I.S.TIWANA, J. - (1.) A complaint under Sections 420/427, IPC, was filed against the petitioner in the Court of Additional Chief Judicial Magistrate, Gurdaspur, with the following allegations.
(2.) ON March 31, 1984, November, 26, 1984 and November 29, 1984, the respondent complainant sold three truck-loads of coal to the petitioner for a sum of Rs. 32775/- on credit. Some time later, i.e. on November 30, 1984, the petitioner issued a cheque for Rs. 35,000/- in favour of the complainant. It was drawn on the Central Bank of India, Gurdaspur. The amount in excess of the sale consideration was stated to be paid by the petitioner by way of interest on the price of the goods sold to him. It was then alleged that when the complainant went to the Bank to encash that cheque on April 8, 1985, the Manager of the Bank endorsed that the petitioner had issued instructions to the Bank to not to release the amount. The complainant then finding that he had been cheated, filed the present complaint on April 29, 1985. After recording the preliminary evidence led by the complainant, the Magistrate declined to summon the petitioner as an accused for the following reasons :- "Admittedly when the cheque was issued, no consideration passed and nothing was paid by the complainant to the accused and further cheque was allegedly issued by the accused to the complainant much after the purchase of goods. The accused can only be said to have committed offence, if some consideration had passed, when the goods were purchased and the delivery was made, then cheque was dishonoured. It can be said that at that time there was dishonest intention on the part of the purchaser, but if subsequently cheque is issued by the purchaser and payment is not made, then it is only a civil matter and it cannot be said that at the time of issue of cheque, the purchaser cheated the same by taking delivery without making payment by cheque." This order was successfully impugned by the respondent before the Additional Sessions Judge, who while setting it aside, has sent the case back to the Magistrate for further enquiry. For adopting this course, he has concluded the matter thus :- "Nanak Chand petitioner stated as PW-1 that the dishonest intention was present in the mind of the accused right when he supplied coal to him. It was falsely represented by him that he would make payment of the price of coal through cheque though he knew that he was not meaning what he was saying." It is difficult to appreciate the conclusion of the learned Additional Sessions Judge that the petitioner had the dishonest intention to not to pay the amount in question even on the dates that coal was supplied to him. If the statement of Nanak Chand as PW.1 that "dishonest intention was present in the mind of the accused right when he supplied coal to him" is to be accepted, then it is difficult to appreciate as to why did he supply the coal to him at all. It is the admitted position that in the absence of this statement there are not facts or circumstances on record to show that the petitioner had any such dishonesty intention either on the dates the coal was supplied to him by the respondent or the cheque was issued by him in favour of the latter. Rather as has been stated in the complaint itself, the coal had been supplied to the petitioner on three different dates and that too on credit. Merely because that subsequently the petitioner failed to pay the price of the coal, the commission of an offence under Section 420, IPC, cannot be assumed. Thus for the reasons recorded above, I find that the Additional Sessions Judge completely misdirected himself in setting aside the order or the Magistrate on untenable grounds. I, therefore, allow this petition and while setting aside the order of the Additional Sessions Judge, uphold that of the Additional Chief Judicial Magistrate. Petition allowed.;