( 1. ) THIS is an application under section 482 of the Criminal Procedure Code, 1973 (for short the Code) for quashing the proceedings in Criminal Case No. 375 of 1987 pending in the Court of Judicial Magistrate, First Class, Maheshwar.

( 2. ) CIRCUMSTANCES giving rise to the application are these :

On the basis of a written report lodged at P. S. Maheshwar by Govind Tiwari, Advocate, Maheshwar, the police on 24-7-1987 filed a challan under section 420, Indian Penal Code against the petitioner.

( 3. ) ACCORDING to the report the petitioner on 13-1-1987 borrowed Rs. 3000/- from the said Advocate and executed a document assuring him that he would repay the loan on receipt of money from Mandleshwar Court. However, despite haying received a cheque from the Court on 9-3-1987 and having withdrawn the amount, the petitioner despite persistent demands, has been evading payment and ultimately on 29-4-1987 when the petitioner had come to the office of the non-applicant he on being told that he should not cheat, he filthily abused him and threatened him with life in case demand for the money is made in future.

( 4. ) ACCORDING to the petitioner, the non-applicant Govind Tiwari was his counsel in the claim case No. 49/86 (old Number being 114/84) pending before the Motor Accidents Claims Tribunal, Mandleshwar. The said claim case was disposed of in the Lok Adalat and compensation in the sum of Rs. 6,000/-was awarded. It was agreed that the non-applicant would be paid 71/2% of the actual claim allowed. He, however, insisted on 50% of the claim being paid to him and on refusal has prepared the document in question on one of the blank papers which he had got signed by the petitioner earlier in connection with the said claim case.

( 5. ) THE learned Magistrate after complying with the requirements of section 240 of the Code framed charges against the petitioner not only in respect of offence under section 420 but also under section 506, Part II of the Indian Penal Code.

( 6. ) THE petitioner preferred a revision petition in the Court of Session, West Nimar, Mandleshwar against the framing of charges, against him. His contention that the dispute is essentially of civil nature and no offence is constituted has been negatived and the revision petition has been dismissed (vide order dated 1-2-1988 passed by the Sessions Judge in Criminal Revision No. 4/88 ).

( 7. ) THE petitioner, by the present petition seeks quashing of the proceedings on the ground that no offence is constituted and at any rate the dispute being of civil nature, continuance of the proceedings constitutes abuse of the process of the Court.

( 8. ) THE point for determination is whether the application deserves to be allowed.

( 9. ) THE contention of the learned counsel for the petitioner is that the dispute as to loan is of civil nature and the non-applicant in obtaining the document of loan has misused his position as an advocate. According to him neither the written report lodged by the latter nor the material collected during investigation reveals the mens rea for the offence under section 420, Indian Penal Code. It is further urged that in the circumstances, the allegations do not constitute any offence under section 506, Part II, Indian Penal Code.

( 10. ) THE contention of the learned counsel for the State is that the material on record is sufficient to sustain the charges and at any rate no exceptional case for interference in exercise of the powers under section 482 of the Code having been made out the application deserves the fate of dismissal.

( 11. ) CIVIL liability must be distinguished from criminal liability. As for the offence under section 420, Indian Penal Code actus reus and mens rea both must concur and in the absence of requisite mens rea, no criminal liability thereunder can be fastened.

( 12. ) IT may be pointed out that section 415, Indian Penal Code defining cheating is in two parts. The first part relates to property and the second part relates to act or o