The main legal point established is that in cases of cheating, the intention to deceive should be present at the time of inducement, and a mere failure to keep a promise does not necessarily constitute cheating.

ORDER :

This petition, has been directed against the order dated 3-10-1996, passed by the learned Chief Judicial Magistrate, Indore in Criminal Case No. 5049/96/95) dismissing the application of the petitioner for recalling the order of issue of process, dated 2-9-1995 or dropping the proceedings against accused/petitioner.

2. Respondent No. 2, M/s Gilt Pack Ltd. filed a complaint against the petitioner and other persons on 8-2-1995 for the offence punishable under section 420/34. Learned trial Court, sent a copy of the complaint to the concerned Police Station calling the report as per Provisions under section 156(3) of the Criminal Procedure Code. The Police Report dated 7-3-1995, was received by the Court. According to the police report, it was a matter of business transaction between the parties and there was a breach of contract, therefore, no criminal case is made out against the petitioner. Thereafter, statement under section 200, Criminal Procedure Code of Mr. Aashutosh Rai, Manager of respondent No. 2, M/s Gilt Pack Ltd., was recorded on 28-4-1995. By order dated 2-9-1995 complaint was registered against the petitioner and other accused persons and the process was ordered to be issued for their appearance. The petitioner challenged this order dated 2-9-1995 by filing petition under section 482, Criminal Procedure Code before this Court. By order dated 15-5-1996, this Court has disposed of this petition in limine, without notice to the other side directing the petitioner to file objection before the learned Chief Judicial Magistrate, Indore, who shall pass reasoned order on the same.

3. The petitioner, submitted his objection dated 25-6-1996 before the trial Court, praying for dropping the proceedings against him. After hearing both the parties, learned Chief Judicial Magistrate declined to accept the objection raised by the petitioner and dismissed the same vide order dated 3-10-1996, which is challenged in this petition.

4. The petition has been filed for quashing the order dated 3-10-1996. By order dated 9-8-2000, this High Court dismissed the petition with the observation that the petitioner has all rights to raise all grounds at the time of framing of charge. This order dated 9-8-2000, has been challenged by the petitioner by filing S.L.P. (Criminal) No. 4290/2000 (Cr. Appeal No. 114/02) before the Supreme Court. The Supreme Court set aside the order dated 9-8-2000 and remanded the case back to this High Court for consideration of the petition on merit. That is how the matter has come up before this Court for its disposal.

5. To appreciate the controversy and the contention of the parties a reference to the relevant facts leading to filing of this petition, would be apt :-

Respondent M/s Gilt Pack Ltd, filed a complaint against the petitioner and other persons. The other persons are concerned by holding one or the other post in the Company. In substance, the respondent/complainant averred in the complaint that the petitioner presented himself as a Representative of M/s Kunstoplast Chemie BMBH AKC HAUS, AN DEN DREI HASEN 34/36 D-61440 OBERUSEL FEDERAL REPUBLIC OF BERMAY (hereinafter called "German Company"). The petitioner and his officials handed over 16 pages brochure showing as associate of German Company. On the representation made by the petitioner, the respondent/complainant placed an order for purchase of 1500 M.T. Polypropylene @ US 505 PMT. It was also settled between them that the payment for the goods will be done by Letter of Credit. In pursuance thereof, letter of credit A/c was opened in the State Bank of India and the copy of the same was faxed to the petitioner along with covering letter. It has also been alleged in the complaint that after receiving the letter of credit, accused persons have forced to make the necessary amendment in the letter of credit and the complainant had accepted their suggestion for amendment in the terms and conditions of the letter of credit. Therefore, he made telephone calls a