Madhusudan Rao, J.
1. This is a petition filed under Sec-. 4 82 Cr.PC by the two accused in C. C. No. 388 of 1976 on the file of the II Addl. Judicial First Class Magistrate, Nellore for quashing a charge framed against them Under Section 418 of the Indian Penal Code.
2. The facts leading to this Miscellaneous Petition are as follows;
The respondent D. Adisesha Reddi (who will hereinafter be referred to as the complainant) filed a complaint against the two petitioners (who will hereinafter be referred to as the accused) in the court of the II Additional Judicial First Class Magistrate, Nellore alleging that the two accused committed an offence punishable Under Section 418, I.P.C. on 28-11- 1972. The complaint was filed in January 1973. The case was enquired into as C. C. 47/73. The complainant examined himself as P. W. 1 and two others as P. Ws. 2 and 3. After the close of the prosecution evidence, the Judicial First Class Magistrate framed a charge against the two accused Under Section 418 IPC The accused thereupon filed Cri. R. C. 4 of 1975 in the Sessions Court Nellore praying the Court to quash the charge. Under his order dated 10-7-1975 the I Additional Sessions Judge, Nellore allowed the revision by quashing the charge being of the view that the facts alleged against the accused did not constitute a criminal offence punishable Under Section 418 IPC The complainant thereupon filed Cri. R. C. No. 179/76 in this Court contending that the Additional Sessions Judge had no jurisdiction to quash the charge. Under the order dated 24-9-1976, my learned brother P. Chennakeshav Reddi, J. allowed the revision holding that the Sessions Judge had no jurisdiction to quash the charge in view of Section 397(2) Cr.PC The accused have thereupon filed the instant application for quashing the charge invoking the inherent powers of this Court Under Section 482 Cr.PC
3. It is well settled that when a criminal proceeding is started in a subordinate court on a complaint of facts which do not constitute a criminal offence, such prosecution is an abuse of the process of the court and the High Court can exercise its inherent powers to quash such proceeding. Sri M. V. Ramana Reddi, the learned counsel for the accused contends that the facts alleged by the complainant do not constitute an offence of cheating. Sri S. R. Ashok, the learned counsel for the complainant on the other hand contends that the allegations of the complaint do constitute an offence of cheating punishable Under Section 418, IPC The only question therefore for consideration in this proceeding is whether the facts alleged against the accused constitute an offence of cheating.
4. To resolve the question it would be necessary to examine the allegations made by the complainant and they are as follows: The first and second accused are partners of a firm carrying on business under the name Ayitha Subbara-yudu & Co., General Merchants & Commission Agents, Stonehousepet, Nellore. The complainant is also a businessman at Nellore. There were business dealings between the complainant and the accused since long. On 23-11-1972 the complainant agreed to sell 33 bags of pillipesara seeds to the accused at the rate, of Rs. 145/- per bag. In pursuance of the agreement, he received an advance of Rs. 100/- from the accused. On 28-11-1972 the complainant delivered 32 bags of pillipesara to the accused and requested the accused to pay Rs. 1,944-60 to one Pasuparti Sriramulu and the balance of the sale consideration to him. He requested the accused to prepare a bill by the time he would return after attending to his personal work in the Agricultural Office. On his return to the business place of the accused, he was told by the accused that the bill was ready and that they had already paid an amount of Rupees 1,944-60 to Pasuparti Sriramulu. The accused told the complainant that there was no cash on hand with them just then for paying the balance of the amount due from them and that they would pay the balance the next day. Promising to pay the balance the next day, the accused asked the complainant to affix his signature on the bill for the entire amount of sale consideration. Believing the representation of the accused, the complainant affixed his signature on the bill as if he received the entire amount. On the next day when the complainant sent his manager (P. W. 2) to the accused for the balance of the amount, the accused evaded payment. The complainant himself went to the shop of the accused along with the manager the next day. The accused did not pay the amount even on that day. The complainant thereupon gave -a report at the II Town Police Station but the Police did not take any action. Hence the complaint.
5. It is admitted by the complainant that, the accused paid the amount of Rs. 1,944-60 to Pasuparti Sriramulu as directed by him. What all the complainant says is that the accused made him sign the bill On 28-11-1972 as if he (the complainant) received the entire amount of Rs. 4473-25ps. promising to Pay Rs. 2528-65 the next day and that they did not, however, pay the amount either the next day or subsequently. According to the- accused, the entire amount covered by the bill was paid and the complainant affixed his signature on the bill thereafter only.
6. For the purpose of considering the sustainability of the charge, it would be necessary to scrutinise only the case of the complainant and not the plea of the accused. An examination of the allegations in the complaint and the evidence of F. Ws. 1, 2 and 3 shows that the substantial accusa- tion of the complainant is one of a breach of contract by the accused. There is absolutely nothing to show that at the time when they asked the complainant to sign the bill either of the accused had the dishonest intention of not paying the balance amount the next day or some time thereafter. It is not possible in the absence of evidence on record to hold that the accused did not intend to pay the balance the next day as promised by them on 28-11-1972 when they asked the complainant to sign the bill. The fact that the accused did not abide by their promise subsequently by itself is no ground to hold that at the time when they made the promise they were making it dishonestly without any intention to fulfill the promise. The dispute between the parties is essentially and substantially one of a civil nature. It would appear that the complainant had already instituted a suit for recovering the amount due- to him, in the court of the I Additional Munsif Magistrate, Nellore and the suit is now pending as Order Section 898/76. In H. P. Chamaria v. B. K. Surekha, 1975 Mad LJ (Crl) 7 : 1974 Cri LJ 352 SC), their Lordships of the Supreme Court have clearly pointed out that mere breach of contract cannot give rise to a criminal prosecution for cheating. The element which converts, a breach of contract into an offence of cheating is the dishonest or fraudulent intention of the accused which induces the complainant to enter into the contract. As between a purchaser and a seller having mutual dealings, mere non-payment by the purchaser of the price or the balance of the price of the articles purchased cannot1 constitute the offence of cheating in the absence of proof of any dishonest misrepresentation on the part of the purchaser. Deception is the essence of an offence of cheating and if there [s no proof of dishonest intention on the part of the accused at the time when he made the promise which induced the complainant to do something which the complainant would not have done but for the promise there can be no offence of cheating though such wrongful conduct of the accused person might found a valid basis for action in the Civil Court. A breach of promise may be unethical,, but cannot be criminal unless the promise and its breach were the result of the necessary mens rea. Sri Ashok relies very much on the subsequent conduct of the accused in not keeping up their promise, to prove the exis- tence of dishonest intention. Intention of an accused may no doubt be judged by his subsequent conduct but the mere subsequent conduct cannot be the sole criterion to conclude his intention at the time of the initial promise. Maybe, the accused intended to pay the balance the next day when they made the promise on 28-11-1972 and developed the desire of not paying the amount subsequently. There is no such evidence available on record so as to clinchingly establish the existence of an intention on the part of the accused not to pay the amount even at the time when they made the promise and thereby induced the complainant to affix his signature on the bill.
7. Under the above circumstances, the charge of cheating against the accused-petitioners is illegal and unsustainable and the same is accordingly qua-hed. The Criminal miscellaneous petition is allowed.