INDIRA KUMARI Vs. ANURAG KUMAR

JUDGEMENT

(1.) The sole Petitioner, invoking inherent jurisdiction of the Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 24.11.2000, passed by Sri Vibhakar Dubey, learned Judicial Magistrate 1st Class, Patna, in Complaint Case No. 1202(C) of 2000, whereby, the learned Magistrate has taken cognizance of offence under Section 138 of the Negotiable Instrument Act and directed for summoning the Petitioner to face the trial.

(2.) Short fact of the case is that, the Opposite Party No. 2 filed a complaint in the court of Chief Judicial Magistrate, Patna vide Complaint Case No. 1202(C) of 2000 arraying therein the Petitioner and her husband as accused for commission of offence under Sections 120B, 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act 1881. It was alleged by the complaint that an agreement was executed between complainant and the husband of the Petitioner on 31.3.2000 for opening Sidhi Vinayak Dal Mill on the land of Petitioner?s husband situated at Paharpur area, P.S.- Gardanibagh, Patna, for which a sum of Rs. 10,800/- was paid in advance, and a sum of Rs. 17,815/- was given to the Petitioner?s husband on the same day for erecting / constructing shed on the land. The said land was to be given to the complainant by the husband of the Petitioner on the monthly rent of Rs. 2,100/- The complainant in advance paid Rs. 10,800/- to the husband of the Petitioner on 31.3.2000. Thereafter, he further paid Rs. 17,815/- for constructing shed over the land in question on the same day i.e. 31.3.2000 as per agreement. While the complainant approached the electricity office for electric connection, he came to know that in the name of husband of the Petitioner electric bill was due which was not cleared by the accused. It was also informed that, unless outstanding bills are cleared by the husband of the Petitioner, connection in the name of any other person shall not be provided. When the complainant failed to get electric connection, which was condition precedent, for starting the mill over the land in question, he withdrew his intention to open the mill over the land. Before taking electric connection, the complainant had also installed the machinery. Subsequently, the complainant informed the accused persons regarding dropping the idea and demanded Rs. 10,000/- as compensation for the loss suffered by him in installing and removing the same, also advance of Rs. 10,800/- and Rs. 17,815/- which was given to Opposite Party No. 2 for constructing shed etc. Thereafter, the accused No. 2 i.e. husband of the Petitioner refunded Rs. 21,000/- in cash, and gave a Cheque of Rs. 17,615/- drawn on the State Bank of India, Gandhi Maidan Branch, on 20.5.2000. It was a post dated Cheque of 1.6.2000. It was further disclosed by the complainant, that he submitted the Cheque in his account of United Bank of India, Bar Council Branch, Patna on 31.5.2000. However, on 5.6.2000 he received information from the Bank regarding dishonour of the Cheque and Cheque was returned to him. After that, the complainant was examined on S.A., and in support of the complaint, four witnesses were examined. By the impugned order dated 24.1.2000 the learned Judicial Magistrate 1st Class, Patna took cognizance of offence under Section 138 of the Indian Penal Code and summoned only the Petitioner.

(3.) Aggrieved with the order of cognizance, the Petitioner approached this Court by filing the present petition on 3.12.2002. While issuing notice to Opposite Party this Court directed that, in the meantime, further proceeding in the Complaint Case No. 1202 (C) of 2000 pending in the court of Judicial Magistrate 1st Class, Patna shall remain stayed. Thereafter, lower court record was called for, which was received, and finally on 16.4.2004, the case was admitted for hearing and it was directed that during the pendency of this application, the interim order passed on 3.12.2002 shall remain operative. The order of stay is still continuing.