Judgment Bhuvaneshwar Prasad, J. 1. This application under Sec.482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 1-9-1987 passed by Shri N. K. Sinha, Sub-Divisional Judicial Magistrate, ranchi taking cognizance of the offence against the petitioners under Sec.418/ 420 of the Indian Penal Code in complaint Case No.40/87. 2. Opposite Party No.2 is the complainant. He is Manager of Ranchi mineral Processing Industries, Lake Avenue, Ranchi. He had supplied steam coal worth Rs.45,000 to the petitioners and it was agreed that the payment of the bills will be made full in one lump-sum. Since then Opposite Party No.2 approached the petitioners for the payment of the dues and ultimately on 20-4-1987 petitioner No.1 had issued a cheque drawn on Bank of India, Jhumpura Branch, District Keonjhar (Orissa) for a sum of Rs.20,000 towards the dues. When this cheque was presented to this branch of Bank of India through punjab National Bank, in which the Opposite Party No.2 had account, it was returned back with the endorsement "not arranged for". On enquiry Opposite party No.2 could learn that on the day on which this cheque was issued the petitioner had no money in the Account in the aforesaid Bank. Thus, Opposite party No.2 alleged that he was cheated. It was on this complaint petition that the cognizance was taken on 1-9-1987. 3. In this petition the petitioners have contended that the allegations are vague inasmuch as it has not been disclosed when the coal in question was supplied or when the cheque was presented for payment. In the complaint petition it has also not been disclosed which of the two petitioners had issued the cheques, though only the date of occurrence has been shown to be 29/4/1983. The petitioners have contended that they have got a number of document to show that even after 29/4/1983 they had made payments to Opposite Party No.2 on several dates upto 7/10/1986. It was further contended that the dispute between the parties, if any, can at best said to be a dispute of civil nature. There is no element of deception from the start of this contract. Hence, no offence under section 420 of the Indian Penal Code is made out, 4. Opposite Party No.2 was noticed and heard in the matter. Before proceeding further I would like to examine the complaint petition. There is no element of deception from the start of this contract. Hence, no offence under section 420 of the Indian Penal Code is made out, 4. Opposite Party No.2 was noticed and heard in the matter. Before proceeding further I would like to examine the complaint petition. Paragraph 3 of the complaint petition shows that the complainant (Opposite Party No.2) had sent the stamp coal to the accused (the petitioners) on the condition that they would make the payment of the entire bill at a time. From this it would appear that the contract between the parties was that the coal was to be supplied to the petitioners on credit and the payment was to be made subsequently. It further appears from the complaint petition that though a cheque for Rs.20,000 was issued by the petitioners the same could not be honoured. It further appears from the complaint petition that the petitioners by making a false representation regarding their further conduct has obtained the Coal from the Opposite Party no.2. From these facts it would appear that the payment of the price of the coal was not a condition precedent to the sale of the coal so at the initial stage of the case it cannot be said with an amount of certainty that the petitioners had intention to cheat. It may be mentioned here that though in Paragraphs 7 and 8 of the complaint petition it has been stated that the accused had decieved the complainant fraudulently and dishonestly by including the complainant to supply coal, the element of deception has to be deduced from the conduct of the parties notwithstanding any such allegation made in the complaint petition. 5. Shri T. R. Bajaj the learned Advocate appearing on behalf of the petitioners has submitted that the coal was already delivered before the issue of cheques, On this basis he has contended that the terms of the contract between the parties was that the payment was to be made subsequently in one lump-sum. This according to him shows that the contract between the parties was not that the goods were to be supplied against cash payment. He has further contended that the parties were having commercial transaction and the elements of an offence under Sec.415 of the Indian Penal Code have not been made out. This according to him shows that the contract between the parties was not that the goods were to be supplied against cash payment. He has further contended that the parties were having commercial transaction and the elements of an offence under Sec.415 of the Indian Penal Code have not been made out. In this connection shri Bajaj has relied on the case of H. K. Sahay V/s. The State, 1982 BBCJ 447 (DB ). This is a Division Bench decision of the court. Ia this case H. K. Sahay was an agent for the sale of Lottery Officer at Ranch! and Hazaribagh against the cheques issued by him. It was found that on different occasions he issued 30 cheques to D. L. B. Ranchi which were not honoured by the Bank. and Accordingly, the first information report was lodged. In another case relating to Hazaribagh he issued 42 cheques which could not be honoured. In this case also the District lottery Officer, Hazaribagh had issued the Lottery Tickets to the petitioners against the payment sought to be made through cheques. These cheques were dishonoured and, even when they were revalidated by H. K. Sahay they could not be honoured by the Bank. It was held by a Bench of this court that under these circumstances no case under Sec.420 of the Indian Penal Code is made out inasmuch as there was no fraudulent or dishonest intention from the very start of the transaction since no such thing has been alleged in the first information report. Relying on this decision Shri Bajaj has submitted that in the present case also no case under Sec.420 of the Indian Penal Code is made out. 6. Shri Bajaj has also relied on the case of Mr. Veena Ram V/s. Punam chand Bothra, 1984 PLJR 424 : 1984 BU 339. It was held in this case by this court that mere dishonour of cheque cannot in all cases amount to the commission of the offence of cheating as it does not per se constitute such offence. For the dishonour of a cheque becoming an act of cheating, it is necessary that the deception was caused on account of the cheque. 7. In the present case it does not appear that any deception was practised from the very beginning. For the dishonour of a cheque becoming an act of cheating, it is necessary that the deception was caused on account of the cheque. 7. In the present case it does not appear that any deception was practised from the very beginning. As a matter of fact the sale on credit appears to be agreed upon between the parties and the payment was to be made at one time. Hence, the circumstances do not show that the contract between the parties was for the sale of the goods against cash payment. So far as the allegation in the complaint petition that there was fraudulrnt and dishonest intention on the part of the petitioners from the very beginning is concerned the circumstances of the case show otherwise. It has, however been held in the case of Harnarain Sah V/s. Tribeni Lai, 19 -2 BLJR 40 that a mere allegation of fraud or cheating is not enough. The facts themselves should show that there has been fraud or cheating. 8. On behalf of the Opposite Party No.2 Shri P. Kumar has submitted] that in a situation like this the offence under Sec.420 of the Indian Penae code is made out. In support of his contention he has placed reliance on thn case of Bhola Nath V/s. State, 1982 Cri LJ 1482. This is a single Bench Decisio" of Delhi High Court. From the facts it appears that the accused had pai certain amounts by means of Demand Draft for the goods supplied and for the balance amount certain cheques were issued by him which were dishonoured. I; further appears that at no stage the accused made any attempt to deposit sufflcien amount in his account for the encashment of the cheques. It was held that these circumstances would be sufficient to effort a ground for presuming that the accused has committed an offence under Sec.420 of the Indian Penal Code. In this connection, it may be stated that in the earlier part of my judgment I have already referred to a Division Bench decision of this court which does not subscribe to this view of the Hon ble Delhi High Court. In this view of the matter it cannot be preferred to the Division Bench decision o; this court. 9. In this connection, it may be stated that in the earlier part of my judgment I have already referred to a Division Bench decision of this court which does not subscribe to this view of the Hon ble Delhi High Court. In this view of the matter it cannot be preferred to the Division Bench decision o; this court. 9. From the discussions made above it is clear that the cognizance taken in is case against the present petitioners is not in terms of law and therefore it has to be quashed. 10. In the result this application is allowed and the cognizance taken on 1/9/1987 in Complaint Case No.40/87 by Shri N. K. Sinha, Sub-Divisional judicial Magistrate, Rancbi and also all subsequent proceedings in this case are hereby quashed.