JUDGMENT 1. - This petition under section 482 Cr. PC is against the order dated October 24, 1980 of the Judicial Magistrate No.l. Sri Ganganagar taking cognizance against the petitioner under section 420/109 IPC in criminal case No. 292/80 State of Rajasthan v. Phool Chand. This petition is, however, treated as a revision petition. 2. Briefly stated the facts are these Jagdishrai filed a complaint in the court of Additional Munsif and Judicial Magistrate, Ganganagar on 14-9-1979. It was sent to the police station, Kothwali Sri Ganganagar under section 156(3) Cr. PC. The police after investigation filed a charge sheet against Phool Chand only. However, the Judicial Magistrate No. 1, Ganganagar on 24-10-1980 took cognizance against Sajjankumar (the petitioner in this revision) as the case was transferred to his court. Aggrieved by this order, the petitioner filed this revision. It was alleged in the complaint that complainant Jagdishrai was the agent of Milap Rajasthan Roadways and M/s Bombay Bangalore Carrier. Sajjan kumar does business of purchase of cotton under the name and style of M/s Sajjan Udyog with its head office at Bombay and branch at Sri Ganganagar. Phool Chand accused No.l is the Branch Manager of Sajjan Udyog at Sri Ganganagar. On 5-7-79 on telephone Phoolchand informed Jagdishrai that he wanted to send 50 bales of cotton worth Rs. 60,000/- from Ganganagar to Kanpur and wanted the Motor Transport Receipt of Bombay Bangalore carrier. Jagdishrai sent his Assistant Manager Harindrapal Singh to have a take with Phoolchand who gave a slip and a bill for fifty bales of cotton to the former. In the slip Phoolchand requested that he was sending 50 bales of cotton and the motor transport receipt for the same may be prepared. According to the bill No. 6716 dated 5-7-1979 a motor transport receipt of Bombay-Banglore carrier was prepared and given to Jagdishram through Harindrapal Singh. When the bales were not sent till evening Jagdishrai and Harindrapalsingh went to Phoolchand and enquired from him that why he did not send the bales though he had obtained the motor transport receipt. Jagdishrai was assured be Phoolchand that he would not give the motor transport receipt in any bank till the bales were sent. Jagdishrai placed confidence on Phoolchand and did not insist on the return of the motor transport receipt (hereinafter referred to as the receipt). Jagdishrai was assured be Phoolchand that he would not give the motor transport receipt in any bank till the bales were sent. Jagdishrai placed confidence on Phoolchand and did not insist on the return of the motor transport receipt (hereinafter referred to as the receipt). Thereafter on several occasions Jagdishrai requested Phoolchand either to send the cotton bales or to return the receipt. On 21-8-1979 Jagdishrai received a letter from the Bank of Rajasthan Ltd., branch Ganganagar stating that though the MTR No 6716 dated 5-7-1979 was issued in favour of M/s Sajjan Udyog and Phoolchand had obtained Rs. 50,000/- against that receipt, the said cotton bales had not yet reached its destination Kanpur. A demand was made for this sum of Rs.50,000/- and in the alternative for the fifty bales of cotton. Then Jagdishrai came to realise that he had been cheated. Jagdishrai and Harindrapal Singh again approached Phoolchand and asked him that why he had cheated. Phoolchand replied that Sajjankumar was in dire necessity of money. He asked Jagdishrai to approach Sajjankumar and gave him a letter which was written by his assistant. Jagdishrai went to Bombay and asked Sajjankumar why such a fraud had been committed upon him. Sajjan-kumar replied that as he was in need of money he did so and would make the payment in due course. It is further alleged that fifty bales of cotton were delivered at Kanpur by Sajjankumar through Jaipur Bikaner Golden Transport Co., Sri Ganganagar. In these facts the trial court rook cognizance against Sajjankumar for the offence under section 420/109 IPC in the challan which was filed against Phoolchand only. 3. I have heard the learned counsel for the parties and perused the record of the case carefully. It is argued by the learned counsel for the petitioner that there is not an iota of evidence that Sajjan Kumar had abetted Phoolchand in this cheating. A master is not liable for the criminal acts of his servant. My attention was drawn to the following observations contained at page 403 of the IPC third Edn. by W.W. Chitaley and V.B. Bakhale:- "As seen in Note 3 it is a general principle that no person can be held guilty of an offence of which criminal intention or mens rea is an essential element unless such mens rea is proved. My attention was drawn to the following observations contained at page 403 of the IPC third Edn. by W.W. Chitaley and V.B. Bakhale:- "As seen in Note 3 it is a general principle that no person can be held guilty of an offence of which criminal intention or mens rea is an essential element unless such mens rea is proved. Consistent with this general rule, which is founded upon the maxim acts non facit reum, nisi mens sit rea, it is a general principle of law that a master or a principal cannot ordinarily be held criminally responsible for the acts of his servant or agent done without the masters or principals knowledge, because the condition of the mind of the servant or agent cannot be imputed to the master or the principal " In the same book it is thus observed at page 664:- "If the servants have committed an offence the master could not be made liable without proof that he has given his authorisation for the doing of the act. The master can be made liable only if mens rea is proved." My attention was also drawn to section 107 IPC. It is further argued that this section defines abatement as comprising one of the following three acts:- (i) instigation to commit the offence, (ii) involvement in conspiracy to commit the offence, and (iii) commission of the offence. The element of mens rea should also be present. My attention was also drawn to the following authorities:- Harakchand v. Union of India (1970 AIR, S.C. page 1453): "The maxim qui facit per alium, facit per se (he who acts through an other acts through himself) is not generally applicable in criminal law.The principle of vicarious liability is made 3pplic able in certain exceptional cases." Shriram v. State of U.P. and Siaram and anr. v. State of U.P. (1974 Cr.LJ page 715) : "Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. A person may, for example invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. A person may, for example invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of section 107. It is further argued by the learned counsel for the petitioner that the statement given by Jagdishrai during the investigation before the police that he went to Bombay where Sajjan Kumar made confession of the crime is incredible being inherently improbable. There is no other evidence on the record to show that Sajjan Kumar intentionally aided or abetted the commission of the crime. I have considered the argument carefully. As far as the principles enunciated by the learned counsel for the petitioner are concerned, they are unexceptional. A master is not liable for the criminal act of his servant in the absence of mens rea or abetment. However, I am of the view that there is enough evidence collected during the investigation to warrant an inference that Sajjankumar abetted the commission of the offence. Before I proceed further I may observe that the case is being examined only at the stage of taking cognizance and the evidence which is enough for taking cognizance of an offence may not be at the conclusion of the trial, believed by the trial court. Therefore, it is emphasised that any observations made by this Court should not prejudice the trial court in deciding the case. According to me, the following circumstances and evidence at this stage disclose a prima facie case sufficient for taking cognizance against Sajjan Kumar:- (1) From the statement of Jagdishrai it appears that he went to Bombay and approached Sajjankumur who told him that as he was in need of money he got the receipt and received the money from the bank (2) From the letter from the bank of Rajasthan Ltd. Ganganagar dated 20.8.79 it is evident that Rs 50,000/- was paid against MTR No. 6716 dated 5-7-79. (3) Letter dated 8-9-1979 on behalf of Sajjan Udyog indicates that Jagdishrai is still in confidence even after the alleged cheating. It is stated in this letter that the office of Sajjan Udyog should be closed by him. Phoolchand is further directed to move to Bhatinda and other necessary instructions regarding the shifting of telephone, closing of the bank accounts etc. (4) It is also evident from this letter dated 8-9-79 that Sajjan Kumar was trying to persuade the Chairman of the Bank not to harass Phoolchand and he was assured that he should not be worried for any contemplated action of the bank. (5) If Phoolchand had of his own cheated Jagdishrai he would not have withdrawn this amount in cash from the Bank of Rajasthan and deposited in cash in the bank account of Sajjan Udyog with New Bank of India. (6) No action whatsoever appears to have been taken by Sajjan Udyog or Sajjan Kumar against Jagdishrai. I am therefore, of the opinion that the learned Magistrate rightly took cognizance against petitioner Sajjan Kumar. It is further stated that before taking the cognizance on 24-10-1980 the learned Magistrate heard the learned counsel for Sajjan Kumar and duly noticed all the aforesaid circumstances while ' passing a detailed order. 4. It was also sought to be argued by the learned counsel for Jagdishrai that this was not an isolated case of cheating because Phoolchand and Sajjan Kumar committed certain more acts like this and various persons were cheated to the extend of Rs. 8 lakhs and odd. I do not take this circumstance or the argument in consideration because its foundation is missing from the investigation of the police. 5. As already held, there is sufficient evidence against the petitioner to justify the impugned order and as such this petition is dismissed.Petition Dismissed. *******