JUDGMENT : ( 1. ) THIS revision petition is directed against the order dated 1-9-1986 passed by the Chief Judicial Magistrate, Dewas in Criminal Case No. 157 of 1986 whereby he has held that the case for charge Under Section 420, Indian Penal Code has, prima facie, been made out. ( 2. ) CIRCUMSTANCES giving rise to this petition are these : M/s. Hind Syntex, Dewas (for short the Hind Syntex) through its Company Secretary-cum-General Manager, D. Sharma lodged a written report dated 17-12-1986, with the Industrial Area Police Station, Dewas that the applicant who carries on business in the name and style of M/s. Agrawal Syntex Private Limited, Dewas (for short the Agrawal Syntex) has, by cheating the firm, obtained yarn worth Rs. 2,71,709. 40. ( 3. ) ACCORDING to the report, it was sometime in the month of November 1984 that the applicant negotiated for purchase of yarn from the Hind Syntex. He proposed that the price would be paid through Hundis which would be honoured in due course. He also assured that for the sellers satisfaction he would stand as personal guarantor. ( 4. ) IN accordance with the agreement aforesaid, materials were supplied against Hundis. According to the report 17 hundis of various dates in relation to invoices of different dates between 15-11-1984 and 19-6-1985 covering an amount of Rs. 2,71,709. 40 were dishonoured when presented for payment. When approached for payment, the petitioner resorted to one pretext or the other. Registered letters addressed to him were returned with the endorsement either refused or factory closed. He made himself scarce and the concern Agrawal Syntex has been closed. ( 5. ) IT was further stated in the report that in pursuance of the initial promise the petitioner submitted personal guarantees to the Hind Syntex on 13-5-1985, 18-6-1985 and 25-6-1985. ( 6. ) ACCORDING to the report, the fact that the petitioner had the requisite mens rea at the very inception of the bargain is evident" and his subsequent conduct points in this very direction. ( 7. ) ON the basis of the aforesaid report, the police on 17-12-1985, registered a crime Under Section 420, Indian Penal Code against the applicant and investigation was set afoot. ( 8. ) AT the conclusion of the investigation the police prosecuted the applicant. ( 9. ( 7. ) ON the basis of the aforesaid report, the police on 17-12-1985, registered a crime Under Section 420, Indian Penal Code against the applicant and investigation was set afoot. ( 8. ) AT the conclusion of the investigation the police prosecuted the applicant. ( 9. ) THE contention of the petitioner is that business dealings between the two concerns covered the period between November 1983 and June 1985. These dealings were to the tune of Rs. 16,27,689. 53 out of which payments amounting to Rs. 13,56,312. 78 have been made, and the payment stands withheld due to inferior quality of the goods supplied. It was urged that it is clear from the course of transactions, that mens rea from the very inception cannot be imputed to the petitioner and, therefore, no offence Under Section 420, Indian Penal Code is constituted. ( 10. ) AFTER hearing the parties on the question of charge, the learned Magistrate held that the applicant obtained delivery of the goods representing that payments under Hundis in question would be made and if there was any dispute as to the quality the goods ought to have been returned. He held that a case for charge Under Section 420, Indian Penal Code has been made out. ( 11. ) THE point for consideration is whether the revision petition deserves to be allowed. ( 12. ) SECTIONS 238 to 243 in Chapter XIX of the Criminal Procedure Code, 1973 (for short the Code) deal with the trial of warrant cases by Magistrates in relation to cases instituted on police report. Section 239 deals with discharge and Section 240 deals with framing of charge. ( 13. ) SECTION 239 of the Code provides that if upon considering the police papers, such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. Section 240 ibid provides that if upon such consideration, examination and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, triable under this chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. 13a. Exceptions, apart, actus reus and mens rea both must concur to constitute a crime. Mens rea precedes that act. Where the act is coupled with mens rea a crime is properly constituted. Where there is no mens rea and there is subsequent inability to perform the promise, only a civil liability is incurred. ( 14. ) AS pointed out in Radha Kishans case, Misc. Cri. Case No. 1674/86 decided on 2-8-1988 care has no doubt to be taken to ensure that the machinery of criminal justice is not misused for settlement of civil disputes but it has also to be remembered that a transaction may give rise to civil as well as criminal liability. ( 15. ) SECTION 415, Indian Penal Code defines cheating and Section 420 ibid embodies the penal provision therefor. As pointed out in the decision in S. L. Sayanis case, 1988 (I) MPWN 42 the definition of cheating is in two parts each independent of the other. The first part pertains to delivery or retention of property. It is the intention at the time of the act which constitutes the material test as to the nature of the liability. In this connection reference to illustration (f) to Section 415, Indian Penal Code is apposite. It runs thus : "a, intentionally deceives X into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend money, A not intending to repay it. A cheats. " ( 16. ) IT may be pointed out that direct proof of mens rea is seldom available and it has often to be inferred from the attendant circumstances. If on the material made available on record, it appears prima facie that failure to perform the promise was not accidental but a consequence expected by the "accused, the presumption would be that he intended to cheat and it will be for the accused to establish otherwise. ( 17. If on the material made available on record, it appears prima facie that failure to perform the promise was not accidental but a consequence expected by the "accused, the presumption would be that he intended to cheat and it will be for the accused to establish otherwise. ( 17. ) IT may be noted that the Legislature has prescribed different standards for evaluating the material on record at different stages of a criminal case. At the stage of issuing process Under Section 204 of the Code, the requirement is that the material is 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 the offence, as pointed out in Vadilal Panchals case, AIR 1960 SC 1113 considering the question of probable defence is not entirely ruled out and all that has to be seen is that the material creates a situation where the necessity of further probe in the matter is indicated. In this connection the decision in Sourendra Mohan Baxis case, AIR 1961 Cal. 461 may usefully be perused. ( 18. ) IN the decision in Naresh Chandra v. State, 1987 All, LJ. 1066 it has been noted that Sections 227, 239 and 245 of the Code employ different words in relation to discharge but as pointed out in the decision in R. S. Nayaks case, AIR 1986 SC 2045 the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. ( 19. ) HOWEVER, at the subsequent stage of charge material has to be such as to satisfy a more rigorous test than at the stage Under Section 204 of the Code. 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 Sections 211 (5) and 240 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. As pointed out in Supdt. Reference in this connection may usefully be made to the provisions embodied in Sections 211 (5) and 240 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. As pointed out in Supdt. and R. of L. A. W. B v. Anil Kumar, AIR 1980 SC 52 the truth veracity of the effect of material has not to be meticulously judged and even a very strong suspicion founded on material before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge. 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 the charge, is at the later stage free to test the evidence more closely in the crucible of probabilities as to whether it furnishes proof beyond reasonable doubt for the final verdict of conviction. In this connection the decision in Kewal Krishnas case, AIR 1980 SC 1780 may usefully be perused. ( 20. ) AS pointed out in Union of India v. Prafulla Kumar, AIR 1979 SC 366 if the material disclosed grave suspicion against the accused which has not been explained, the Court would be justified in framing the charge. ( 21. ) UNDER Section 239 of the Code an accused can be discharged provided a categorical finding is given by the Magistrate that the charges are groundless. In this connection the decision in Mahata Swamis case, 1987 Crllj. 497 is pertinent. In order to hold a charge groundless either there should have been no iota of evidence or the evidence produced should have contraindicated the offence or any fundamental error to assume cognizance in the case should have been established. The accused may ultimately succeed in making out a defence in his favour and that may result in his acquittal but that whould not be a consideration for an order of discharge Under Section 239 (1977 Cri. LJ. NOC 228 ). ( 22. ) IN the decision in Vinod Kumars case, 1987 Cri. The accused may ultimately succeed in making out a defence in his favour and that may result in his acquittal but that whould not be a consideration for an order of discharge Under Section 239 (1977 Cri. LJ. NOC 228 ). ( 22. ) IN the decision in Vinod Kumars case, 1987 Cri. L. J. 1335 it has been pointed out that there appears to be no reason why an accused cannot at the stage of charge produce his documents. The provision Under Section 294 of the Code authorises this, subject of course to the accuseds document being genuine and the prosecution can be called upon to admit or deny the genuineness of the documents listed by the accused. The prosecution and the accused are put at par so far as the documentary evidence is concerned. ( 23. ) IT is true that no pre-trial inquiry is envisaged by the provisions of Sections 239 and 240 of the Code. However, Under Section 311 ibid in a given case, if so required in the interest of justice, the Court may even before framing charge summon a witness and examine him if his evidence appears to the Court to be essential to the just decision of the case. The accused person, however, cannot at the initial stage of the trial compel a Magistrate to summon any witness, whom the accused considers to be a necessary witness, for recording his statement. Resort to such course would amount to pre-trial inquiry and operate oppressive against the prosecution (see 1979 Cri. LJ. NOC206 Delhi ). ( 24. ) IN the instant case, on the admissible material on record, it appears that the applicant by practising deception induced delivery of goods and, therefore, the opinion of the learned Magistrate that there is ground for presuming that the accused has committed an offence Under Section 420, Indian Penal Code cannot be faulted. The impugned order does not deserve to be interfered with in exercise of the revisional jurisdiction. ( 25. ) IN the result the revision petition fails and is dismissed.