VIVEK SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 5.5.1999 passed in Complaint Case No.498(C) of 1999 by Sri B.K.Sinha, Judicial Magistrate, Patna. By the said order, the learned Magistrate has taken cognizance of offence under Sections 406, 420 of the Indian Penal Code and 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act.

(2.) Short fact of the case is that Opp.Party no.2 filed a complaint petition disclosing therein that he was doing business and the petitioner along with some known persons of the complainant requested the complainant for financing loan of Rs. 1.5 lacs for starting his business. Initially, the complainant was not ready to finance. However, after persuasion he gave a loan of Rs.1,26,000/- to the petitioner for a period of two months only and the petitioner gave a post-dated cheque bearing no.66538 dated 27th August,1998 for an amount of Rs.1,26,000/-in favour of the complainant. The complainant had financed the petitioner by paying the amount in cash. It was further alleged that when the cheque was presented before the Bank, it was not honoured and the same was returned by the Banker along with letter no.99 dated 3.3.1999. The complainant thereafter sent a legal notice to the petitioner through his advocate. The legal notice dated 6.3.1999 was issued to the accused petitioner for payment of the same within a period of 15 days from the date of receipt of legal notice. Despite of issuance of notice, since the accused did not pay the cheque amount, the complainant arrived at a conclusion that accused petitioner has dishonestly and fraudulently issued him cheque knowing fully well that the same was going to dishonour. The complainant has stated in the complaint petition that he has suffered loss and the complainant was cheated. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint, one witness, namely, Kumar Rajnish was also examined. After being satisfied with the materials available on the record, the learned Magistrate by its impugned order took cognizance of the offences, as stated above and directed for issuance of summons for securing the attendance of the accused persons.

(3.) Sri Pankaj Kumar Sinha, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance , has firstly argued that on perusal of entire complaint petition, no offence under Sections 420 and 406 is made out. He submits that there is no averment in the complaint petition that the complainant was cheated. Learned counsel for the petitioner, while relying on a Judgment of Honble Supreme Court, reported in 2000(1) BBCJ 144(SC); G.Sagar Suri & Anr Vs. State of U.P. & Ors., has argued that the Honble Supreme Court has held that in the complaint petition there must be specific averment regarding cheating and only then offence under Section 420 of the Indian Penal Code can be considered as made out. Learned counsel for the petitioner has specifically referred paragraph nos.13 and 44 of the Judgment in G.Sagar Suris case (Supra).