K. L. SHRIVASTAVA, J. ( 1 ) THIS petition under S. 482 of the Criminal Procedure Code, 1973, (for short 'the Code') is directed against the order dated 5-8-1986 passed by the Judicial Magistrate first Class, Barwah in Criminal Case No. 567/86 whereby under S. 204 of the Code, he has ordered issue of process against the petitioner in respect of an offence under S. 420 of the I. P. C. ( 2 ) CIRCUMSTANCES giving rise to the petition are these. The non-applicant No. 1 filed a complaint against the petitioner complaining that he has committed an offence under S. 420 of the I. P. C. ( 3 ) ACCORDING to the non-applicant 1 the petitioner on 28-2-83 purchased, on credit, cotton worth Rs. 90,178. 20 p. It was agreed that the entire price shall be paid within 30 days of the transaction. Subsequently a postdated cheque for Rs. 90,000/- payable by or after 12-4-83 was sent. When the same was presented for encashment it was dishonoured by the bankers as the payment of the cheque had been stopped by the petitioner. Later on 4-6-1983 and 25-7-83 the non-applicant 1 in all received Rs. 40,178. 00 towards the price of the cotton supplied. Rs. 50,000/-, the balance of price still remain unpaid. ( 4 ) THE contention of the petitioner in this Court is that the post-dated cheque was issued in due course of business and it was ever the intention that it should not be cleared by the bankers on the due date. It is urged that the partial payment of price clearly negatives the existence of any dishonest intention. It is further urged that even after the cheque had been dishonoured, the non-applicant 1 has received payment towards the price and the disputed is essentially of civil nature. The complaint, it is urged, deserved the fate of dismissal under S. 203 of the Code. ( 5 ) THE non-applicants have supported the impugned order. Reliance has been placed on the decisions in Shantilal's, 1956 0 Crlj 68 and Daulatram's case 1982 MP WN 88 ). ( 6 ) THE point for consideration is whether the petition deserves to he allowed. ( 7 ) A Magistrate owes a duty to the complainant as well as to the absentee accused. Reliance has been placed on the decisions in Shantilal's, 1956 0 Crlj 68 and Daulatram's case 1982 MP WN 88 ). ( 6 ) THE point for consideration is whether the petition deserves to he allowed. ( 7 ) A Magistrate owes a duty to the complainant as well as to the absentee accused. It is his duty to see that criminals are brought to book but it is also his duty to ensure that innocent persons are not harassed with ulterior motive through the process of criminal court. The decision in Vadilal Parichat's, AIR 1960 SC 1113 may usefully he perused. It is true that care has to be taken to ensure that a party does not succeed in using the machinery of criminal law for enforcement of civil rights. However, it has to be remembered that a transaction may give rise to civil as well as criminal liability. In a given case the dividing line between the two liabilities may be very thin but the distinction is real and cannot lie ignored. ( 8 ) EXCEPTIONS apart, actus reus and mens rea (guilty intention) both must concur to constitute a crime. Mens rea precedes the act. Whether the act is coupled with the preexisting mens rea, a crime is properly constituted. Where there is no pre-existing mens rea and there is subsequent inability to perform the promise, only civil liability is incurred. As pointed out in the decision in Shantilal's case (1956 Cri LJ 68) (Madh Bha) (supra) a distinction must be drawn between a case where a post-dated cheque is given to discharge the existing liability and a case where it is issued against delivery of goods, property or cash with an assurance implied or otherwise that it will he met on being presented to the bank on the due date and in due course. In the first case the failure to provide the balance is merely a breach of promise whereas in the latter it may have different consequences. In the first case the failure to provide the balance is merely a breach of promise whereas in the latter it may have different consequences. It is the intention of the drawer at the time when the cheque is issued which constitutes the material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal course, it would be prima facie proof of the intention to cheat as is clear form Illustration (f) to S. 415 of the I. P. C. which is as under :-"a intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats. " ( 9 ) IT may be pointed out that direct proof of mens rea is seldom available and it has often to be inferred from the surrounding circumstances. If form the facts it is established that failure to meet the cheque was not accidental but a consequence expected by accused, the presumption would be that the accused intended to cheat. Where prosecution establishes facts which lead prima facie to the conclusion that failure to meet the cheque was not accidental but was consequence expected and, therefore, intended by the accused it will then be for the accused to establish any fact which may be in his favour which was especially within his knowledge and of which the prosecution could not be expected to have any information. In this connection the provision is S. 116 of the Evidence Act may usefully be perused. ( 10 ) IN cases of complaints, S. 204 of the Code must be read as supplemental to S. 203 ibid and the admissible material therein referred to constitutes the basis for the opinion pertaining to process. It may be noted that an accused in a Criminal trial has the protective should of presumptive innocence. Legislature has prescribed different standards for evaluating the material on record at different stages of a criminal case. It may be noted that an accused in a Criminal trial has the protective should of presumptive innocence. Legislature has prescribed different standards for evaluating the material on record at different stages of a criminal case. At the stage of taking cognizance and issue of process under S. 204 of the Code, considering also the question of probable defence Vedilal Panchal's case AIR 1960 SC 1113 , the material must be such as to enable the Magistrate to form an opinion that there are sufficient grounds for proceeding, that is, sufficient ground for issuing process against the accused in respect of an offence. Thus at this stage a court is concerned merely with the existence of prima facie case for that limited purpose. All that has to be seen is that the complaint and the statements of witnesses create a situation where there appears to be truth in the allegation and the necessity of further probe in the matter is indicated in the interest of justice. Reference in this connection may be made to the decision in Saurendra Mohan Basu, AIR 1961 Cal 461 . However, at the subsequent stage of charge, the material has to be such as to satisfy a more rigorous test. At that stage it must be such as to sustain an opinion that it raises not merely a suspicion but a positive presumption of guilt. Reference in this connection may usefully be made to the provisions embodied in S. 211 (5) and S. 246 (1) of the Code. The material on which charge is framed need not be fully worthy of credit but must be such as to carry a reasonable degree of credit. It must be remembered that at this stage it is not necessary that the evidence must be sufficient to sustain conviction and though the Section contemplates framing of charge only when a prima facie case is made out, the Magistrate, even in the absence of rebuttal by the accused against whom he has framed charge, is free to test the evidence more closely in the crucible of probabilities for the final verdict. It may be pointed out that in order to sustain the finding of guilt at the conclusion of a trial, the material must stand the most rigorous test of proof beyond reasonable doubt. In this connection the decision in Kewal Krishna's, AIR 1980 SC 1780 may usefully be perused. It may be pointed out that in order to sustain the finding of guilt at the conclusion of a trial, the material must stand the most rigorous test of proof beyond reasonable doubt. In this connection the decision in Kewal Krishna's, AIR 1980 SC 1780 may usefully be perused. ( 11 ) RELATING to the offence of cheating punishable under S. 420 of the I. P. C. it has been stated thus S. L. Savani's case (1988) I MPWN 42 :-"legislative definition of the offence of cheating as embodied in S. 415, I. P. C. though not so vide as moralists would like it to be, is none-the-less wide enough to bring within its coverage a large Section of the wrong-doers. It may be noted that the definition of cheating consists of two parts - each independent of the other. First part pertains to delivery or retention of property. In order to establish the offence of cheating as contemplated under the second part it has to be shown that not only that person deceived was induced to do or not to do something but this act or omission on his part caused or is likely to cause damage or harm in body, mind, reputation or property which are presumed to be the four cardinal assets of humanity. A transaction may give rise only to civil liability or to criminal assets of humanist. A transaction may give rise only to civil liability or to criminal liability or to both. It may be noted that S. 415, I. P. C. does not in any manner limit the mode in which deception may take place or is it necessary that the deception should be by express words. It may be by conduct or implied in nature o1 the transaction itself. "the decision in Ajit Kumar's case (1988) I MPWN 18 may also be usefully perused. ( 12 ) AS already pointed out dishonest intention at the inception of delivery of retention of property is the gist of the offence of cheating punishable under S. 420, I. P. C. and, therefore, every subsequent non payment, in the transaction of sale on credit, is not within its ambit. In a given case subsequent act in conjunction with other circumstances may properly be considered in determining whether or not there was guilty mind in the very beginning of the bargain. In a given case subsequent act in conjunction with other circumstances may properly be considered in determining whether or not there was guilty mind in the very beginning of the bargain. In the instant case on a careful consideration of the facts and circumstances and looking to the course of events in the light of the law discussed above, it cannot be said that the transaction in question constitutes merely a civil wrong and that there was no fraudulent representation as to payment for getting delivery of the valued goods. The transaction has a criminal tinge and the material is sufficient for an inference of mens rea of dishonest intention at the time of promise. The decision in Daulatram's, 1982 0 MPWN 88 may usefully be perused. ( 13 ) IT has to be remembered that interference with a discretionary order is not to be lightly made. In the decision in E. S. Mills Shri Virendra Kumar's case AIR 1985 SC 1668 it has been pointed out that interference under S. 482 of the Code during investigation is permissible only if non-interference would result in miscarriage of justice. ( 14 ) AS a result of the foregoing discussion I find that there is no miscarriage of justice and the order passed by the learned Magistrate in exercise of his discretion is not liable to be interfered with either in exercise of this Court's revisional jurisdiction or inherent powers under S. 482 of the Code which as pointed but in Delhi Municipality's, AIR 1983 SC 67 have different parameters. ( 15 ) IN the result, the petition fails and is dismissed. Petition dismissed. .