ORDER : Shri Vinay Saraf, learned counsel for the petitioner. Shri R. S. Chhabra, learned counsel for the respondent. Heard finally. The present petition is directed against the order dated 17-6-2011 passed by 10th Additional Sessions Judge, Indore in Criminal Revision No. 375/2011 by which the order dated 30-3-2011 passed by the J.M.F.C., Indore in Criminal Case No. 0/2010 dismissing the private complaint at primary stage, filed under section 406, 420/34 read with section 120-B of Indian Penal Code has been affirmed. 2. According to complainant/petitioner, he intended to enter in share market for public issue for receiving share capital from public for business of multiplex. The petitioner invited offers for appointment of Lead Manager to seek the permission of SEBI etc. On 7-7-2005, respondent approached the petitioner through mediators and brokers also and submitted a written offer on 25-7-2005. The respondent company ensured the complainant/petitioner for permission of SEBI in the matter and settled a fees of Rs. 10,00,000/- for the same. The respondent was appointed as a Lead Manager. On 1-12-2005 Memo of Understanding (MOU) was executed between the parties, and part of the fees amount has been paid to the respondents. Petitioner kept on working under instructions of respondent and spent huge amount on consultation, travelling etc. as and when desired and directed by the respondent and also paid earnest money for issues after taking huge amount of loan from Banks. On 13-2-2006, offer agreement was prepared and submitted in SEBI by respondent. On the basis of publication of an item in Newspaper dated 2-3-2006 at the behest of the petitioner regarding scope and expansion of his business, SEBI issued a note of displeasure, in response, the complainant tendered the apology for the same for aforesaid news publication. On 5-4-2007 respondent company with dishonest intention and with a view to cause financial loss to the complainant/petitioner in utter disregard of instructions of the complainant, withdrew the matter from SEBI. By then, petitioner had already spent about Rs. 43,00,000/- on various heads for obtaining permission from SEBI for public issue. For the aforesaid services, the respondent company received fees of Rs. 6,61,200/- but in place of putting forward the case of the petitioner before SEBI, respondent withdrew the matter and committed cheating and fraud. 3. According to the respondents/accused persons, memo of understanding was clear regarding rights of the respondent which includes right to withdraw the matter also. For the aforesaid services, the respondent company received fees of Rs. 6,61,200/- but in place of putting forward the case of the petitioner before SEBI, respondent withdrew the matter and committed cheating and fraud. 3. According to the respondents/accused persons, memo of understanding was clear regarding rights of the respondent which includes right to withdraw the matter also. In aforesaid memorandum there had been clear cut condition imposed on the complainant that whatever advertisement and items would be sent to the press and media, would be approved by the respondent company. In the interest of his client - the complainant, under procedure of working of SEBI and his reputation as Lead Manager, the respondent was left with no option but to withdraw the application and has acted in good faith and very much within the authority. In response to the notice of the complainant sent for damages, the respondent company made his position clear to the petitioner. Petitioner has not only sent a civil notice but with a view to create a pressure, preferred the aforesaid private complaint of cheating and forgery. 4. In support of the complaint, the petitioner/complainant examined the witnesses Murlidhar Pillai (PW-1) - Manager of the petitioner company, Bharat Jindal (PW-2) - Director of petitioner company, Divya Kulshreshtha (PW-3) - Manager, SEBI, Gurucharan Saluja (PW-4) - Assistant Manager HDFC Bank and tendered all relevant documents including MOU and such other documents. 5. Vide order dated 30-3-2011, J.M.F.C., Indore dismissed the private complaint filed by the petitioner against the respondent, observing that it was a civil dispute and criminal case has been instituted unnecessarily and respondent has made his position and stand clear in reply of the notice, which was submitted by the complainant/petitioner himself along with the complaint. The aforesaid order of J.M.F.C., Indore by which he has dismissed the private complaint for want of sufficient grounds was assailed by the petitioner/complainant in revisional Court and by the impugned order the revision petition was dismissed and order of dismissal was affirmed. 6. The aforesaid order of J.M.F.C., Indore by which he has dismissed the private complaint for want of sufficient grounds was assailed by the petitioner/complainant in revisional Court and by the impugned order the revision petition was dismissed and order of dismissal was affirmed. 6. Learned counsel for the petitioner/complainant placing reliance on a judgments of Supreme Court in the case of Chandra Deo Singh vs. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430 , Nirmaljit Singh Hoon vs. State of West Bengal and others, AIR 1972 SC 2639 , Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others, 1976 Cri.L.J. 1533, and in the case of Rajesh Bajaj vs. State NCT of Delhi and others, reported in (1999) 3 SCC 259 submits that Courts below have travelled beyond the jurisdiction and appreciated the evidence of defence also meticulously in place of considering the evidence of complaint on its face value. Further placing reliance on the judgments of High Court of M.P. delivered in the cases of Meenakshi Sundaram Textile Ltd. Bangalore and another vs. Gokulchand Rakhabchand, 2002(4) MPLJ 377 , SET Discovery Pvt. Ltd and others vs. Shashikant son of Padmakar Kudroli, 2005(4) MPLJ 251 , Harjinder Kaur Chukkal vs. Gurubaksh Singh Dhanova and others, 2005(4) MPLJ 104 and Goyal M. G. Gases Pvt. Ltd and another vs. Kamaljeet Singh Bhatia and another reported in 2007(4) MPLJ 80 submits that allegations made in complaint alone should have taken into consideration alongwith evidence adduced by the complainant. Point of view of defence should not have been considered by the Courts below to that extent. 7. Per contra, learned counsel for the respondents submits that Courts below have considered the documents of the respondent's reply to the notice of the petitioner but it has been produced by the complainant himself along with the complaint. Meaning thereby, complainant has relied upon the documents and only that document has been considered and appreciated by the trial Court. 8. Learned counsel for the respondent has placed reliance on the judgment of Supreme Court in the ease of Thermax Limited and others vs. K. M. Johny and others, (2011) 13 SCC 412 and Md. Meaning thereby, complainant has relied upon the documents and only that document has been considered and appreciated by the trial Court. 8. Learned counsel for the respondent has placed reliance on the judgment of Supreme Court in the ease of Thermax Limited and others vs. K. M. Johny and others, (2011) 13 SCC 412 and Md. Ibrahim and others vs. State of Bihar and another reported in (2009) 8 SCC 751 and submitted that criminal Courts should be slow to help the litigants who deliberately give a colour of criminal case to a civil dispute as a pressure tactics and supported the impugned orders. 9. During the arguments learned counsel for the respondents submitted that complainant played mischief and created a bad image in the eye of SEBI regarding their public issue hence, to save his reputation as Lead Manager also, he exercised his authority given to him by MOU and withdrew the case in fair manner in the interest of his client, the petitioner. 10. Considering the rival contentions and law submitted by the parties, it appears that true it is that respondent No. 3-Mayank Dalal was appointed as a Lead Manager by the complainant company. Petitioner has asked him to not to withdraw the case from SEBI specifically and he has ensured a date of hearing before Members of the Board of SEBI for consideration of their case but prior to the aforesaid date of appointment, that too against the specific instructions and confidence of the complainant, he withdrew the case from SEBI. 11. Normally in a case of cheating every case has its civil base. It depends upon the degrees of mischief, act and conduct of the parties. More will be the degrees of mischief, more will be the chances of element of mens rea and criminal act against the wrongdoer. 12. In the present case, against respondent Nos. 1 to 4 and 6, neither in complaint nor in entire evidence anything has come worth taking cognizance against them. They have been made parties because they are the company and office bearers of the company but prima facie they are not responsible for day-to-day affairs. Whatever the evidence has been adduced by the complainant is only against respondent No. 3 - Mayank Dalal, who was in direct contact of the complainant and was liable for day-to-day affairs and for withdrawal of the case. Whatever the evidence has been adduced by the complainant is only against respondent No. 3 - Mayank Dalal, who was in direct contact of the complainant and was liable for day-to-day affairs and for withdrawal of the case. Whether he was justified or not and whether to what extent he acted against the complainant for causing wrongful loss to him, is nothing but a matter of evidence. 13. In balanced opinion of this Court, it is not a groundless case at the stage of section 203 of Criminal Procedure Code against respondent No. 3 - Mayank Dalal. Impugned order is hereby modified to that extent. In respect of remaining respondents the orders of Courts below are upheld. In the interest of justice, the trial Court is directed to consider the complaint of the petitioner against respondent No. 3 - Mayank Dalal further and pass appropriate orders according to law under section 203/204 of Criminal Procedure Code. The petition accordingly, disposed of. C.c. as per rules.