JUDGMENT Hon’ble Kashi Nath Pandey, J.—This revision has been filed against order dated 24.6.2009 passed by Chief Judicial Magistrate, Mathura in case No. 1905 of 2009, State of U.P. v. Ashok and others, under Sections 420, 406 and 504, IPC, P.S. Kotwali, District Mathura by which the application of the revisionists for discharge has been rejected. 2. I have gone through the order in revision. According to the prosecution case it is admitted that for the sake of purchase of plot the amount has been paid through cheque in 1988. The explanation of the accused that the said amount has been invested by her was not accepted by the Court but it was clear in the mind of the parties that the amount was not being invested for the sake of any income but clearly for the sake of obtaining plot. It has also been admitted that she had not been given plot nor her amount has been returned. In the petition moved by the revisionists for discharge, it has been stated that after disposal of dispute of the company payment shall be made to all the investors. It has also been stated that the company is in financial crisis. 3. From the First Information Report and collected evidence oral and documentary, charge-sheet has been submitted. On the basis of the evidence collected by I.O. the trial Court reached to the conclusion that there are sufficient material showing prima facie case against the revisionists-accused for framing charge at the stage of framing of charge. 4. It is not expected from the Magistrate to go into the merit of the case. The learned Court discussed the provision of Sections 415, 420 and 406, I.P.C. and found the present case is within the framework of those sections. At the stage of charge the evidence is not to be scrutinized and analysed on merit. Coming to the stage of trial it has to be analysed and accordingly the application was dismissed by the Chief Judicial Magistrate by order dated 24.6.2009. 5. I have also gone through the grounds of revision in which it has been mentioned that the evidence on record is not sufficient to convict the appellant under Sections 420, 406 and 504, I.P.C. but at the stage of charge, if the evidence collected by I.O. if not rebutted, the case may end into conviction, then charge can be framed. I have also gone through the grounds of revision in which it has been mentioned that the evidence on record is not sufficient to convict the appellant under Sections 420, 406 and 504, I.P.C. but at the stage of charge, if the evidence collected by I.O. if not rebutted, the case may end into conviction, then charge can be framed. If the evidence in the record is not rebutted the case may end into conviction. 6. Learned counsel for the revisionists argued that as the company is in financial crisis, after liquidation the due amount of each person may be given. It has also been argued that the defence of the revisionists should also be considered while framing charge. It has also been argued that the respondent has got remedy to recover the amount by way of filing company winding petition. It is not denied by the revisionists that the complainant has deposited the cheque amounting of Rs. 92,000/- dated 8.3.1988 in favour of Karmyogi Builders Pvt. Ltd. office at Delhi. Learned Magistrate without application of judicial mind and without perusing the evidence on record passed the impugned order in mechanical and arbitrary manner. The allegation contained in the FIR and evidence on record is civil in nature. The evidence collected by I.O. has not demonstrated any prima facie cognizable offence against the revisionists. No case under Sections 420, 406 and 504, IPC is made out. The evidence produced by the revisionists during the discharge has not been considered which is against the law laid down by the Hon’ble Apex Court in Rukmini Narvekar v. Vijay Satardekar and others, 2008(14) SCC 1 . It has also to be noted that in discharge application revisionists categorically mentioned that one of the director of the company, Mr. Viswa Nath Agarwal was claiming himself to be Chairman and Managing Director of the company. Due to this reason, one Mr. Sandeep Tundon appointed as arbitrator and awarded the award in the year 2000 against which writ petition before the Hon’ble High Court Delhi was preferred which was dismissed, against which SLP was filed which is still pending for disposal. On the basis of the litigation assets of the company could not be transferred for alienated i.e. the cause of economic crises in the company. Company has never refused to refund the money. Nor ever stated in regard of non-delivery of plot. On the basis of the litigation assets of the company could not be transferred for alienated i.e. the cause of economic crises in the company. Company has never refused to refund the money. Nor ever stated in regard of non-delivery of plot. Only on the basis of delay of allotment of plot the case was lodged. 7. In rebuttal of the above argument of the revisionists, the learned counsel for the opposite party-complainant argued that there is no bar for filing criminal complaint on account of alternative civil remedy, whereas the question of bona fide conduct of the revisionists are concerned, individually complainant was misrepresented. From the very petition the revisionists is diverting the facts stating that investment has been made by the complainant in place of depositing the money for delivery of plot. 8. Learned counsel for the opposite party has submitted 2009(3) ADJ 701 (SC), Smt. Rumi Dhar v. State of West Bengal and another, in which Hon’ble Apex Court has held that civil proceeding and criminal proceeding can proceed simultaneously in spite of recovery of amount and statement between the parties. Criminal proceedings would continue as evidence alleged against the appellants is an offence against the society. In this particular case there were offence of cheating. Charge-sheet was submitted. Application for recovery was filed by bank before Debt Recovery Tribunal. Appellant and her husband alongwith bank officials were prosecuted for the alleged offence under IPC and P.C. Act. They were charged taking benefit of overdraft without furnishing any security. Appellant and bank had entered in settlement before Debt Recovery Tribunal. Appellant filed application under Section 239 of Cr.P.C. for discharge which was rejected by the trial Court holding that mere re-payment could not exonerate accused from a criminal proceeding which was upheld by Hon’ble High Court as well as Supreme Court, therefore, alternative remedy in company law is no ground for discharge of the revisionists. 9. Appellant filed application under Section 239 of Cr.P.C. for discharge which was rejected by the trial Court holding that mere re-payment could not exonerate accused from a criminal proceeding which was upheld by Hon’ble High Court as well as Supreme Court, therefore, alternative remedy in company law is no ground for discharge of the revisionists. 9. Learned counsel for the revisionists has cited 2008(14) SCC 1 , Rukmini Narvekar v. Vijay Satardekar and others, in which Hon’ble Apex Court held that while considering the case under Section 227, Cr.P.C. it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. It has also been held that there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227, Cr.P.C., can be taken into consideration by the Judge at that stage. 10. According to Section 227 Cr.P.C. : “Discharge”—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 11. Thus after perusal of above reason the discretionary power is vested in the trial Court under Section 227, Cr.P.C. By the above judgment Hon’ble the Apex Court have vested the trial Court with the power of considering the evidence and material produced by the defence at the time of framing of charge but the Hon’ble Apex Court has also given a guideline that only such materials can be taken into considerations by the Judge as are indicated in Section 227, Cr.P.C. It is not a general rule that the material produced by the defence should be considered but this is an exception to be followed by the Court only in those cases where the defence produces some materials which convincingly demonstrate that the whole prosecution is totally absurd or totally concocted. After going to the facts of the present case the learned Court considered all the materials produced before it and did not find the case of the revisionists fit for discharge in which there are several oral and documentary evidence in support of framing of charge. 12. According to Section 239 Cr.P.C. : “When accused shall be discharged.—If, upon considering the Police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” 13. Thus after considering the materials produced before the Court by parties he did not find the charge against the accused to be groundless. 14. At the stage of framing of charge learned Magistrate should not scrutinize and analyse the evidence produced before it on merit but has to see that all the materials produced before the Court if unrebutted would end the case into conviction, then charges shall be framed. At the stage of framing of charge benefit of doubt could not be given to accused. Learned counsel for the revisionists argued that in 1988 Ashok Kumar Agrawal was not the manager of Karmyogi Builders nor was employed in any capacity. Revisionists have not received any amount in personal capacity. There were consent between the complainant and the company that the complainant will purchase the plot or will obtain the total amount with interest. In 1988 Dinesh Kumar Agrawal was director of the company. There was no any malafide intention on the part of the director. 15. According to Section 415 IPC : “Cheating”—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 to do anything which he would not 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”.” 16. Thus in the present case the complainant was induced to delivery the amount representing that he shall be given a plot. The overt act of a person can be a good ground for conclusion regarding his intention. The plot was not given to the complainant that is why it can be said that the complainant was deceived by the revisionists, therefore, prima facie case under Section 420, IPC can be said to be made out. 17. According to Section 405 IPC : “Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “Criminal breach of trust”.” 18. According to the facts of the present case as the amount of Rs. 92,000/- was given by the complainant in 1988 for the purchase of plot through cheque, it was not invested by her for the sale of any income as stated by the defence. Hence non-delivery of plot is an act which brings his conduct and act between framework of Sections 420 and 406, IPC. Till now nor the plot has been delivered nor the amount has been returned, therefore, the revisionists can be charged under both sections according to the provision of Section 221 Cr.P.C. On the basis of version of defence of the revisionists no case of discharge under Section 239, Cr.P.C. is made out. On merit the case is not to be scrutinized at the stage of charge but it can be considered during trial, therefore, the Court reached to the conclusion that the case is made out for framing charge. Thus the application for discharge was rejected. Therefore, as the accused did not move bail application nor they have been released on bail, by order dated 18.9.2008 of the High Court. Arrest was stayed till the submission of the charge-sheet. Charge-sheet has been submitted, therefore, the CJM has issued non-bailable warrant against them which needs no interference by this Court in revision, therefore, revision deserves to be dismissed. Accordingly dismissed. ————