JUDGMENT 1. - This revision petition has been filed under section. 397/401 of Criminal Penal Code against the order dated 21.11.2001 passed by learned Addl. Chief Judicial Magistrate No. 4, Bikaner whereby he passed the order of framing the charges under section 420 & 421 of Indian Penal Code against the accused-petitioner-Multan Chand. 2. The notice of this revision petition was issued to respondents and the matter was listed for final disposal after service of notice. 3. Learned counsel for the petitioner has supplied the copies of the charge-sheet to this Court. 4. Briefly stated the facts of this case are that a complaint was lodged at Police Station Gangasahar by one Bhanwar Lal Srimali, Branch Manager, SBBJ Branch, Bhinsahar stating therein that on 10.7.1974, Multan Chand submitted an application for obtaining loan for purchasing cows and after obtaining the mortgage deed of his agriculture land situated in Khasra No. 99 account No. 82/86 in village Sujandesahar Distt. Bikaner, the Bank sanctioned the loan of Rs. 8,000/- and the mortgage deed was registered before Sub-registrar Office, Bikaner on 26.7.1974. He also mentioned in the complaint that still loan amount of Rs. 26,780/- and interest from June, 1987 is outstanding against Multan Chand. According to the mortgage deed he cannot sale his land which was mortgage in favour of Bank without depositing complete loan amount but Multan Chand has sold out his land to one Smt. Santosh Devi on 3.9.1976 through registered sale deed. 5. On these facts the FIR was lodged and investigation was conducted by the police and after completion of investigation, charge-sheet was filed against the accused-petitioner-Multan Chand under section. 420, 421 & 406 of Indian Penal Code. 6. Learned Magistrate after hearing both the parties discharged the accused-Multan Chand for the offence under section 406 Indian Penal Code and order for framing of the charges under section. 420 & 421 of Indian Penal Code. Against this order, the revision petition has been preferred by accused-petitioner. 7. Learned counsel for the accused-petitioner states that ingredients of Section 420 of IPC are not made out against accused-petitioner. The loan was taken on 10.7.1974 and on that day there was no dishonest and fraudulent intention on the part of the accused-petitioner. He has also contended that this matter is pertaining to breach of contract. Learned counsel for the accused-petitioner also stated that outstanding loan amount of Rs. The loan was taken on 10.7.1974 and on that day there was no dishonest and fraudulent intention on the part of the accused-petitioner. He has also contended that this matter is pertaining to breach of contract. Learned counsel for the accused-petitioner also stated that outstanding loan amount of Rs. 26,780/- has already been deposited by the petitioner on 27.2.1999, therefore, learned Magistrate has wrongly framed the charges under sections. 420 & 421 of Indian Penal Code against the accused. 8. Learned counsel for the petitioner also argued that no ingredients of Section 421 of IPC are made out against the accused as he has not transferred or sold out the property with dishonest and fraudulent intention. Learned counsel for the petitioner states that the order of the learned trial Court may be set aside and accused maybe discharged from the charges framed under sections. 420 & 421 of IPC. 9. Learned Public Prosecutor supported the order of learned trial Court and contended that the accused-petitioner has transferred the agriculture land which was mortgaged with the Bank and this act of the accused-petitioner amounts to cheating. 10. I have considered the rival arguments of both the parties and gone through the order of the learned trial Court as well as the record of this case. This is admitted fact that loan of Rs. 8,000/- was taken by accused from Bank on 10.7.1974 and he has also executed a mortgage deed of his agriculture land situated in Khasra No. 99 in favour of the Bank. This is admitted fact that loan of Rs. 8,000/- was taken by accused from Bank on 10.7.1974 and he has also executed a mortgage deed of his agriculture land situated in Khasra No. 99 in favour of the Bank. The following conditions were enumerated in the mortgage deed:- " 1- v& bl vuqcU/k ds vUrxZr tc rd dqN Hkh _.kh ls cSad dk ysuk 'ks"k jgs] _.kh cfU/kr lEifRr ;k blds fdlh Hkh va'k dks fdlh ds Hkh i{k esa fdlh Hkh izdkj ls vUrfjr ;k ml ij izho Mkyus okyk cU/kdHkkj la/kkj.kkf/kdkj ;k vf/kHkkj ls xzLr ugha djsxk vkSj u dksbZ ,slk dk;Z djsxk ftlls fd cSad dh fdlh Hkh izfrHkwfr ij ;k cSad ds vf/kdkjksa o izR;qik;ksa rights and remedie ij izfrdwy izHkko iM+s ;k mlds ewY; gk gkzl gksA l& cfU/kd cSad ls ikl izR;kHkwr jgus rd cSad ls ys[kk esa iwokZuqefr izkIr fd;s fcuk _.kh d`f"k Hkwfe ij fLFkr dksbZ Hkh Hkou] fuekZ.k dk dk;Z] vU; fQfVaXl] flapkbZ O;oLFkk o vU; d`f"k izlk/kuksa dks fdlh Hkh izdkl ls {kfr ugha gksus nsxk] vkSj u fxjk;sxk gh vkSj u lhu ls gVk;sxk vkSj u fdlh dks vUrfjr djsxkA ;fn cSad blds fy;s vuqefr nsos rks ,slh vuqefr nsos rks ,slh vuqefr dh leLr 'krksZa dk ikyu djsxk rFkk oSlh gh] ml dke esa vkus okyks rFkk mrus gh ewY; dh lEifRr ogka izfrLFkkfir djsxk ;k djok;sxk ;k vUrj.k dh n'kk esa izkIr jkf'k cSad dks _.k pqdkjs esa rqjUr pqdk;sxkA " 11. On the basis of these conditions, learned Magistrate has found that the ingredients of Section 415 are made out and he framed the charges under section 420 & 421 of Indian Penal Code against the accused-petitioner as the petitioner has transferred his property to another person but merely transferring the mortgage property subsequently to another person will not constitute any offence under section 420 & 421 of Indian Penal Code as no ingredient of Section 415 of IPC can be inferred from the subsequent transfers. At the time of taking of this loan, there was no dishonest intention and accused-petitioner never induced dishonestly or fraudulently to the Bank Officers instead he has mortgaged his agriculture land to them. Learned counsel for the petitioner also states that he has already deposited the outstanding loan amount to the Bank. 12. At the time of taking of this loan, there was no dishonest intention and accused-petitioner never induced dishonestly or fraudulently to the Bank Officers instead he has mortgaged his agriculture land to them. Learned counsel for the petitioner also states that he has already deposited the outstanding loan amount to the Bank. 12. Merely transferring of the mortgage property with consideration to another person subsequently will not also amount to cheating because if any property is mortgaged to the Bank, then, any sale or transfer of the property will not affect any mortgage as it is the encumbrance or the first charge over the property, if Bank wants to recover any loan amount, they can recover it as first charge from the mortgage property, therefore any subsequent transfer will not affect any vested rights of the Bank. Moreso, there is nothing on record to show that at the time of taking of this loan, accused-petitioner has any dishonest or fraudulent intention. Any breach of the conditions of the mortgage deed will not amount to cheating, constituting a criminal offence. It is clear that at the time of taking of the loan, there was no dishonest or fraudulent intention, therefore, learned Judicial Magistrate, Bikaner has wrongly framed the charges under section 420 & 421 of Indian Penal Code against accused-petitioner. 13. Framing of charges is not merely a formality but it is a judicial act which the Court has to perform in a judicious way and after taking into consideration the relevant material collected by the investigating agency during the investigation. The test, while framing the charges, is : whether the material on record, if unrebutted, make the conviction reasonably possible? The truth, veracity and effect of the evidence are not required to be meticulously judged nor any weight can be attached to a particular defence taken by the accused. 14. It has to be seen, how, whether any evidence, collected by the prosecution, disclose the ingredients of offence of cheating. Section 420 IPC requires that there must be dishonest intention at the time of taking the loan and that with that dishonest intention he induced the person so decided to delivery any property to any person which he would not have done so if he was not so deceived and which has resulted in a damage or harm to that person. 15. 15. In the present case, there is no evidence on the record to show that accused-petitioner has dishonest and fraudulent intention at the time of taking of this loan nor there is any evidence that accused has induced dishonestly and fraudulently to the officers of the Bank at the time of taking of this loan. Looking to the facts and circumstances of the present case, it appears that this case relates to civil dispute only. 16. From the above discussions, I am satisfied that learned Judicial Magistrate, Bikaner was not justified in framing the charges under section 420 & 421 of Indian Penal Code against the accused-petitioner-Multan Chand. Hence, this revision petition is allowed and the order dated 21.11.2001 passed by the Addl. Chief Judicial Magistrate No. 4, Bikaner is set aside.Revision petition allowed. *******