C. Y. SOMAYAJULU, J. ( 1 ) 1st respondent filed a private complaint against the petitioner for offences under Sections 406 and 418 IPC alleging that he, believing the publicity of the petitioner that Tata Cellular Direct (TCD) card would work out cheaper than STD and that many others benefits would be available to TCD customers, had purchased a TCD Card bearing No. OOOO 14-9295/5 and coupon No. 01038-00003-000216 worth Rs. 3,000/- under invoice No. 5 dated 29-9-2000 for Rs. 2,340/- from Ranjit Reddy (shown as LW2, in complaint) and after purchase he found that that card does not contain the date of manufacture, expiry and instructions for use. After he started using the card he found that call numbers, details, unit rate, pulse rate, etc. , are not being displayed and so he made a request to the petitioner to furnish those details and rectify the defect in the card sold to him. But, petitioner did not respond. He also found that there is difference between the call rate advertised and the rate per call actually charged. Thus finding that the petitioner is indulging in unfair trade practice and had cheated him and the public, he gave a police report but police did not take any action. The learned Magistrate referred the said complaint to police under section 156 (3) Cr. PC. After investigation, police sent a final report stating that no case is made out for offences under Sections 406 and 418 IPC. Thereafter 1st respondent filed a private complaint against the petitioner with the same allegations for the same offence. The learned Magistrate took cognizance of the complaint and issued process. Question the validity of the complaint and the Magistrate taking cognizance hereof this petition is filed to quash the proceedings in CC No. 898 of 2001. ( 2 ) THE contention of Mr. Padmanabha Reddy, learned senior Counsel for the petitioner, is that all the allegations in the complaint even if taken to be true do not make out offences under Sections 406 and 418 IPC and those allegation clearly show that the dispute, if any, is purely of civil nature and contended that 1 st respondent had in fact filed a complaint before the district Consumer Forum, Nizamabad, in cd No. 217 of 2000, which is still pending and that this complaint before criminal court is but an abuse of process of Court. ( 3 ) THE contention of the learned Counsel for 1st respondent is that since the TCD Card purchased by the 1st respondent does not disclose the date of its manufacture, date of its expiry or the details of its user, petitioner violated the provisions of Standards of Weights and measures (Enforcement) Act, 1985 and since petitioner is also indulging in unfair Trade practice attracting the provision of the monopolies and Restrictive Trade Practices act, 1969, and since the TCD Card purchased by the petitioner is not performing the functions which it ought to perform as per the advertisement which apart from being a defect in the goods purchased by the 1st respondent also falls within the meaning of deficiency in service as per the provisions of the Consumer Protection act, and since the 1st respondent was induced by the petitioner to part with his money by an advertisement containing incorrect if not false information the provisions of Sections 406 and 418 IPC are prima facie attracted. Relying on Kamaladevi agarwal v. State of West Bengal and others, 2001 (2) ALD (Crl.) 765 (SC), and Medchl chemicals and Pharma (P) Limited v. Biological E. Limited, (2000) 3 SCC 269 , he contended that merely because remedy in civil Court is also available to the 1st respondent it, by itself, is not and cannot be ground for questioning the complaint, because the acts committed by the petitioner attract the provisions of IPC. , also. Relying on M. N. Damani v. S. K. Sinha and others, 2000 (1) ALD (Crl) 858 (SC), and Haji abdul Mazid v. State of Rajasthan, 2001 crl. LJ 2175, he contended that since learned Magistrate found that there is a prima facie case against the petitioner, this petition for quashing the proceedings is not maintainable. ( 4 ) THERE can be no dispute for the proposition that if the material on record established prima facie offence, the High court would not be justified in quashing the complaint or proceedings merely because a remedy under civil law is available. That is the ratio in all the decisions relied on by the learned Counsel for the 1st respondent. In state of Haryana and others v. Ch. That is the ratio in all the decisions relied on by the learned Counsel for the 1st respondent. In state of Haryana and others v. Ch. Bhajan lal and others, AIR 1992 SC 604 , the supreme Court laid down the following principles for quashing an FIR, or a complaint in a criminal case : (i) Where the allegations made in the first Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence of make out a case against the accused. (ii) Where the allegations in the First information Report and other materials, if any, accompanying the first Information Report do not disclose a cognizable offence, justifying an investigation by Police officers under Section 156 (1) of the code except under an order of a magistrate within the purview of section 155 (2) of the Code. (iii) Where the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where the allegations in the First information Report do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police officer without an order of a magistrate as contemplated under section 155 (2) of the Code. (v) Where the allegations in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In view thereof, it has to be seen whether the averments in the complaint establish a prima facie case for offences under sections 406 and 418 IPC against the petitioner or not. ( 5 ) IF the 1st respondent were to feel that the petitioner violated the Provisions of the Monopolies and Restrictive trade Practices Act and Consumer Protection act, he has to approach the authorities constituted under those Acts and seek appropriate remedies available under those Acts. Violation of the Provisions of those Acts, by itself, does not give raise to a cause of action to the 1 st respondent to file a complaint against the petitioner under Sections 406 and 418 IPC. Hence, reference to the Provisions of those Acts is unnecessary for deciding this petition. ( 6 ) DURING the course of arguments the learned Counsel for 1st respondent admitted that a TCD Card has to be purchased by the Cellular Call Operators (CCOs ). The contention of the learned counsel for the petitioner is that all the ccos. , would be given instructions as to how to insert the TCD Card into the Cellular phone and as to how to operate the Cellular phone. The fact that the TCD Card purchased by the petitioner did not contain a manual of instructions for use, is not and cannot be criminal breach of trust of cheating within the meaning of Sections 406 and 418 IPC because 1st respondent admittedly has been using the Cellular Phone after inserting the TCD Card purchased by him therein. ( 7 ) STANDARDS of Weights and Measures (Enforcement) Act, 1985 (1985 Act) referred to by the learned Counsel for 1st respondent does not and cannot have application to tcd Card (s ). That Act is made to provide for the enforcement of the standard weights and measures for better protection of consumers by ensuring meteorological accuracy in commercial transactions, industrial measurements, etc. It is not even the case of the 1st respondent that the weight or Measure of the TCD Card purchased by him was not according to weight or measure, if any, proclaimed or advertised by the petitioner. The weight and measurement of a TCD Card does not have a bearing in its working, or utility. It is not even the case of the 1st respondent that the weight or Measure of the TCD Card purchased by him was not according to weight or measure, if any, proclaimed or advertised by the petitioner. The weight and measurement of a TCD Card does not have a bearing in its working, or utility. That apart if there is any violation of the provisions contained in 1985 Act, since penal consequences therefor are enumerated in chapter XI thereof, 1st respondent can initiate criminal proceedings against the petitioner for violation of the provisions of 1985 Act, because as per Section 63 of 1985 Act, a person aggrieved can launch prosecution for violation of any of the provisions of that Act. The violation if any, of the provisions of the 1985 Act is not and cannot be an offence under either Section 406 or Section 418 IPC. Therefore, reference to the provisions of the 1985 Act has no relevance for a decision in this petition. ( 8 ) REFERENCE to Sections 7 and 33 of the Standards of Weights and Measures act, 1976 (1976 Act) made by learned counsel for 1 st respondent has no relevance for a decision in this petition. In fact 1976 act has no application to the TCD Card purchased by the 1st respondent. Part II of 1976 Act containing Chapters I to IV and sections 4 to 27 relates to establishment of standards of weights and measures. Chapter I thereof, which relates to standard units, i. e. , as to how length, mass, time, etc. , have to be measured; lays down that weight or measure shall be based on the units of the metric system. Section 7 of 1976 Act lays down that base unit of time shall be "second". Merely because the petitioner collects charges from the TCD Card holders as per the pulse rate, which is fixed in time measured in seconds . Section 7 of 1976 Act lays down that base unit of time shall be "second". Merely because the petitioner collects charges from the TCD Card holders as per the pulse rate, which is fixed in time measured in seconds . Standards of Weights and Measures (Packaged commodities) Rules, 1977 do not apply to the TCD Cards because they (TCD Cards) or any Cellular Card is not included as an item in any of the schedules appended to those Rules, and since Section 33, which is in Chapter I of Part IV of 1976 Act, lays down is that goods, thing or service, to which that part applies, should be in accordance with the standard unit of weight, measure or numeration, i. e. , they should be in metric system i. e. , length in meters, mass in kilograms, time in seconds, electric current in ampere, thermo-dynamic temperature in Kelvin etc. , as mentioned in sections 5 to 13. Part IV of the 1976 Act applies to weights or measures which are intended to be made or manufacture for the purpose of inter-state trade or commerce, (which is defined in Section 2 (m) of that act), etc. Since the 1st respondent did not purchase the TCD Card sold by the petitioner as per its weight or measure, and since the weight and (or) measure of the card purchased by him (1st respondent) has no relation to its utility or the purpose for which he purchased it, the provisions of 1976 Act or the Rules framed thereunder would not apply to the TCD Card manufactured and sold by the petitioner. All these apart since Chapter VI of the 1976 act lays down the penalties for violating the various provisions of the said Act, and since section 72 of the said Act empowers a person aggrieved to launch prosecution, if 1st respondent felt that the petitioner had violated any of the provisions of the 1976 act he could have launched prosecution under the said Act. Violation, if any, of the provisions of the 1976 Act is not and cannot be treated as an offence under Section 406 or Section 420 IPC. Violation, if any, of the provisions of the 1976 Act is not and cannot be treated as an offence under Section 406 or Section 420 IPC. ( 9 ) IN S. W. Palanitkar v. State of Bihar, 2002 (1) SCC 241 , the Supreme court held that if there is nothing to show either in the complaint, or in the sworn statement of the complainant and his witnesses that any property is entrusted to, any of the accused or that the accused had domain over any of the properties of the complaint which the accused had dishonestly converted to their own use, there can be no prima facie case for the magistrate taking the complaint on file for an offence under Section 406 IPC, and issuing process to the accused. The ratio in the said decision applies on all fours to the facts of this case. Since the relation between the petitioner and 1st respondent is that of vendor and Vendee of TCD Card, the purchase of the TCD Card by the 1st respondent does not come within the definition criminal branch of trust i. e. , section 405 IPC and so the Magistrate taking cognizance of the offence under section 406 IPC against the petitioner in respect of the TCD Card purchased by 1 st respondent is improper and hence is liable to be quashed. ( 10 ) THE other offence alleged by the 1st respondent is that the petitioner made him believe that TCD Card would be cheap than the rates charged by Department of telecommunication (DOT) for STD calls and having promised to send a detailed statement of the calls made, failed to send such statement inspite of his repeated requests, and so petitioner committed an offence punishable under Section 418 IPC. 1st respondent filed some third party affidavits showing the calls made from his cell phone, by making use of the TCD card purchased by him and the duration of the call, the called number and amount charged for each of those calls. He also prepared a separate statement and marked it as annexure II , in his endeavor to show how the amount charged by the petitioner for each call is more than the amount mentioned in the advertisement made by the petitioner. He also prepared a separate statement and marked it as annexure II , in his endeavor to show how the amount charged by the petitioner for each call is more than the amount mentioned in the advertisement made by the petitioner. The contention of the learned Counsel for 1st respondent is that the charges per call mentioned in the reply notice got issued by the petitioner, also differ from the charges publicised by the petitioner and so there is prima facie material to show that the petitioner cheated the public in general and him (1st respondent) in particular. It is also his contention that petitioner has been charging normal rates even on Sundays and national holidays, unlike DOT, which charges only half rate during those days. According to the learned senior Counsel for petitioner, the rates mentioned in the reply notice got issued by the petitioner were a mistake and that the petitioner charged the 1st respondent in accordance with the rates mentioned in the chart publicized only. He admitted that the statements of calls made, etc. , detailed in the third party affidavits filed on behalf of the 1st respondent are correct, and contended that even those statements establish that the rates charged by the petitioner work out cheaper than the rate charged by DOT for STD calls, and that petitioner never cheated the 1st respondent and contended that since the complaint does not even disclose the necessary ingredients of cheating as defined in Section 415 ipc the learned Magistrate was in error in taking cognizance of the offence under section 418 IPC against the petitioner. ( 11 ) THERE is no averment in the complaint that petitioner induced the 1st respondent to purchase the TCD Card on an assurance that the charges would be less on Sundays and national holidays in respect of the calls made from the cell phone with TCD Card. So, even if the petitioner charged the calls made on Sundays and national holidays at normal rate, but not at concessional rate, as contended by the 1st respondent, it cannot amount to cheating as defined in Section 415 IPC. So, even if the petitioner charged the calls made on Sundays and national holidays at normal rate, but not at concessional rate, as contended by the 1st respondent, it cannot amount to cheating as defined in Section 415 IPC. The fact that the charges made by the 1st respondent are not in accordance with the rates mentioned in the reply notice got issued by the petitioner, can have no relevance for deciding whether petitioner cheated the 1st respondent because it is not the case of the 1st respondent that he was induced to purchase the TCD Card as per the averments in the reply notice, and since notice by 1st respondent and reply notice by petitioner were subsequent to the purchase of the TCD Card by the 1st respondent. Since, intention to cheat has to be shown to be in existence even at the time when the transaction was entered into, averments in the reply notice got issued by petitioner have to be ignored for deciding this petition. The contention of the petitioner is that all calls would be charged as per the pulse rate , but not in accordance with the actual call time, even though charge per second is notified. It is his contention that charge per second would be notified because sometimes pulse rate can also he one second. For example if plus rate is 30 seconds, if the call time was for 32 seconds, the consumer would be charged for two pulses, but not to 32 seconds only, even in cases where charge per second is notified. He contended that if charges are properly calculated, the calls made via TCD Card facility, do work out cheaper than the charges made by DOT for STD calls. There is no consensus between the petitioner and 1st respondent in respect of distances between towns. The contention of the 1 st respondent is that the distance between the stations should be the aerial distance, but according to the petitioner distance is to be measured on the surface as per the road connection between the towns. The petitioner publicized the rates charged by it, by giving details as to distance between the stations, pulse rate and other details. So in case he had a doubt, 1st respondent should have sought a clarification as to whether rates would be charged as per the distance between the towns by road or by air. The petitioner publicized the rates charged by it, by giving details as to distance between the stations, pulse rate and other details. So in case he had a doubt, 1st respondent should have sought a clarification as to whether rates would be charged as per the distance between the towns by road or by air. He also should have obtained a clarification regarding pulse rate even before he purchased the TCD. From the calculations made and shown by the petitioner in respect of the calls mentioned in the third party affidavit filed by the 1st respondent, it is seen that they are in accordance with the charging policy chart filed as annexure No. 1 by 1st respondent. From the facts and circumstances of the case it cannot even prima facie be said that the petitioner had sold the TCD Card with an intention to cheat the petitioner. Admittedly the 1st respondent filed a complaint before the consumer reedressal Forum claiming damages against the petitioner for the alleged deficiency of service. Not, furnishing user call details, even if there were an agreement to so furnish it, does not amount to cheating but may be a deficiency in service for which there a remedy in another forum. Therefore, no prima facie case for an offence under Section 418 of IPC is made out by the 1st respondent against the petitioner and so the learned Magistrate erred in taking cognizance and issuing process to the petitioner for an offence under Section 418 ipc. ( 12 ) IN Medchl Chemicals and Pharma (P) Limited case (supra), relied on by the learned Counsel for 1st respondent it is held that merely because the act alleged can also give rise to a civil action or criminal compliant cannot be quashed. In M. N. Damani case (supra) it is held that when prima facie offence is established, criminal proceedings cannot be quashed. In Haji abdul Mazid case (supra) it is held that nondelivery of possession of a disputed land and non-completion of the process of registration cannot be said to be a matter of purely civil in nature and would come under criminal breach of trust. None of the above decisions apply to the facts of this case, because even if all the averments in the complaint are taken to be true, no offence under Section 406 or 418 IPC is made out. None of the above decisions apply to the facts of this case, because even if all the averments in the complaint are taken to be true, no offence under Section 406 or 418 IPC is made out. ( 13 ) IN the result, the petition is allowed and the proceedings against the petitioner for offences under Sections 406 and 418 ipc are quashed. The observations made in this order are made only for the disposal of this petition. The proceedings pending or to be instituted by the 1st respondent against the petitioner have to be decided by the various Fora on the strength of the merits of those cases, uninfluenced by the observations made in this order.