JUDGMENT : R.K. Dash, J. - The Petitioner is accused in ICC No. 53 of 1996 pending on the file of learned S.D.J.M., Berhampur. Opposite Party, as a complainant filed the aforesaid complaint alleging that the accused purchased 100 bags of horse gram from it on condition that he would make payment of the price within a month. The total amount due to the complainant was Rs, 34,510/- out of which he paid a sum of Rs. 25,000/- by demand draft. He failed to pay the balance amount of Rs. 9,210/- for which the complainant issued advocate's notice, to which he paid a deafer. Since this non-payment amounts to breach of contract, he is liable for punishment u/s 420, I.P.C. 2. Learned S.D.J.M., Berhampur sent the complaint petition to the police as provided u/s 156(3), Code of Criminal Procedure As no report was received, Learned Magistrate held enquiry u/s 202, Code of Criminal Procedure on completion whereof, he passed the impugned order on 20.9.1997 taking cognizance of the offence u/s 420, I.P.C. against the accused and issued summons for his appearance. Pursuant to the summons, the accused entered appearance through his Counsel u/s 205, Code of Criminal Procedure and filed a petition urging that since a reading of the complaint petition does not make out a case of cheating, the order of cognizance be quashed. 3. Upon hearing the parties, learned Magistrate passed a very peculiar order rejecting the petition solely on the ground that since the accused has not entered appearance, he was not inclined to entertain his petition. Aggrieved by both the orders of taking cognizance of the offence and refusing to recall the said order, the present revision is filed. 4. 'Cheating' defined in Section 415, I.P.C. reads thus: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'Cheat'. 5. To constitute the offence of cheating, the following ingredients are to be satisfied. 5. To constitute the offence of cheating, the following ingredients are to be satisfied. (i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. (iii) Some illustrations are given in Section 415, I.P.C. of which is may be useful to refer to illustration No. (d), which is as under: (d) A, by tendering in payment for an article, a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally decides Z, and thereby dishonestly educes Z to deliver the article, intending not to pay for it. A cheats. 6. In the case in hand, it is the complainant's version that accused had purchased horse gram for worth of Rs. 34,510/- out of which he had paid a sum of Rs. 25,000/- by demand draft. Non-payment of rest amount in spite of demand led the Plaintiff to file the case. Had it been the case of the complainant that the accused having no capability to pay the entire sum, dishonestly induced him to deliver the goods and ultimately obtained goods intending not to pay for it, then the accused would have been liable for cheating. Since a large sum out of the total amount had admittedly been paid by the accused, for non-payment of the rest, no criminal liability can be attributed to him. Such non-payment is cognizable by the Civil Court and no criminal action can lie. 7. In view of the discussions made above, the revision is allowed. The impugned order passed by the learned Magistrate taking cognizance of the offence u/s 420, I.P.C. against the accused in the aforesaid complaint case is quashed. Final Result : Allowed