JUDGMENT M. Wahajuddin, J. - A complaint has been filed against the applicant under Sections 409 and 420 I.P.C. On being summoned under Section 420 he filed this petition under Section 482 Cr.P.C. It is urged that there is mi prima facie case and the prosecution is by way of harassment. It is also maintained that the amount has been paid. I have perused the complaint. The complaint recites that the accused person is a broker concerning grain transaction and that the complainant entrusted Rs. 10,0001- and then further sum of Rs. 50001. on certain assurance given by the accused that he nil return the sum. as and when demanded the complainant but on demand he has returned the money. At this stage this Co will not function as a Magisterial court enter into the questions of fact. The m has been resolved in the case of Delhi Municipality v. Ram Kishan, AIR 1983 SC 67 . The court simply consider what is the complaint what was the material in its support. It is urged that the applicant with his rejoinder affidavit filed c: main receipts etc. shown that the amounts have been sent to Bangalcxt to the other Firm with which transaction were entered into by the complainant. I )t complainant in the complaint has take stand that the amount was given by way entrustment and is on demand not being paid back. As to what is the true position is a question of fact and this court will no. look into the same on the authority of thy case of Delhi Municipality Ram Krishan. (supra ). 2. It was next urged that intention to cheat should beat the inception and other] wise it will be a civil liability. Reliance was placed upon the case of State of Kerala v. A.P. Pillai, 1972 Cr. L.J. 1243 SC. As to what is the intention of the parties at the inception is to Ce determined on the basis of entire evidence and circumstances which would appear during the trial and it is not possible to determine at the initial stage and at the first instance the matter should be better left to the trial court itself where such plea can be raised. Reliance was also placed upon the case of D.N. Senapati and another v. M/s. Aagrwal Trading Company and another, 1980 ALJ (N.O.) 84. Reliance was also placed upon the case of D.N. Senapati and another v. M/s. Aagrwal Trading Company and another, 1980 ALJ (N.O.) 84. Each case has to depend upon its own fact and circumstances and the ruling is distinguishable. In fact, it is only when the evidence is led that the trial court itself can determine whether liability is only a civil liability or on the proved facts ingredients of the offence under Section 420 I.P.C. are also mac'.c out. A person is not absolved of criminal liability if ingredients are made out simply because there may be a civil liability as well. For example. in cases of entrustment under Section 409 I.P.C. while a person can be prosecuted and even sentence for misappropriation is proved he would at the same time also be liable to the refund of the same is a civil liability. I think that the tendency to rush up here under Section 492 Cr.P.C. is not to be encouraged and where questions of pact are involved the matter should he first approached by the Magistrate and the pleas that may be open can be taken before the Magistrate. With these observations the application under Section 482 Cr. P C. is dismissed. 3. The stay order dated May 21, 1984 is vacated.