1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLN. NO. 581 OF 2007 M/s.Jeevan Medicals .. Applicant versus Bharat Biotech & ors. .. Respondent ... Mr.V.G. Peshawe for the applicant. Mr.D.P. Adsule APP for the State. CORAM : D.G.KARNIK, J DATED : 14th January 2008 P.C.: 1. Heard learned counsel for the revision petitioner and learned APP for the State. 2. By this revision petition, petitioner challenges the judgement and order dated 17th March 2007 passed by the learned Sessions Judge, Pune quashing and setting aside the order dated 29th November 2006 passed by the Judicial Magistrate, First Class, issuing process against the respondents. 3. The respondent no.1 and 2 are the same 2 company. Respondent nos.3 and 4 are the directors of respondent no.1 company. 4. According to the petitioner, respondent no.1 entered into a contract with the petitioner for promotion of sales of "Hepatitis B" vaccine manufactured by it. It was agreed between the parties that the petitioner would promote the sales of the Hepatitis B vaccine and procure the government orders. Respondent no.1 agreed to pay to the petitioner 15% of the value of the government orders procured by the petitioner. as service charges. According to the petitioner, he obtained government orders worth about 5 crores of rupees for which an amount of Rs.65,97,783/- was to be paid to him by respondent no.1 by way of service charges. Respondent no.1 however, did not pay the said service charge and thereby committed an offence of cheating. The petitioner therefore filed a private complaint before the Judicial Magistrate about the alleged cheating. 5. It appears that initially the learned Magistrate was not satisfied that there was sufficient material for issuance of process for the alleged offence. He therefore referred the matter 3 for investigation to the police u/s.202 of the Code of Criminal Procedure. After consideration of the police report, the Magistrate directed issuance of process against all the respondents vide his order dated 29th November 2006. The respondents challenged the order of issuance of process by filing a revision application before the Sessions Court, Pune. By his order dated 17th September 2007, the learned Sessions Judge set aside the order of the learned Judicial Magistrate issuing process. The learned Sessions Judge held that the subject matter of the complaint was entirely a civil dispute between the parties and issuance of process was uncalled for. He therefore set aside the order of issuance of process. That order is impugned in this revision petition. 6. Learned counsel for the petitioner took me through the body of the complaint filed before the Magistrate. In the complaint, the petitioner has alleged that there was a contract between him and respondent no.1. He has further alleged that he had procured the orders from the respondent no.1 in pursuance of the contract and sum of Rs.65,97,783/- plus interest was due and payable to him under the contract. He has further alleged that the amount was not paid despite notice. The petitioner has also filed a civil suit against the respondent no.1 for 4 recovery of the amount of commission. It is thus clear that there is a civil dispute between the parties regarding the money due under the contract. The criminal complaint appears to have been filed for recovery of money due under the contract. 7. It is pertinent to note that though the learned counsel for the petitioner stated that respondents have cheated, no where in the complaint it is alleged that at the time when the contract was made, respondent no.1 had no intention to make the payment under the contract. The petitioner was required atleast to aver that he was induced to do (i.e. to procure government orders) which he would not have done had he not been deceived. He ought to have averred that there was no intention of making payment since beginning. Subsequent dispute on account of which payment has been withheld cannot be said to result into cheating. It must further be noted that no specific allegations constituting offence are found to have been made against the respondents 3 and 4. I therefore do not see any error in the order of the learned Sessions Judge setting aside the order of the Magistrate. 8. Revision Petition is accordingly dismissed summarily. 5 (D.G. KARNIK, J)