A charge of cheating under S.420, IPC requires deception and fraudulent intent which were not established in this case.

1. Heard Sri Murli Manohar Srivastava, learned counsel for the petitioner, Sri Manish Bajpai, assisted by Sri Punit Saxena, learned counsel for opposite party No. 2 as well as learned AGA for opposite party No. 1 and perused the record.

2. Petition has been preferred to quash the proceedings of Complaint Case No.180 of 2006 (Gopal Krishna v. Dr. Rajesh Bhatia), under S.420, IPC, Police Station Gomti Nagar, Lucknow pending before the Court of Additional Judicial Magistrate, Court No.37, Lucknow and judgment and order dated 9.8.2007 passed by the learned Sessions Judge in Criminal Revision No.233 of 2007; Dr. Rajesh Bhatia v. State and Ors. whereby the revision was dismissed and summoning order passed by learned Magistrate on 26.6.2007 was confirmed.

3. A complaint was filed by opposite party No. 2 with the allegations that the opposite party No. 2 is a retired Central Government Employee. He contacted the petitioner for the operation of his eyes as well as eyes of his wife namely, Smt. Rani Sinha. Opposite party No. 2 asked that an expenditure of Rs.13,000/- has to be incurred in the operation and the receipt would be given but receipt of only Rs.900/- was given. Payment of Rs.13,000/- was made by Rajesh Sinha son of opposite party No. 2 through Cheque No.531072 dated 16.7.2005 from the account of ICIC Bank, Gomti Nagar, Lucknow. Operation was not successful, although an amount of Rs.13,000/- was received by the opposite party No. 2 but only receipt of Rs.1800/- was given. Legal notice was issued.

4. On the basis of this complaint opposite party No. 2 was examined under S.200 Cr.P.C. and his son Rajesh Sinha under S.202, Cr.P.C. Learned Magistrate summoned the petitioner under S.420, IPC.

5. Feeling aggrieved, revision was preferred before the learned Sessions, Lucknow which was dismissed by the learned Sessions Judge on 9.8.2007 holding that the revision against the summoning order is not maintainable.

6. Feeling aggrieved, petitioner has filed the petition under S.482, Cr.P.C. challenging both the orders.

7. Learned counsel for the petitioner submits that the learned Magistrate has illegally summoned the accused as there was no evidence or material available on record to summon the petitioner to face trial under S.420, IPC. It was further submitted that admittedly a cheque was issued by the opposite party No. 2 which was duly received by the petitioner and was deposited in his account which was credited. It is submitted that no receipt of Rs.13,000/-was issued by the petitioner rather the same was issued by the Mayo Hospital, Gomti Nagar, Lucknow wherein the petitioner is a visiting doctor. It is submitted that the case of the petitioner is purely civil in nature wherein a complaint was also filed before the Consumer Forum which was dismissed.

8. Learned counsel for the petitioner has placed reliance upon the decision in the case of Devendra and Ors. v. State of Uttar Pradesh and another 2009 (7) Supreme Court Cases 495, Joseph Salvaraj A. v. State of Gujarat , reported in AIR 2011 Supreme Court 2258, and judgment of learned single Judge of this Court in case of Dharmendra Singh and Ors. v. State of U.P. and another 2011 (1) JIC 446 (All)). It is submitted that necessary ingredients of the offence of cheating as defined 415, IPC are not made out.

9. Learned counsel for opposite party No. 2 submits that on the inducement of the petitioner cheque was issued by the opposite party No. 2 wherein it was accepted by the petitioner that he would issue a receip