M. S. PARIKH, J. ( 1 ) THIS Misc. Application arises out of the process issued by the learned Metropolitan Magistrate Court No. 5 Ahmedabad in the form of summons by admitting the complaint of opponent No. 1 and registering it as Criminal Case No. 647 of 1987 ( 2 ) THE facts appearing from the complaint annexed with the Application may briefly be state below : ( 3 ) THE applicant are respectively shown as the accused Nos. 1 and 2 in the compliant by the opponent No. 1. According to opponent No. 1/08/1986 the accused Nos. 1 approached him at his office at Ahmedabad and represented that he wants to appoint the opponent Nos. 1 as the stockist for the city of Ahmedabad in respect of the product of the firm of the accused No. 1. He also represented and promised that the firm of accused No. 1 would make publicity of the product (Fabasha Mosquito repellent Cake) in radio and newspapers and he would issue posters banners and cinema slides for that purpose. He also represented and promised that he would depute a sales representative of his firm and would assist the opponent No. 1 in the work of sales. Reposing confidence on the promises given by the accused No. 1 the complainant-opponent No. 1 agreed to become the stockist of the aforesaid product of the firm of accused No. 1. Thereafter the opponent No. 1 had placed order for 11 cases comprising 3 970 Fabasha Mosquito Repellant Cakes of the value of Rs. 19 872 and tendered this amount of Rs. 19 872 to the accused persons alongwith letter dated 9/09/1986 and also informed them that it was absolutely necessary to give publicity of the products in the newspapers Sandesh Gujarat Samachar and on the radio. Thereafter the opponent No. 1-complainant informed the accused persons on a trunk call that the goods which were supplied as aforesaid could not be sold due to insufficient publicity. On 18/09/1986 the complainant-opponent No. 1 wrote a letter to the accused persons informing them that even the publicity on radio had stopped and there was no publicity in the newspapers in so far as the aforesaid product was concerned and that it was causing a great difficulty in selling the said product. The opponent No. 1 wrote a reminder letter dated 26/09/1986 in this respect but of no avail. The opponent No. 1 wrote a reminder letter dated 26/09/1986 in this respect but of no avail. ( 4 ) ON the 1 2/10/1986 the accused represented and gave promise to the opponent No. 1 that unsold goods might be returned and against receipt of such goods immediate payment would be made. Relying upon such a promise and statement made by the accused complainant returned the goods by road transport as per the L. R. No. 74703 on 1 6/10/1986. The accused persons were informed by the complainant that the payment should be made by draft immediately. They received back the goods but no payment was made by them with the result that the complainant contacted the accused No. 1 on telephone on 23/10/1986 when the accused No. 1 stated and promised that on 27/10/1986 the complainant would receive the draft. As the complainant did not receive the draft as promised the complainant wrote letters dated 27-10-1986 and 29-10-1986 for effecting payment. The said two letters followed by letter dated 3-11-1986 sent with a messenger Shri M. K. Shah met with the same fate. The complainant therefore wrote letter dated 8-11-1986 and demanded the amount of the returned goods. Thereupon the accused issued a cheque bearing No. 1068997 dated 20-12-1986 drawn on Indian Overseas Bank of Baroda Branch. The said cheque bounced back with an endorsement refer to drawer. Thereafter the complainant gave notice dated 11 to the accused persons by Registered A. D. Post and the accused persons did not even reply the said notice. ( 5 ) THE complainant has then proceeded to state the facts about the Sales Tax Nos. which were falsely mentioned by the accused persons on the credit memo. ( 6 ) UNDER the aforesaid facts and circumstances the complainant alleged that by making false representations and promises with an intention to deceive the complainant from time to time as aforesaid they have in fact deceived the complainant. ( 7 ) AFTER recording the statement of the complainant the learned Metropolitan Magistrate issued process in the form of summons as stated above. The said process was followed by issuance of non-bailable warrants as in the meantime in spite of the fact that the bailable war rants were served the accused persons did not appear before the learned Metropolitan Magistrate. The said process was followed by issuance of non-bailable warrants as in the meantime in spite of the fact that the bailable war rants were served the accused persons did not appear before the learned Metropolitan Magistrate. ( 8 ) IT is in the background of the aforesaid facts that the applicants-accused have moved this Court u. /s. 482 of the Code of Criminal Procedure hereinafter refer red to as the Code if necessary. The order of issuance of process as aforesaid is subjected to the challenge on two grounds namely (i) the facts disclosed in the complaint read as a whole disclose a dispute of a civil nature and therefore no process could have been issued and (ii) there are certain false statements made by the complainant in the complaint. ( 9 ) XXX xxx xxx ( 10 ) THE first ground namely that the dispute which is disclosed from the complaint read as a whole is a dispute of civil nature may now be considered. It is not shown in the present application itself as to what was the dispute for the accused persons to raise in respect of the non-payment of the value of the goods returned by the complainant. That apart whether there was intention to deceive on the part of the accused persons when the goods were returned and accepted back can be located on the facts narrated in the complaint itself. It is different matter whether complainant is not in a position to establish such facts at the trial. However complainant has made allegations in the complaint about several representations and promises made by the accused No. 1 at various stages. One of such stages is the stage when the goods were sought to be sent back and the assurance or promise which was made at that point of time is that the payment should be made forthwith. The second assurance or promise that has been stated to have been made by the accused No. 1 to the complainant is on 23-10-1986 when he informed the complainant on telephone that on 27-10-1986 the complainant would receive the draft for the goods returned and received back by the accused No. 1. The complainant has alleged that that promise has failed and it was followed by several letters having been written by the complainant to the accused. The complainant has alleged that that promise has failed and it was followed by several letters having been written by the complainant to the accused. The stage then is one of issuance of cheque by the accused persons to the complainant and that also bounced back. In such facts and circumstances as appearing on the face of the complaint it cannot be said at this stage that at the time making of the various representations or promises the ingredient of dishonest intention was lacking. ( 11 ) IT has been submitted on behalf of the applicants - accused that merely because the cheque which was issued at the last stage bounced back it cannot be said that there was a dishonest intention of not making payment for the goods which were received back by the applicants. In this respect Mr. Shelat learned Advocate for the opponent No. 1 has relied upon a Single Judge decision of the Delhi High Court in the case of Bhola Nath Arora v. The State 1982 Criminal Law Journal p. 1482. Head Note (A) reveals that when an accused had paid certain amounts by means of demand draft for the goods supplied and for the balance amount certain cheques delivered by him to the dealer were dishonoured on different dates and the bank account showed that at no stage any attempt was made by the accused to pay in sufficient amount for encashment of the cheques such matter would be sufficient to afford a ground for presuming that the accused had con mitted an offence u. /s. 420 of I. P. C. Reference has been made to illustration (f) to Section 415 of the Indian Penal (Code which section defines cheating in para 6 of the citation. Relying upon Keshavji Madhavji v. emperor AIR 1930 Bombay p. 179 it has been held by the Delhi High Court that on its plain language it is manifest from this illustration that what is material is the intention of the drawer at the time the cheque is issued. and the intention has to be gathered from the facts on the record. If from the circumstances it is established that the failure to meet a cheque was not accidental but. was the the consequence expected by the accused to cheat the presumption would be that the accused intended to cheat. and the intention has to be gathered from the facts on the record. If from the circumstances it is established that the failure to meet a cheque was not accidental but. was the the consequence expected by the accused to cheat the presumption would be that the accused intended to cheat. Following observations of Broomfield J. from Keshavji Madhavji (supra) were quoted and relied upon by the Delhi High Court:"what the prosecution has to do. I take it in a case of this kind is to establish facts which point prima facie to the conclusion that the failure to meet the cheque was not accidental but was a consequence expected and therefore intended by the accused. It will then be for the accused to establish any facts there may be in his favfavour which are specially within his knowledge and as to which the prosecution could not be expected to have any information". ( 12 ) MR. Shelat also cited Allahabad decision on the case of Lal Bahadur v. emperor A. I. R. 1933 Allahabad p. 42. the head note whereof indicated that the existence of a civil remedy does not exclude trial by a Criminal Court of an offence. As stated above. no civil dispute in so far as the petitioners are concerned is yet presented or disclosed from the complaint. It is here that the reference is required to be made by Mr. Shelat to the decision in Lal Bahadur (supra) for pointing out a difference between a dispute and a remedy. Be that it may in the facts and circumstances of this case noted above appearing from the complaint it clearly appears prima facie that there is no abuse of process of the Court. (NVA) Rule discharged. .