JUDGMENT Barkat Ali Zaidi, J.
1. This is a petition under Section 482 Cr.P.C. against an order of summoning passed by Addl. Munsif Magistrate-III Gorakhpur.
2. The facts giving rise to the summoning of the applicant, were that the applicant had purchased some Machines from the Opp. Party firm, costing Rs. 32,500/-. Out of that a sum of Rs. 26,900/- was paid and the remaining amount remained unpaid. The applicant, however, gave two post dated cheques for Rs. 30,000/-, Rs. 13,000/- of United Commercial Bank with a request that the cheques be cashed after 3 months so that the applicant may provide fund in the Bank meanwhile, but for some unfortunate situation, the funds could not be deposited in Bank and the cheques bounced. The applicant had earlier written to the Opp. Party firm that since the funds could not be deposited in Bank, the cheques may not be presented in the bank and more time be given to the applicant to deposit funds in the Bank and copy of the same is attached as Annexure- A. Another letter dated 31.1.1983 was also sent with the same object. The applicant despite these letters, presented cheques in the Bank which resulted in their bouncing.
3. In the circumstances enumerated above, it is manifest that any intention of cheating or withholding payment on the part of the applicant cannot be inferred since the major part of the transaction amount had already been paid by him and he had issued post dated cheques and was making efforts to deposit funds in the Bank which for some reason he could not and he also wrote letters in this regard.
4. A recent case decided by the Hon'ble Supreme Court, Anil Mahafan v. Bhor Industries Ltd. and Anr. 2006 1 S.C.C. (Cri.) 746, squarely covers the issue raised here. In this case also part payment was made by the Company for the purchases made and for the non-payment of the remaining amount, he was prosecuted for cheating. The Supreme court held that from mere failure of a person to keep up promise subsequently, a culpable intention of cheating right at the beginning when he made the promise cannot be presumed.
5. The Supreme court further held that a distinction has to be kept in mind between mere breach of contract and the offence of cheating and that it depends upon the intention of the accused at the time of inducement. The Supreme Court further observed that the subsequent conduct is not the sole test and mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent dishonest intention is shown at the beginning of transaction. The Supreme court further said that it is the substance of the complaint which is to be seen and the mere use of the word Cheating' in the complaint is of no consequence.
6. It will, therefore, become clear that no criminal proceedings against the applicant are legally sustainable and his remedy lies in the Civil Court
7. For granting relief to the applicant in these circumstances, under Section 482 Cr.P.C. we are faced with a little hitch and that is that these facts were not placed before the Magistrate through an application under Section 227 Cr.P.C. pr otherwise, which could have provided an opportunity to the Magistrate to terminate the proceedings. The applicant has by passed the Magistrate completely and has come to the High Court straightaway which is a wholly undesirable practice and needs to be deprecated for the reason that law requires that relief be claimed initially at he lowest rung of the judicial Hierarchy. Before coming to the High Court, therefore, the remedy available at the Magisterial level needs to be utilized and exhausted. The tendency to come straight to the High Court under Section 482 Cr.P.C., has resulted in a plethora of petitions thousands upon thousands which has resulted in the docket of the High Court bursting on the seams. We must, therefore, adopt a sterner attitude in such cases and deny relief under Section 482 Cr.P.C. where the appropriate relief has not been claimed before the Magistrate.
8. We are mindful of the fact that sending the case back to the Magistrate for his orders would be a mere formality but for the sake of adherence to law and legal principles formalities have to be fulfilled, because the formal aspect of Law is also vital and important.
ORDER We, therefore, dismiss this petition and direct the applicant to apprise the Magistrate of the aforesaid facts and circumstances and obtain his orders.