This application under section 482 Cr.P.C. is directed against the order dated 7.12.78 passed by the learned Judicial Magistrate, 1st Class, Dibrugarh. By the aforesaid order the learned Magistrate framed charge against the two petitioners herein under section 409 I.P.C. The complaint petition was filed by the Manager of the Tea Estate against the two petitioners and after examination of two witnesses charge was framed. Briefly stated, the case as disclosed in the complaint petition is that two petitioners managed the affairs of the firm known as M/s Giridharilal Sardarmall and the said firm has got business in the district of Dibrugarh and other places in Assam. The said firm has got an establishment in the tea garden and from many years passed, it has been discharging duties entrusted by the tea garden. The garden used to issue cheques from time to time to the said firm and the garden used to draw money from the firm as and when required. For this purpose the firm used to get commission from the garden. It has been alleged that on 25th, 26th, 27th, and 28th June, 1974 the garden sent indents for money amounting to s. 6.000/- and odd, but the firm failed to pay the amount Accord­ing to the complainant, a sum of Rs. 71,000/- and odd was in the custody of the firm on behalf of the garden. The complainant has urged that the two petitioners herein in collusion with each other dishonestly and fraudulently mis-appropriated the said sum of Rs. 71,000/- and odd entrusted to the firm. 2. . Two witnesses were examined on behalf of the complainant and four documents were exhibited. On the basis of these materials charge was framed by the learned trial Court. 3. By the present petition, the petitioners have prayed for qua­shing the impugned order. It has been averred that the ingredients necessary to constitute offence under section 409 I.P.C. have not been made out and that the present dispute is of civil nature. It has been specifically stated in the present petition that for realisation of the above sum, a civil suit is pending before the learned Asstt. District Judge. 4. For quashing the present criminal proceeding, I have to examine whether complainant has been able to make out a prima-facie case against the present petitioners and in so doing it is not necessary to scrutinize meticulously the evidence on record. District Judge. 4. For quashing the present criminal proceeding, I have to examine whether complainant has been able to make out a prima-facie case against the present petitioners and in so doing it is not necessary to scrutinize meticulously the evidence on record. I would like to refer in this connection the observation of the Apex Court in C.S.N. Manufacturing Company Ltd vs. State of Maharastra, A.I.R. 1972 S.C. 545 that the responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so and without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. 5. Exhibit - 2 is the statement of account furnished by the petiti­oners to the complainant for the period ending 30.6.74. Exhibit - 3 is a letter from the Director of the Company to the Manager of the Garden and Exhibit - 4 is the letter of the Manager dated 24.7.74 to the firm managed by the present petitioners. The specific case of the complainant is that the petitioners refused to honour the indents sent on 4 dates from 25th to 28th June and the total amount was Rs. 6,135/-. From the Exhibit - 2, the statement of account, I find entries showing payment of money by the firm of the petitioners to the complainant on 24th, 25th, 26th, 27th, and 28th June. I find that on 27th June apart from other amount, a sum of Rs-9,965.55 paise was paid. Similarly on 28th June a sum of Rs.6,405/- was also paid. The last para of the letter by the Manager to the firm of the petitioners, Exhibit-4 runs as follows 8 ''As you have failed to carry out your obligation as garden banker would you please return our balance of Rs.71,346.65 (Rupees seventy one thousand three hundred and forty six and paise sixty five) within seven days of the receipt of this letter”. Thus I find that the relationship between the complainant and the firm of the petitioners was that of a banker. 6. Thus I find that the relationship between the complainant and the firm of the petitioners was that of a banker. 6. In Shanti Prasad Jain vs. Director of Enforcement, A.I R. 1962 S.C. 1764, it was held that when monies are deposited in a bank, the relationship i.e. constituted between the banker and the customer is one of debtor and creditor and not trustee and beneficiary and further the banker is entitled to use the monies without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed between him and the customer. 7. In the case in hand as the relationship between the complainant and the petitioners was that of banker and customer in view of the above ratio, it was a relationship of debtor and creditor and the banker i.e. petitioners are entitled to use the monies and their only liability was to return the amount in accordance with the terms agreed between the parties. As I have already stated a civil suit is pending between the parties, it is not necessary to go into the matter as to whether the amount alleged to have been deposited was returned or not and if not on what ground. The most important ingredient to prove a charge of criminal misappropriation is dis-honest intention. From the statement of account, Exhibit - 2 as stated above even for the periods in question i.e. from the 25th to 28th June, 1974, the petitioners firm made various payments. Merely because some indents were not honoured, it cannot be held that there was dis-honest intention on the part of the petitioners so as to bring home the present allegations within the ambit of section 409 I.P.C. In Exhibit - 2t tic firm of the petitioners clearly indicated that in Case no reply was received within a period the account would be treated as correct. The reply sent by the Manager, Exhibit - 4 was dated 24th July and in the said letter it has not been indicated that no amount was received fop the aforesaid period. These materials are sufficient for this Court to come to the finding that the complainant failed to show dis-honest intention on the part of the petitioners and as such framing of charge was bad in law. 8. These materials are sufficient for this Court to come to the finding that the complainant failed to show dis-honest intention on the part of the petitioners and as such framing of charge was bad in law. 8. An attempt has been made that the order of framing charge being an interlocutory one, the present petition is not maintainable in view of the provisions contained in section 397 (2) Cr.P.C. In support reliance has been placed in the decision of the Supreme Court in V.C. Shukla vs. State, A.I.R. 1980 S.C. 962. The present petition is under section 482 Cr.P.C. and it is settled law that for qu­ashing a criminal proceeding, this is the appropriate section. I do not find any merit in this submission. 9. For reasons stated above, I am of the opinion that the charge was famed without any basis as the complainant failed to make out a prima facie case to attract tne provisions of section 409 I.P.C. Therefore, the impugned order is liable to be set aside which I hereby do. In the result, the petition is accepted and the rule is made absolute.