fulfillment of the essential ingredients of Section 415 IPC, does not constitute the offense of cheating under Section 420 IPC.

D. P. MOHAPATRA, J.

( 1 ) IN these two applications filed u/s. 482, Cr. P. C. (for short 'cr. P. C. ') the parties are the same and the facts and circumstances are similar and identical question of law is raised. As such, with the consent of the learned counsel for the parties the cases were heard together and they are disposed of by this common judgment. While Criminal Misc. Case No. 247 of 1990 relates to I. C. C. Case No. 7 of 1989 of the Court of the Sub-divisional Judl. Magistrate (S. D. J. M.) Bhubaneswar, Criminal Misc. Case No. 248 of 1990 relates to I. C. C. Case No. 6 of 1989 of the same court.

( 2 ) IN these applications challenge is raised to the orders passed by the learned S. D. J. M. taking cognizance of the offence u/s. 420, I. P. C. (for short ' I. P. C. ') against the petitioner. The petitions of complaint filed by the opposite party before the learned S. D. J. M. were registered as I. C. C. Case Nos. 6 and 7 of 1989. Since the facts in both the eases are similar for the sake of brevity the facts in I. C. C. Case No. 7 of 1989 may be referred to. The gist of the allegations made therein was that the complainant was working under M/s. Konark Television Limited, a Government of Orissa Enterprise engaged in manufacture of television sets having its Head Office and Factory at Industrial Estate, Bhubaneswar. The company was marketing its products by appointing dealers throughout India. The petitioner (accused) is one of the partners of M/s. Glory Watch and Electronics having its office at 1, Chowaranghee place, Calcutta 13. The accused was lifting television sets from the complainant-Company on payment of cash as well as cheques at different points of time. In the months of April and June, 1987, the accused placed orders for supply of different varieties of television sets and accordingly the complainant supplied television sets to him. As the accused had been dealing with the complainant's company since long, the complainant supplied the goods on credit and requested the accused to make cash payment. But the accused induced the complainant to receive payment by cheque and impressed the complainant and his company that he had got sufficient cash in his account and issued cheques bearing Nos. 168034 dated 10-4-1987 for Rs. 25,700/- and No. 478993 dated 5-6-1987 for Rs. 16,500/- drawn on the Bank of Maharashtra at Calcutta. But when the complainant's company deposited those cheques, they were dishonoured with the endorsement "refer to drawer" by the Bank of Maharashtra as there was no fund in the account of the accused. Though the company intimated the accused about this fact, he did not make arrangements to clear the dues. It is further stated in the complaint petition that the accused, knowing fully well that he had no funds in his account at the time of issuing the cheques, issued the cheques with the intention of cheating the complainant and his company. On receipt of the complaint petition the learned Magistrate recorded the statement of the complainant on 11-1-89, took cognizance of the offence u/s. 420, IPC holding that a prima facie case is made out to proceed with the trial of the accused under the said section and directed issue of summons against him.

( 3 ) THE petitioner appeared in the case on 24-2-89 and raised the question of maintainability of the case against him. After hearing the counsel appearing for the parties, the learned Magistrate by order dated 6-2-90 rejected the petition filed by the petitioner challenging the maintainability of the case. Therefore, the petitioner approached this Court with the present applications.

( 4 ) THE main thrust of the argument of Sri M. M. Sahu, appearing for the petitioner, is that, accepting the averments made in the complaint petition and the statement of the complainant on their face value, the offence u/ S. 420, IPC is not made out. It is his submission that the essence of the allegation of the complainant is that the accused prevailed upon the complaina