B.N. Mishra, J.
1. This patition has been filed under Section 482 of the Code of Criminal Procedure to quash the proceedings initiated against the petitioner in I. C. C. No. 54 of 1983 in the court of the learned Chief Judicial Magistrate, Cuttack. On a complaint petition filed by the opposite party against the petitioner the learned Chief Judicial Magistrate by order dated 28-2-1983 took cognizance under section 420 I. P. C. and summons have been issued against the petitioner. It is this order of the learned Magistrate which is under challenge in this case.
2. The case of the opposite party (complainant) is that the petitioner was an old college friend of his. The opposite party had written a number of traditional folktales in English language and the petitioner had suggested to the opposite party that he had contact with reputed publishers in English with whom he could make arrangements for publication of the folk-tales which would fatch good money to the opposite party towards royalty as the author. The opposite party believed the representation of the petitioner and around the year 1974 delivered twenty-five stories written by him in English to the petitioner. A few months before filing the complaint, petition the opposite party came acrosses a book named 'Indian Village Tales' published in England in 1975 under the authorship of the petitioner and in that book thirteen stories described in the schedule to the complaint petitioner which had been given by the opposite party to the petitioner were published, without acknowledging the authorship of the opposite party. According to the opposite party, the petitioner deceived him and not the stories published under his own name as the author thereby committing an offence punishable under Section 420 I. P. C. The opposite party has also alleged in the complaint petition that the petitioner had committed offences under sections 405 and 120-B of the Indian Penal Code and under Section 63 of the Copyright Act. Along with his complaint, petition, the opposite party has filed a photo-stat copy or a lettter dated 2-10-74 alleged to have been written by the petitioner to the opposite party. The learned Magistrate recorded the initial deposition of the opposite party on 28-2-1983 and took cognizance under Section 420 I. P. C.
3. Learned counsel appearing for the patitioner has urged that the allegations of the opposite party against the petitioner and his entire case before the learnad Magistrate do not disclose a prima-facia case under Section 429 I. P. C. and therefore the order of the learned Magistrate taking cognizance under the said section must be quashed. Learned Counsel appearing for the opposite party has, on the other hand, submitted that at the stage of taking cognizance the learned Magistrate is not required to enter into a detailed discussion on the merits of the case and therefore when the cognizance is based on a prima facia satisfaction of the learned Magistrate, there is no justification or scope for interference by this Court. In this context it would be useful to refer to A. I. R. 1976 Supreme Court 1947 (Smt. Nagawwa v. Veeranna Shiralingapaa Konjalgi and others wherein the Supreme Court observed:-
' It is well settled by a long catena of dicisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one.'
It was also observed:--
'....It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration in herent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and established of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate had exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately and in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) Where the allegations made in the Complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients or an offence which is alleged against the accused ;
(2) Where the allegation made in the complaint are potently absured and inherently improbable so that no prudent person can ever reach a conclusion that proceeding against the accused ;
(3) Where the discretion exercised by the Magistrate in issuing processes is capricious and arbitrary having been based either - on no evidence or on materials which are wholly irrelevant or inadmissible ; and
(4) Where the complaint suffers from fundamental 'legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings'.
Bearing in mind the principles of law enunicated in the aforesaid decision, the facts of the present case may now be scrutinised. According to the averments made in paragraphs 3 to 7 of the complaint petition the allaged inducement of the petitioner is stated to be that the petitioner would publish in England the stories written by the opposit party who would stand to gain good money towards royalty as the author. The futher allegation is that on the basis of the aforasaid inducement the opposite party had delivered twenty-five stories to the petitioner and the petitioner got thirteen of those published in 1975 under his own authorship with the dishonest intention of cheating the opposite party. In the complaint petition there is no mention of any suggesion by the petitioner for co-authorship or division of profits. However, in his initial deposition the opposite party changed his version as regards the inducement and stated that the petitioner had agreed to undertake the publication on co-authorship basis and that the sale proceeds were to be divided aqually. This statement of the opposite party renders his allegation as to inducement contained in the complaint petition untrue. The two versions taken at their face value are inconsistent and contradictory and it is impossible to say which one is true. The contents of the alleged letter of the petitioner to the opposite party dated 2. 10. 74 do not at all corroborate the allegations of inducement or decaption. The complaint petition, the initial deposition and the letter do not show that the petitioner had any dishonest intention at the time he offered the inducement around the year 1974 even assuming that he had made such on inducement and subsequently failed to fulfil his promise. It was pointed out in A.I R. 1973 Supreme Court 326 ( The State of Kerala v. A. Pareed Pilai & another ) that to hold a person quilty of the offence of cheating, it had to be shown that his intention was dishonest at the time of making the promise and that such a dishonest intention could not be inferred from the mere fact that he could not subsequently fulfil the promise. In 55 (1983) C.L.T. 24 (M/s. Lord Match Industries v. M.S. Salvasakaran,) It washeld :
'The distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement which may be judged by his subsquent act, but of which the subsquent act is not the sole criterion. Mere breach of contract cannot give rise to a criminal prosecution. Where a charge of cheating rests upon a representation, which is impugned as false and which relates not to an existing fact but to a future event, it has to be shown that the representation was false to the knowledge of the accused at the time when it was made. It is but little to the purpose to show that in fact, the representation has turned out to be untrue, An essential ingredient of the offence of cheating is the damage or harm caused or likely to be caused to the victim in body, mind, reputation property. Generally speaking; a criminal offence consists of an act done by the accused with a specific criminal intent or state of mind constituting mens rea. It has been laid down by this Court in S.B. Goeka v. Rajendra Prasad Agarwalla ( 1982 Cri. L. J. 1228,) that every breach of contract does not constitute an act of cheating. Dishonest intention cannot ce inferred from the mere fact that the accused person did not subsquently fulfil the promise. In the absence of materials for the satisfaction of the Magistrate that the accused person had any dishonest intention at the time the alleged promise or inducement was made, an offence of cheating cannot be said to have been established. In such cases, the dipute would be purely of a civil nature and the proceeding initiated in the criminal court would be an abuse of the process of the caurt.'
With respect, I agree with the aforesaid observations, Even assuming that the allegations of the opposite party are true, the dispute would be one for cognizance by the Civil court, not the Criminal court on parusal of the materials on record, I am not satisfied that a prima-facis case under section 420 I. P. C. has been made out. In these circumstances, initiation and continuance of the proceedings in the criminal court would be an abuse of the process of Court.
4. In the result, this petition is allowed and the criminal proceeding against the petitioner in I. C. C. No 54 1933 in the file of the learned Chief Judicial Magistrate, Curtack is quashed.