JUDGMENT : K.P. Mohapatra, J. - In this petition u/s 482 of the Code of Criminal Procedure ('Code' for short) the Petitioners, who are accused in I.C.C. Case No. 337 of 1983 of the court of the Chief Judicial Magistrate, Cuttack, have challenged the order of cognizance of an offence u/s 420 of the Indian Penal Code ('I.P.C.' for short). 2. Facts in brief as stated in the complaint petition are narrated. The opposite party is a wholesale dealer of cloth having his shop premises at Choudhury Bazar. The Petitioners related as father and son respectively belong to Coach Behar in West Bengal and carryon business in textile goods. Generally they visit important places, purchase different varieties of cloth from wholesale dealer and sell the goods in exhibitions and in this process they earn huge profits within a short time. They came to Cuttack for the purpose of exhibition and sale of textile goods sometime in December 1983 and stayed in Hotel Lords at Haripur Road, where in the foyer they opened an exhibition shop of textile goods. On 3.12.1983 they approached the opposite party and wanted to purchase cloth on credit promising that every night they will make payment of Rs. 1000/- to him. With this understanding, they purchased cloth worth Rs. 42,602/- on credit from the opposite party on the basis of a credit memo and on the very day paid a sum of Rs. 1000/-. Thereafter, on 4.12.1983, 5.12.1983, 6.12.1983 and 7.12.1983 instead of paying Rs. 1000/- daily, they paid Rs. 125/- to the opposite party on each day pleading that there was slump in sale. In the evening of 8.12.1983 when the opposite party went to Hotel Lords to collect money, he found to his utter surprise that the Petitioners had vanished with the textile goods. He understood that in the night of 7.12.1983 they left the hotel with the unsold clothing a matador mini bus and headed towards Berhampur. The opposite party proceeded to Berhampur, but did not find them. He made a search for them, but to no avail. On enquiry, he learnt that the Petitioners had purchased goods on credit from several other dealers, but had not pard the price. A sum of Rs. 41,102/- remained outstanding against them after deduction of Rs. 1500/- which they had paid. He made a search for them, but to no avail. On enquiry, he learnt that the Petitioners had purchased goods on credit from several other dealers, but had not pard the price. A sum of Rs. 41,102/- remained outstanding against them after deduction of Rs. 1500/- which they had paid. The opposite party felt cheated and so filed the complaint petition alleging that the Petitioners had committed offence under Sections 406 and 420 I.P.C. After recording the initial statement of the opposite party and on consideration of the facts stated in the complaint petition, as well as the credit memo, the learned Chief Judicial Magistrate took cognizance of an offence udder Section 420 I.P.C. against the Petitioners and issued process. 3. Learned Counsel appearing for the Petitioners urged that the case was of civil nature and not cognizable by the criminal court. It was open to the opposite party to institute a suit against the Petitioners for recovery of the dues. Ingredients of the offence of cheating are wholly absent. Therefore, even if the facts stated in the complaint petition are accepted as a whole, a prima facie case u/s 420 I.P.C. has not been made out and if the case proceeds there shall be abuse of the process of the court and gross miscarriage of justice. So, this is a fit case for quashing the impugned order of cognizance in exercise of inherent powers u/s 482 of the Code. 4. The offence of cheating u/s 420 in terms of the definition Section 415, I.P.C. has two essential ingredients; (i) deceit dishonest or fraudulent misrepresentation and (ii) the inducing of that person to deliver property. The deception must be with a dishonest and fraudulent intent. Cheating amounts to inducing the victim to enter into a bargain, which he would not enter into, if he knew the real facts. Unless criminal intention of the accused, when the offence was committed, is established, no offence of cheating can be said to have been committed. A few decisions cited at the Bar may, however, be noticed. 5. In Shivnarayan Kabra Vs. The State of Madras it was held that it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including his conduct in obtaining the property. In Hari Prasad Chamaria Vs. 5. In Shivnarayan Kabra Vs. The State of Madras it was held that it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including his conduct in obtaining the property. In Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others it was held that if the facts alleged in the complaint petition amount to breach of contract, a prosecution for an offence of cheating could not lie in the absence of proof of dishonest or fraudulent intention on the part of the accused. In Misrilal Mangilal Maternity and Child Welfare Centre Construction Committee Vs. K. Rajmallu and Others a learned single Judge of the Andhra Pradesh High Court took the view that on a given set of facts a person may by his action incur both civil as well as criminal liabilities. Merely because his civil liability is being enforced, he is not absolved of his criminal liability. In 55 (1983) C.L.T. 24, Lord Match Industries, through its partner A. Pugalanthi and Ors. v. M.S. Selvasekaran, it was held that the distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Mere breach of a contract cannot give rise to a criminal prosecution. Where a charge of cheating rests upon a representation, which is impugned as false and which relates not to an existing fact but to a future event, it has to be shown that the representation was false to the knowledge of the accused at the time when it was made. Every breach of contract does not constitute an act of cheating. Dishonest intention cannot be inferred from the mere fact that the accused person did not subsequently fulfil the promise. In the absence of materials for the satisfaction of the Magistrate that the accused person had any dishonest intention at the time the alleged promise or inducement was made, an offence of cheating cannot be said to have been established. In such cases, the dispute would be purely of a civil nature. In making the above observation, State of Kerala Vs. A. Pareed Pillai and Another and S.B. Goenka Vs. Rajendra Prasad Agarwalla were followed. Also see Prafulla Mohanty Vs. In such cases, the dispute would be purely of a civil nature. In making the above observation, State of Kerala Vs. A. Pareed Pillai and Another and S.B. Goenka Vs. Rajendra Prasad Agarwalla were followed. Also see Prafulla Mohanty Vs. Ashok Kumar Das and G. Laxminarayan Naidu Vs. Chitiboina Yerraiah and Another, . In Subodh Chandra Shome and Others Vs. Durga Madhab Das, has it was held that the necessary ingredients of the offence of cheating are a deception by the accused, that deception must emanate from the accused, there must be dishonest inducement, from the accused to the complainant, and believing such inducement, complainant parted with some property or valuable security and there must be a criminal intention of the accused when the transaction took place. If these ingredients are not satisfied, then the offence of cheating cannot be said to have been committed. In Hatiram Naik Vs. Surendra Kumar Mallik it was held that the essential requirements to attract Section 420 I.P.C. are (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) the mens rea of the accused at the time of making the inducement. For the offence of cheating, there must be a deception which should precede the fraudulent or dishonest' inducement and it must be established that the intention of the accused was dishonest at the time of making the promise. In arriving at the above conclusion, reference was made to Tulsi Ram Vs. State of U.P., and 1974 S.C.C. (Cri.) 652, Anil Kumar Bose v. State of Bihar. 6. The facts alleged in the complaint petition referred to in some detail in para 2 above and the initial statement of the opposite party in support thereof prima facie show that the Petitioners purchased cloth from the opposite party on credit for exhibition and sale at Cuttack and though they promised to pay back a sum of Rs. 1000/- per day they did not do so, somuch so that except on the date of purchase, perhaps with the intention of inspiring the confidence of the opposite party, they paid a sum of Rs. 1000/- and thereafter for a few days they could pay only Rs. 125/-. 1000/- per day they did not do so, somuch so that except on the date of purchase, perhaps with the intention of inspiring the confidence of the opposite party, they paid a sum of Rs. 1000/- and thereafter for a few days they could pay only Rs. 125/-. Without any intimation they left Cuttack at midnight with the goods informing some persons in charge of Hotel Lords that they were leaving for Berhampur. But as a matter of fact when the opposite party went to Berhampur, he did not find the Petitioners there. There is no other material to show that the Petitioners having purchased goods on credit worth Rs. 42,602/- and having repaid only Rs. 1500/- to the opposite party, came to any other settlement with the latter for repayment of the balance amount, nor is there any material at this stage to show that the balance amount or any substantial part thereof had been paid. The Petitioners belonged to Cooch Behar in West Bengal moving from place to place for sale of cloth in exhibitions to whom the opposite party had sold cloth of a huge amount in good faith. But the Petitioners without reciprocating the same just vanished from the scene. These facts induce me to believe that the Petitioners by show of good faith had actually intended from the very beginning of the transaction to cheat and deceive the opposite party which became more explicit by their subsequent conduct. Therefore, in accordance with the principle stated in the case of Lord Match Industries through its partner A. Pugalanthi and Ors. v. M.S. Selvasekaran (supra) there is a prima facie case against the Petitioners u/s 420 I.P.C. and so the impugned order of cognizance cannot be disturbed. The opposite party may have a civil right against the Petitioners for recovery of the balance dues of may actually have taken recourse to a civil proceeding but that does not debar the criminal court to proceed with the case as A prima facie case has been made out on the materials available on the records. 7. For the aforesaid reasons, I do not consider that it is a fit case for interference u/s 482 of the Code and so the criminal misc. case is dismissed. Lower court records be sent back at once. Final Result : Dismissed