The essential ingredients of the offence of cheating under Section 420 of the Indian Penal Code, namely, deception, false representation, inducement and dishonest intent, must be established.

JUDGMENT :

S.K. Ray, J. - This is an application by the accused in complaint case No. ICC 2 of 1971 in the Court of the S.D.M. Nawapara made u/s 561-A. Code of Criminal Procedure for quashing the criminal proceedings against him.

2. The opposite party filed complaint case against the Petitioner in the Court of S.D.M. Nawapara on 7-1-1971. Which as registered as Case No. ICC 2 of 1971. His case is that the Petitioner committed an offence u/s 420, Indian Penal Code on the basis of the following allegations:

The accused came to the shop of the complaint at Khariar Road on 5-1-1968 and placed order for 692 bags of Mohua flower each weighing 75 k.gs. at the rate of Rs. 55.00 per bag. Thus the total amount payable by the accused was Rs. 38,758.00 which the accused promised to pay within 3 months from the date of receipt of 692 bags of Mohua flower. The complainant knew the accused from before as a business man dealing with Mohua flower. He believed in good faith the accused and delivered the goods to him, under 4 separate consignments, 2 consignments being sent on 20-1-1968, 3rd on 30-1-1968 and 4th on 10-2-1968. All these consignments were received by the accused in good condition. The accused paid Rs. 20,500/- in 4 instalments and promised to pay the rest which he never fulfilled after taking time for payment on certain flimsy grounds. The complaint alleges that he delivered the Mohua flower to the accused in good faith believing his representation and promise. What that representation was which induced him to deliver 4 consignments of Mohua flower has, however, not been stated in the complaint petition. The complaint petition was filed on 7-1-1971 about more than 3 years after the date when the offence is said to have been committed.

3. In his initial deposition the complainant stated as follows:

I am a partner of the firm in the name and style of Asok Kumar Rasiklal and Company dealing with Mahua flowers. The accused is partner in the firm in the name and style 'Seth Mathura Das Kaluram Mundra' dealing with Mohua in Gondia in Maharastra,

That on 5-1-1968 the accused came to my firm office at Khariar Road and contracted me to purchase Mohua from my firm office presenting himself as a big Mohua dealer. He wanted to purchase three wagons of Mohua worth of Rs. 38. 700.00 and some odd. I believed him. The accused said that he will send payment of entire amount within 3 months fro the date of delivery of goods.

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In good faith as the accused is brother businessman and waited for fun payment but when he avoided to pay the same, I have filed this case.

4. The Sub-Divisional Magistrate took cognizance of the case and summoned the Petitioner to stand his trial. After the accused appeared, the complainant examined his witnesses. Three witnesses were examined and cross-examined before charge. Thereafter the Magistrate heard the counsel on the question of framing of charge and ultimately framed a charge u/s 420 Indian Penal Code on 24-3-1972. The charge was read over and explained to the accused to which he pleaded not guilty and then the case was adjourned to 11-4-1972 for cross-examination of the p.ws. after charge.

5. The Petitioner moved the Sessions Judge in revision making a reference to this Court recommending quashing of the charge. The Sessions Judge dismissed the revision application on the ground that there was no legal bar in launching a criminal prosecution simultaneously with institution of civil proceeding. It was contended before him which is also a fact, that shortly after filing of the complaint petition, the complainant filed M.S. No. 2/71 on 20.1.1971 in the Court of Subordinate Judge, Bhawanipatna for realisation of the balance amount of Rs. 18,258/- s with interest and costs.

6. The Petitioner has now filed this application for quashing the proceeding.

7. Ordinarily the High Court is reluctant to interfere with criminal proceeding at an interlocutory stage, but the Supreme Court has enumerated in the case of R.P. Kapur Vs. The