Ajit Singh Bains, J. - (1.) The petitioner is being prosecuted under Sec. 420 Indian Penal Code by the respondent in the Court of Judicial Magistrate Ist Class, Hissar. The respondent filed a complaint against the petitioner under Sec. 406 and 420 of the Indian Penal Code.
(2.) On the basis of the allegations in the complaint, the learned Magistrate issued process against the petitioner, which is as follows: - - Heard The allegations against the accused are that he got his tractor repaired from the complainant's firm and paid a cheque: that the said cheque was dishonored later on So the present complaint was made for an offence under Sec. 420 Indian Penal Code The facts alleged in the complaint are supported by the preliminary evidence and were the same in authority reported as 1 -65 Current Law Journal 470 So, I find a prima facie case for for an offence under Sec. 420 Indian Penal Code against the accused. Accused is ordered to be summoned for the said offence on filing of process fee for 15th June, 1978. It is against this order that the present petition has been filed.
(3.) A perusal of the allegations in the complaint slows that she dispute between the parties is of a civil nature. The petitioner approached the respondent complainant for overhauling the engine of his tractor The complainant informed hire that it will cost him an expenditure of Rs. 4,000/ -. The accused -petitioner assured the complainant that he will be in a position to bear the assured expenses and if the outliner tractor is overhauled the payment shall be made in cash. The tractor was overhauled and repaired and a bill of Rs. (sic) was submitted by the complain to the petitioner for payment. The petitioner issued a cheque to the complaint for the above side amount, which was dishonored Facts of the case reported in the 1965 Criminal Law Journal 470 relied upon by the learned Magistrate are distinguishable. It is settled law that mere dishonoring of the cheque will not bring the matter within the mischief of Sec. 406 or Sec. 4 0 of the Indian Penal Code. The complaint does not show that there was any misrepresentation. The element of cheating must be at the initial stage, which is missing in the present case when if the allegations in the complaint may be taken as cornet. The petitioner approached the complainant to get his tractor repaired and overhauled for which the complainant issued a bill of R. 4122 40 Such a dispute is essentially of a civil nature and there has been no element of chearing or misrepresentation in the present case. Mr G.R. Majithia, learned counsel for the respondent complainant relied upon Sita Ram v/s. The State, (1963) 67 P.L.R. 474, Murari Lal v/s. Shiv Parkash etc., 1971 Cur. L.J. 90 and Randhir Singh v/s. The State of Punjab, 1978 P.L.J. Cr. 28. None of these authorities are relevant to the facts of the present case. There is no dispute regarding the proposition of law laid down in these authorities. In every authority, it is laid down that the element of cheating must be present from the very beginning, i.e. at the time when the parties enter into some bargain;