Judgment B. N. Agrawai, J. 1. This application has been filed for quashing prosecution of the petitioner under Sec.7 of the Essential Commodities Act (hereinafter referred to as the Act) for contravention of Clause 4 of the fetiliser Control Order, 1957 (hereinafter referred to as 1957 Older) issued by the Central Government, which has been repealed and replaced by Fertiliser control Order, 1985. 2. It appears that on the basis of the written report submitted by the block Development Officer, Dinapur, a case was registered at the police station for prosecution of the petitioner under Sec.7 of the Act and sum and substance of the prosecution case was that the petitioner had issued cash memo relating to fertiliser on 2-2-1v84 and 14-2-1984 in the names of non-existing persons. The police after registering the case took up investigation and on completion thereof submitted chargesheet, whereupon the learned special judge has taken cognizance and summoned the petitioner to face trial. Hence this application. 3. The only point raised by learned counsel appearing on behalf of the petitioner is that the aforesaid facts do not constitute contravention of any order issued under Sec.3 of the Act much less the 1957 Order making the petitioner liable to be prosecuted under Sec.7 of the Act. In this connection i may usefully refer to Clause 4 of the 1957 Order which runs thus : "every manufacture or a dealer shall give a cash or credit memorandum to a purchaser of fertiliser in such form as the Controller may direct. " (Emphasis added) From a bare perusal of the aforesaid clause, it would appear that a dealer is required to give a cash or credit memorandum to a purshaser of fertiliser in such form as Controller of fertiliser may direct. It has been categorically stated in this application that the Controller of fertiliser has not given any such direction. Question arises as to whether a dealer is liable to issue any cash memo even though no form was prescribed by the Controller and for non-issuance of cash memo or any defect in the cash memo a person can be said to have contravened Clause 4 of the 1957 Order so as to make him liable under Sec.7 of the Act. From Clause 4 aforementioned it would be plain that if the Controller has not given any direction prescribing the form of cash or credit memorandum, in that event the requirement of issuing cash memo in Clause 4 of the 1937 Order cannot operate. Prescription of form by the Controller is sine qua non for casting an obligation upon a dealer to issue cash or credit memorandum under Clause 4 of the 1957 Order. In view of the foregoing discussions, I am clearly of the view that the petitioner cannot be said to have contravened Clause 4 of the 1957 Order. 4 Another question which falls for consideration is as to whether the petitioner can be said to have contravened provisions of any other orders issued under Sec.3 of the Act. In this connection, 1 may say that there are three other orders issued under Sec.3 of the Act relating to fertiliser ; one is Fertiliser Control Order, 1985 (hereinafter referred to as 1985 Order) issued by the Central Government and the other two are Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 (hereinafter referred to as the display Order) and Bihar Trade Articles (Licenses Unification) Order, 1984 (herein- after referred to as the unification Order) both issued by the Bihar government, in all these three orders, there is provision for issuance of a cash memo. 5. So far 1985 Order is concerned, in my view, the same has no application to the present case, as this order came into force on 25-9-1985 much after the dates of occurrence in the present case, which are 2-2-1984 and 14-2-1984. Moreover, the provision of issuing cash or credit memorandum in 1985 Order is on lines similar to those in 1957 Order, but since 1985 Order has no application to the case in hand, it is not necessary to examine the question as to whether form thereunder has been prescribed by the Controller or not. 6. Coming now to the Display Order, it may be stated that in the original Display Order, fertiliser was not there in the Schedule. Subsequently, by Notification No. G. S. R.15 dated 8th of May, 1980, fertiliser (whether inorganic, organic or mixed) was added in the schedule of that Order as item No.34. 6. Coming now to the Display Order, it may be stated that in the original Display Order, fertiliser was not there in the Schedule. Subsequently, by Notification No. G. S. R.15 dated 8th of May, 1980, fertiliser (whether inorganic, organic or mixed) was added in the schedule of that Order as item No.34. The validity of this notification was challenged before a division Bench of this court in the case of Madhusudan Prasad and others V/s. The State of Bihar and others, (Criminal Writ Jurisdiction Case No.212 of 1981 decided on 25th of November, 1981) wherein this court has struck down the same on the ground that power to issue an order under Sec.3 of the act relating to fertiliser has not been delegated to any State Government much less Bihar Government by the Central Government which could have delegated such powers to the State Government under Sec.5 of the Act. This being the position it cannot be said that the petitioner has contravened any of the provisions of the Display Order. 7. Next comes the question of violation of the Unification order which came into force on 19-4-1984, i. e. , after the dates of occurrence in the present case, as such, the said order has no application to the present case. Moreover prima facie, I am of the view that Unification Order is suffering from the same defect as the Display Order relating to fertiliser therein and is also liable to be struck down as the State Government has not been delegated with the powers to issue an order under Sec.3 of the Act with regard to fertiliser. But since it is not necessary to record any concluded opinion on this question in the present case, I refrain myself from recording the same. Thus, I am clearly of the view that the petitioner on the facts alleged eannot be said to have contravened any order issued under Sec.3 of the act; as such, his prosecution under Sec.7 of the Act is wholly unwarranted. 8. The last question that arises is as to whether the petitioner can be said to have contravened any provision of the General Law, viz. the Penal code. 8. The last question that arises is as to whether the petitioner can be said to have contravened any provision of the General Law, viz. the Penal code. By issuing cash memo in the names of fake persons as alleged, the petitioner cannot be said to have committed offences against State or public tranquillity, relating to pubtic servants, elections, contempt of lawful Authority of public servants, false evidence and against public justice, coins and government stamps, weighis and measures, affecting public health, safety, convenience, decency and morals, relating to religion, affecting human body, relating to marriage, defamation, crimimal intimidation, insult and annoyance and criminal breach of contract of service, which have been enumerated in different Chapters of the Penal Code. Chapter XVII of the Penal Code deals with offences against property. Facts disclosed do not constitute offences of theft, extortion, robbery, dacoity, criminal breach of trust, criminal misappropriation of property, mischief, criminal trespass and the receiving of stolen property mentioned in this chapter. A question arises as to whether the petitioner can be said to have committed an atfence of cheating which is one of the offences under this chapter. One of the pro-requisites for the offence of cheating is that the accused must act either fraudulently or dishonestly. Sec.25 of the Penal Code defines the expression fraudulently to mean an act done with intent to defraud a person. In my view, if a dealer issues cash memo in the name of fake persons, by that It cannot be said that he is defrauding or attempting to defraud either any private citizen or any body else as he is not required under any law to issue a cash memo. A cash memo in that event remains private document of a dealer and for all practical purposes the same is as good as a waste paper. If upon a waste paper an incorrect statement is made, the same cannot amount to defrauding any body. Likewise, the expression dishonestly which is another pre-requisites for the offence of cheating has been defined under Sec.24 of the Penal Code to mean an act done with the intention of causing wrongful gain to one person and wrongful loss to another person. Likewise, the expression dishonestly which is another pre-requisites for the offence of cheating has been defined under Sec.24 of the Penal Code to mean an act done with the intention of causing wrongful gain to one person and wrongful loss to another person. In my view, by making incorrect statement in the cash memo which a dealer is not required to issue under law, he cannot be said to have wrongfully gained in any manner nor it can be said that by such act of a dealer of wrongful loss has been caused to any body. This being the position, I am of the view that the facts disclosed do not constitute any offence of cheating Chapter XVIII refers to offences relating to documents and property marks. No offence either relating to property or other marks or currency notes and bank- notes is made out. So far as the offence of forgery tailing under this chapter is concerned on the facts alleged, no such offence is disclosed. Forgery has been denned under Section 463 of the Penal Code to mean making a false document with intention to cause damage or injury to public or any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud. Under section 464 of the Penal Code, a person can be said to make a false document if he acts dishonestly or fraudulently. While dealing with the offence of cheating.1 have already observed that the act of the accused in the present case cannot be said to be either fraudulent or dishonest. This being the position, In my view, the facts ditclosed do not constitute even an offence of forgery. No other provision of the Penal Code could be placed before me showing that the act of the accused is punishable ihersunder. Therefore, i hold that on the facts disclosed, the petitioner cannot be said to have committed any offence whatsoever under the Penal Code. For the foregoing reasons, I have no option but to quash the prosecution of the petitioner in the present case, as continuance thereof would amount to an abuse of the process of court. 9. In the result, this application is allowed and the prosecution of petitioner is hereby quashed. Application allowed.