SHEOJI PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 21.8.1995 passed by Shri Sheo Bachan Yadav, Judicial Magistrate, Patna in Tr. No. 681/93/324/95 by which in exercise of his powers under Section 319 of the Code he summoned the petitioner to face the trial for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act').

(2.) From the application, it appears that Opposite Party No. 2 Deojit Basu, a partner of Ashok Transport Agency, filed a complaint-petition before the Chief Judicial Magistrate, Patna against one Ashok Kumar Singh. The learned Chief Judicial Magistrate after registering the complaint transferred the same under Section 192 of the Code to the Court of the learned Judicial Magistrate named above. The allegation made in this complaint-petition was under Section 420 of the Indian Penal Code and 138 of the said Act. It was alleged that accused Ashok Kumar Singh who was the proprietor of M/s. Vaishali Tyres, Jhumri Tilaiya pursuant to an agreement between him and the complainant used to send the consignment of goods to the consignee without Bilty through the transport agency of the complainant, various goods were delivered as per this arrangement in the period from 30.4.1992 to 31.1.1993. In view of the hardship of accused Ashok Kumar Singh the consignments were delivered against the post-dated cheque for an amount of Rs. 3,60,995/- vide cheque No. LKR/052912 dated 21.5.1993 drawn on United Bank of India, Jhumri Tilaiya. This amount covered the entire cost of goods delivered to this accused. Opposite Party No. 2 presented this cheque dated 21.5.1995 to his Bank, namely, Punjab and Sindh Bank, Fraser Road, Patna on 21.5.1993. However, the aforesaid bank on 25.6.1993 informed the Opposite Party No. 2 that the United Bank of India, Jhumri Tilaiya Branch had informed it that the account of the accused was closed on 19.4.1993 itself.

(3.) Opposite Party No. 2 thereafter contacted this accused several times who promised to pay the amount of this cheque but failed. Thereafter on 3.7.1993 a legal registered notice as required by the said Act was sent to this accused. Even then the accused failed to make this payment even after 15 days of the receipt of the notice. As such the complaint-petition was filed under Section 138 of the said Act and Section 420 of the Indian Penal Code. On 25.8.1993 Opposite Party No. 2 was examined on solemn affirmation in which also he named only accused Ashok Kumar Singh as the proprietor of M/s. Vaishali Tyres. It has been pointed out that neither in the complaint-petition nor in his statement on solemn affirmation Opposite Party No. 2 had said any thing against the present petitioner. During inquiry under Section 202 of the Code two witnesses were examined by the learned Judicial Magistrate. They also did not say any thing against the present petitioner. On the conclusion of the inquiry accused Ashok Kumar Singh only was summoned and put on trial. In the course of trial, four witnesses were examined before the framing of the charge. Out of them two have stated that the present petitioner was a partner of M/s. Vaishali Tyres alongwith accused Ashok Kumar Singh. Subsequently a petition was filed before the learned Judicial Magistrate under Section 319 of the Code on which the impugned order issuing summons to the present petitioner was passed for standing his trial in this case.