JUDGMENT R.G. Sindhkar, J. - This is an application under Section 482 of the Code of Criminal Procedure challenging the issue of process under Section 420 of the Indian Penal Code. The order has been passed by the Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 215190 on his file. 2. Non-applicants 1 and 2 filed a criminal complaint in that Court against the applicant both under Section 138 of the Banking Public Financial Institution and Negotiable Instrument Laws (Amendment) Act, 1988 (hereinafter referred to as "the Act") read with Section 420 of the Indian Penal Code. The facts stated in the complaint are as follows: 3. The accused-applicant is a businessman dealing as a Broker. He was in need of money and as such, he approaced the complainants-non-applicants 1 and 2 and requested them to give him Rs. 10,000/- Both of them gave him Rs. 10,000/- (Rs. 5,000/- each) by cheques. The accused promised to repay the amount on or before 20.8.1989. The accused was thereafter approached by the complainants and was requested to return the amount. The accused issued two post-dated cheques for Rs. 5,000/- each dated 20.8.1989. However, before the due date i.e. 20.8.1989 accused-applicant approached the complainants and told them that he could not arrange for the amount and that the complainants should not present the cheques for realisation and changed the date to 5.5.1990. He also requested the complainants to present the cheques on the said date and till then, he would make arrangements for money. The case of the complainants is that believing the words of the accused-applicant, the complainants presented the cheques for realisation first on 10.5:1990 and later on 28.5.1990. They were, however, not honoured and returned with the endorsement "REFER TO DRAWER". 4. The complainants further alleged that on 3.6.1990 a notice was sent to the applicant-accused demanding the amount due under the cheques. The accused-applicant replied to the said notice letter, but could not pay the amount. It is on these allegations that it was contended that an offence under Section 138 of the Act read with Section 420 of the Indian Penal Code was committed. 5. On' this complaint, it appears that the learned Magistrate issued process not under Section 138 of the Act but under Section 420 of the Indian Penal Code. It is on these allegations that it was contended that an offence under Section 138 of the Act read with Section 420 of the Indian Penal Code was committed. 5. On' this complaint, it appears that the learned Magistrate issued process not under Section 138 of the Act but under Section 420 of the Indian Penal Code. It is this order, as stated earlier, that is challenged by the accused-applicant by this application under Section 482 of the Code of Criminal Procedure. 6. The submission made on behalf of the applicant was that the order deserves to be quashed on the ground that it was a purely civil dispute and merely because payment was not made, it could not amount to an offence under Section 420.of the Indian Penal Code. The fact that loan was advanced and that cheques were issued is not disputed, though the contention is that it was not the applicant who was in need of the money, but one Barhate who was in need of money and for whom the loan was advanced by the complainants through the accused-applicant. In fact, it is not necessary to examine this contention of the applicant at this stage and one will have to go by the recitals in the complaint to find out whether a primafacie case for issue of process has in fact been made out. A detailed reference to the recitals in the complaint has already been made by me above. It is clear that the complainants alleged that the applicant was in need of money and, therefore, the complainants were approached and they advanced a sum of Rs. 10,000/- to the applicant. That was by cheques. Now later on, it is evident that the applicant-accused gave two post-dated cheques of 20.8.1989 by way of repayment of the amount. It is obvious that he was not in a position to pay the amount and, therefore, found that the cheques would not be honoured and approached the complainants and changed the date to 5.5.1990 and also requested the complainants not to present the cheques till then. This arrangement was acceptable to the complainant and they waited to present the cheques again to the Bank which they did in the month of May 1990 and that too twice. This arrangement was acceptable to the complainant and they waited to present the cheques again to the Bank which they did in the month of May 1990 and that too twice. They themselves stated in their complaint in para (6) that a notice dated 3.6.1990 was sent to the applicant-accused and by which they demanded the amount due under the cheques. It is further stated that the accused applicant replied to the said notice "but could not pay the amount". It is also to be seen in the notice dated 3-6-1990 that a demand for money was made and a threat was given that if the amount is not paid, "we will be constrained to initiate legal and criminal action against you through proper authorities". Even in the prayer clause in the complaint it has been mentioned that "this Hon'ble Court may kindly be pleased to enquire into the matter and punish the accused accordingly and help the complainants in recovering the amount due under the cheques." It, therefore, appears that non-payment of the amount by the applicant-accused to the complainants is not on the ground that he had no intention to repay the amount, but on the ground of inability to pay the amount. In this connection, reference could be made to the letter dated 1.6.1990 addressed by the applicant to Shri D.J. Sathe (Complainant no. 1), In that notice he stated that at the time of issuing the post-dated cheques, he was bona fide believing that by the time the same were presented for encashment, certain advances made by the complainants to Shri Barhate and others parties against the Hundi either by him as a Broker or his principals would be honoured. He found that Barhate and other parties failed to honour the said Hundi and amount could not be credited to his account for being paid under the cheques issued by him. He clearly mentioned in that notice that there is no question of deception or fraud or dishonesty on his part. He assured that sincere efforts are being made to release the amount due to the complainants under the Hundi from Barhate and other parties. This was sent by registered post by the applicant-accused to the complainant no. 1. He clearly mentioned in that notice that there is no question of deception or fraud or dishonesty on his part. He assured that sincere efforts are being made to release the amount due to the complainants under the Hundi from Barhate and other parties. This was sent by registered post by the applicant-accused to the complainant no. 1. All this would, in my opinion, clearly go to show that this case was not one of requisite intent contemplated by Section 420 of the Indian Penal Code, but has arisen because of the inability of the applicant-accused to pay the amount. The object of filing this complaint also appears to recover the amount by this coercive process of criminal law. 7. The learned Counsel for the applicant relied upon a decision in The State of Kerala v. A. Pareed Pillai and another. 1. In that decision, the Supreme Court observed "To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise." This appears to be the position in the present case before me also. I, therefore, find that the prayer made on behalf of the applicant for quashing the proceedings is well merited and deserves to be granted. 8. In the result criminal application is allowed and the order of issue of process passed by the learned Magistrate is quashed. Application allowed. 1. 1972 Cr.L.J. 1243