JUDGMENT : C.V. Bhadang, J. Rule. Learned counsel for the respondents waives service. Heard finally with the consent of the parties. 2. The challenge in this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure (Cr.P.C, for short) is to the judgment and order dated 30/10/2015 passed by the Additional Sessions Judge, Mapusa in Criminal Revision Application no.113/2013. 3. The brief facts necessary for the disposal of the petition may be stated thus- The petitioner is based at Delhi and is engaged in the import and is a trader of optical lenses and blanks and inter alia amongst other places, has an office at Goa. The respondent no.2, M/s. G.K. Hitec Lenses Pvt. Ltd. is a company registered under the Companies Act. There were business transactions between the petitioner and the second respondent since 1991 in which the petitioner had been supplying optical lenses and blanks to the second respondent. 4. The second respondent has filed a complaint against the petitioner before the learned Judicial Magistrate First Class at Mapusa alleging commission of offences under section 209 and section 420 of the Indian Penal Code (I.P.C). The case made out in the complaint is that the second respondent had placed an order with the petitioner for supply of optical blanks. That vide email dated 19/2/2005, the petitioner confirmed the said order. However, beneath the said confirmation, the petitioner, 'surreptitiously' included a quotation for lenses. It was contended that the second respondent has neither placed any order, nor accepted the quotation for supply of lenses mentioned by the petitioner in the email dated 19/2/2005. It was contended that vide email dated 22/2/2005 the petitioner confirmed the order for blanks and mentioned that Shri Niraj Gupta on behalf of the second respondent had also placed an order for some lenses from the ready stock available with the petitioner. It was also contended that by this email the petitioner "surreptitiously increased the quantity of the blanks over and above the number of blanks for which the order was placed". On 11/4/2005, the petitioner sent an email, saying that – they will receive the material within the week and shall thereafter dispatch the same. 5. It was also contended that by this email the petitioner "surreptitiously increased the quantity of the blanks over and above the number of blanks for which the order was placed". On 11/4/2005, the petitioner sent an email, saying that – they will receive the material within the week and shall thereafter dispatch the same. 5. It was contended that the petitioner dispatched the blanks as ordered vide Bill No.001 dated 16/4/2005, however, the said consignment was found to contain 3653 extra pairs of blanks which were not ordered. These blanks were sent back to the petitioner who refused to take the delivery of the goods on account of which they were rerouted to the Delhi office of the second respondent and are lying there. 6. It appears that the petitioner has filed Civil Suit no. S- 6/2007 before the District Judge at Delhi claiming Rs.20.00 lakhs towards the price of the lenses which were imported from the overseas market and delivered to the second respondent on credit. The case made out by the petitioner in the said civil suit is that Niraj Gupta on behalf of the second respondent had confirmed the said order on 11/3/2005. The petitioner further claims that the progress of the said order was communicated to the second respondent by various emails from 12/3/2005 to 30/6/2005. 7. According to the second respondent, the petitioner made false claim seeking a decree for Rs.20.00 lakhs in the said suit, which according to the second respondent is an offence under section 209 of Indian Penal Code Further according to the second respondent, the act of the petitioner in surreptitiously including a quotation for lenses in the email dated 19/2/2005 and the supply of 3653 extra pairs of blanks (over and above the quantity for which the order was placed) tantamounts to cheating within the meaning of section 415 of Indian Penal Code With these allegations the complaint was filed before the learned Magistrate. 8. The learned Magistrate recorded the verification of Mr. Banu Naik, the General Manager of the second respondent and by order dated 1/7/2011 issued process against the petitioner for the offences punishable under sections 209 and 420 of Indian Penal Code The petitioner appeared and filed an application seeking dropping of the proceedings. 8. The learned Magistrate recorded the verification of Mr. Banu Naik, the General Manager of the second respondent and by order dated 1/7/2011 issued process against the petitioner for the offences punishable under sections 209 and 420 of Indian Penal Code The petitioner appeared and filed an application seeking dropping of the proceedings. The learned Magistrate by order dated 5/8/2013 found that in so far as the offence under section 209 of Indian Penal Code is concerned, there is no adjudication by the Civil Court about the petitioner having made any claim, knowing it to be false and the matter is still sub judice and in view of the provisions of section 195 of Criminal Procedure Code the complaint is not maintainable or is premature. As regards the offence punishable under section 420 of Indian Penal Code it was found that prima facie no such offence is made out. The learned Magistrate found that the offence punishable under section 420 of Indian Penal Code requires the complainant being put to wrongful loss and the accused having obtained a wrongful gain and neither of these ingredients are satisfied in this case. The learned Magistrate has placed reliance on the decision of the Supreme Court in the case of Tulsi Ram v. State of U.P reported in 1963 Sup. (1) SCR 382. In that view of the matter, the complaint was dismissed. Feeling aggrieved the second respondent challenged the same before the leaned Sessions Judge in Criminal Revision Application No. 113/2013. The learned Magistrate has partly allowed the revision application and while maintaining the dismissal of the complaint under section 209 of Indian Penal Code has found that prima facie an offence punishable under section 420 of Indian Penal Code is made out and has thus restored the order in so far as the issuance of process under section 420 of Indian Penal Cis concerned. Feeling aggrieved, the petitioner is before this Court. 9. I have heard Shri Rao, the learned counsel for the petitioner and Shri Kantak, the learned counsel for respondent no.2. With the assistance of the learned counsel for the parties, I have gone through the record and the judgment and orders passed by the Courts below. 10. Feeling aggrieved, the petitioner is before this Court. 9. I have heard Shri Rao, the learned counsel for the petitioner and Shri Kantak, the learned counsel for respondent no.2. With the assistance of the learned counsel for the parties, I have gone through the record and the judgment and orders passed by the Courts below. 10. It is submitted by Shri Rao, the learned counsel for the petitioner that the dispute between the parties is purely of a civil nature, which is tried to be given a criminal flavour only as a counter blast to the civil suit filed by the petitioner before the Delhi Court. The learned counsel has submitted that the learned Magistrate has rightly found that the ingredients of the offence under section 420 of Indian Penal Code were prima facie not made out and the learned Sessions Judge was in error in interfering with the same in exercise of his revisional jurisdiction. The learned counsel points out that an offence of cheating as defined under section 415/420 of Indian Penal Code presupposes that there is a dishonest inducement on the basis of which the person deceived acts and which results in a wrongful gain to the accused and wrongful loss to the person so deceived. It is submitted that the dispute is essentially about a commercial transaction for supply of optical lenses/blanks and the only case made out in the complaint is that the petitioner had surreptitiously included a quotation for lenses and had also increased the quantity of the blanks ordered. The learned counsel has referred to the various emails in order to show the progress of the supply order for lenses was being intimated to the second respondent from time to time, and thus there was nothing on record to show that there was no order placed for supply of the lenses. The learned counsel points out that in any event the allegations do not make out the essential ingredients of the offence of cheating. The learned counsel has placed reliance on the decision in the case of Ajoy Kumar Ghose v. State of Jharkand and another in Criminal Appeal No.485 of 2009. 11. On the contrary, the learned counsel for the respondent has supported the impugned order. The learned counsel has placed reliance on the decision in the case of Ajoy Kumar Ghose v. State of Jharkand and another in Criminal Appeal No.485 of 2009. 11. On the contrary, the learned counsel for the respondent has supported the impugned order. It is submitted that an act can give rise both to a civil wrong and a civil action as also a criminal action stemming from it, if the ingredients of the offence are made out. The learned counsel has strenuously urged that the act of the petitioner in surreptitiously including a quotation for lenses and increasing the quantity of the blanks, was a dishonest act, which has led the second respondent to face the civil suit at Delhi. This, in the submission of the learned counsel, is an act of cheating, as it has led to damage to the petitioner in body, mind and reputation, if not property. 12. The learned counsel alternatively submitted that the material would be sufficient to make out an offence of an attempt to cheat, that is, under section 420 Read With 511 of Indian Penal Code For this, reliance is paled on the decision of the Hon'ble Supreme Court in the case of Sudhir Kumar Mukherjee & Sham Lal Shaw v. State of West Bengal (1974) 3 SCC 357 . 13. The learned counsel has placed reliance on the decision of the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal and others (2004) 7 SCC 338 : [2004 ALL MR (Cri) 3131 (S.C.)] and in Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Private Limited and others, (2014) 2 SCC 246 : [2013 ALL MR (Cri)4434 (S.C)] in order to submit that it was not open to the learned Magistrate to have recalled the order of issuance of process. 14. In reply, it is submitted by Shri Rao, the learned counsel for the petitioner that under section 245 (2) of Criminal Procedure Code the Magistrate can discharge the accused at any previous stage of the case, if he considers the charge to be groundless. 14. In reply, it is submitted by Shri Rao, the learned counsel for the petitioner that under section 245 (2) of Criminal Procedure Code the Magistrate can discharge the accused at any previous stage of the case, if he considers the charge to be groundless. The learned counsel has relied upon the decision in the case of Cricket Association of Bengal and others v. State of West Bengal and others reported in 1971 (3) SCC 239, to submit that in appropriate case, this Court may quash the complaint even acting suo motu, if no offence is made out and action is an abuse of the process of the Court. He points out that the present petition is also filed under section 482 of Criminal Procedure Code and this Court in the given circumstances can quash the proceedings. 15. In so far as merits are concerned, it is submitted that in the present case neither the ingredients of the offence under sections 415/420 of Indian Penal Code are made out, nor of any attempt to commit such offence. 16. I have carefully considered the rival circumstances and the submissions made. 17. At the out set, it may be mentioned that the parties have confined their submissions on the aspect of issuance of process for the offence punishable under section 420 of Indian Penal Code is concerned. Even otherwise, no process could have been issued under section 209 of Indian Penal Code, in the absence of the concerned court filing a complaint. Thus, the consideration in the present matter is confined to the question whether the order of issuance of process under section 420 of Indian Penal Code can be sustained or not. Before considering the merits of the matter it is necessary to consider the contention, that the magistrate could not have recalled the process. 18. It is now well settled, as held by the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal and others [2004 ALL MR (Cri)3131 (S.C.)] and Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Private Limited and others [2013 ALL MR (Cri)4434 (S.C.)] (supra) that it is not permissible for the Magistrate to review/recall the order of issuance of process. It is now well settled, as held by the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal and others [2004 ALL MR (Cri)3131 (S.C.)] and Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Private Limited and others [2013 ALL MR (Cri)4434 (S.C.)] (supra) that it is not permissible for the Magistrate to review/recall the order of issuance of process. Let us now examine the submissions based on sub section 2 of section 245 of Criminal Procedure Code Under section 244 (1), the Magistrate in any warrant case instituted otherwise than on a police report, has to record the evidence before charge. Under section 245 (1) if upon taking of the evidence referred to under section 244, the Magistrate considers that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the magistrate shall discharge the accused. Sub section 2 of section 245 is however, a departure from the provisions of section 245 (1) of Criminal Procedure Code as held by the Supreme Court in the case Ajoy Kumar Ghose v. State of Jharkand & anr. (supra). Under sub section 2 of section 245, the magistrate has the power to discharge the accused "at any previous stage of the case" i.e., even before such evidence is led. (para 17 of the judgment of Ajoy Kumar Ghose, supra). It has been held by the Supreme Court in para 23 of the judgment that the words "or at any previous stage of the case" appearing in section 245 Criminal Procedure Code would include a stage from sections 200 to 204 of Criminal Procedure Code and till the completion of the evidence of prosecution under section 244 of Criminal Procedure Code For this reason, I do not find that per se the order of the Magistrate would be vulnerable. However, to a certain extent this issue is academic, as the Sessions Judge has restored the order of issue of process to the extent of the offence punishable under section 420 of Indian Penal Code and thus, basically it has to be examined, whether the order issuing process under section 420 of Indian Penal Code can be sustained. 19. In the present case the allegations on which the commission of the offence is claimed are quite simple. 19. In the present case the allegations on which the commission of the offence is claimed are quite simple. It is claimed that (i) the petitioner while confirming the order for supply of blanks, surreptitiously issued "a quotation for lenses below the email dated 22/2/2005 and there was no order placed for supply of lenses and (ii) while supplying the blanks, the petitioner increased the quantity by 3653 extra pairs, over and above the quantity ordered. 20. In so far as the first allegation about the supply of lenses is concerned, according to the petitioner there was an oral order for supply of 42,000 lenses which was placed on 19/2/2005 which was telephonically confirmed, on behalf of the respondent, on 11/3/2005. On behalf of the petitioner reliance was placed on the communication between the parties through e-mail. On the contrary the respondent has denied that any such order for supply of lenses was placed with the petitioner. The respondent has also controverted the genuineness of the e-mails, as being self generated. Admittedly, the petitioner had filed suit no.72/2009 at Delhi for recovery of price of the lenses which suit has been dismissed on 27/2/2012, inter alia, on the ground that the hard copies of the e-mail produced were not accompanied with certificates, as required under section 65-B of the Evidence Act. The Civil Court has found that it is implausible that an order for such a huge quantity is not evidenced by any written order. Be that as it may, the fact remains that, while the petitioner is placing reliance on a telephonic communication confirming the order on 11/3/2015 and certain communications via e-mails, the respondent is claiming that the e-mails are self generated and as such, are fabricated. 21. In so far as the blanks are concerned, the only allegation is about supply of 3653 extra pairs over and above the quantity which was ordered. Suit No. 160/2006 filed by the petitioner for recovery of the price of the blanks has been decreed on 22/12/2006 which is said to be subject matter of challenge before the Delhi High Court. At this stage it is neither necessary nor appropriate to examine the allegations in detail or to express any final opinion. Suit No. 160/2006 filed by the petitioner for recovery of the price of the blanks has been decreed on 22/12/2006 which is said to be subject matter of challenge before the Delhi High Court. At this stage it is neither necessary nor appropriate to examine the allegations in detail or to express any final opinion. In my considered view, if there are allegations and counter allegations made including about some e-mails being self generated and as being fabricated, the allegations need to be examined in the context of the offence punishable under section 415/420 r/w section 511 of I.P.C. It may be significant to note that the complaint before the Magistrate is triable as a warrant case instituted otherwise than on police report, in which the Magistrate would be recording evidence before charge. The respondent/ complainant would get an opportunity to establish the allegations including that of the e-mails being fabricated and self generated and at the same time the petitioner would get an opportunity to controvert the same by cross examination of the prosecution witnesses, if so advised. For the present purpose the matter is only at the stage of issuance of process and it is only when the magistrate decides whether a charge is to be framed or not that the complaint would proceed further. In my considered opinion, the petitioner would get one more opportunity i.e. during the evidence before charge, to show that, no case is made out against him, which if unrebutted, would warrant his conviction and consequently to seek discharge. In that view of the matter, I am not inclined to interfere with the impugned order. The petition is accordingly dismissed. Needless to mention that the learned Magistrate shall not be influenced by any of the observations made herein while deciding whether charge is to be framed or not. Rival contentions of the parties are left open. Petition Dismissed.