PRABHAKAR 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 an order dated 19.12.2005 passed in Complaint Case No.2816(c) of 2005, whereby the learned Sub Divisional Judicial Magistrate, Patna has taken cognizance of offence under section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. THE petitioner has further prayed for quashing of entire criminal proceeding in Complaint Case No.2816(c) of 2005, which is pending in the Court of Sub Divisional 2 Judicial Magistrate, Patna.

(2.) SHORT fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Patna vide Complaint Case No.2816(c) of 2005 against the petitioner on an accusation of commission of offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. It was disclosed in the complaint petition that the petitioner approached him for a friendly loan of Rs.50,000/- with regard to his Computer business with an assurance that he will return the same at the earliest. On the request of the petitioner, the complainant gave Rs.50,000/- as friendly loan and as such he gave Cheque on 7.9.2004 for an amount of Rs.20,000/- drawn on ICICI Bank, Dhanbad Branch and he gave Rs.30,000/- in cash to the petitioner. It was further disclosed that the petitioner subsequently on 4.2.2005 issued a Cheque of Rs.50,000/- bearing No.755567 drawn on Bank of Baroda, Patna Branch. However, at the time of handing over the cheque, it was requested by the petitioner to present the same after fortnight. It further appears from the complaint petition that in the meanwhile the petitioner was kidnapped and he was released after a week and as such the complainant kept the production of the cheque in abeyance. Subsequently, periodically the petitioner requested the complainant not to produce the cheque. After confirmation given by the petitioner that there were sufficient amount in his account, the cheque was presented in Bank. However, on 16.7.2005, the cheque was returned to the complainant un-paid due to the reason of in-sufficient funds in account of the petitioner. The complainant again contacted the petitioner, who promised to deposit sufficient amount in his account by 25.7.2005. Accordingly, the complainant again produced the cheque on 26.7.2005 for its encashment, but the same again bounced back. The complainant received such intimation on 6.8.2005. The complainant further disclosed that on 25.8.2005, the petitioner got a legal notice issued to the petitioner and despite that the petitioner did not clear the due amount. After filing the complaint, the complainant was examined on S.A. and also produced witness in support of his complaint. The learned Sub Divisional Judicial Magistrate, Patna, by its order dated 19.12.2005, took cognizance of offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and directed for summoning the petitioner.

(3.) AFTER going through the materials available on record and in view of presentation of the cheque after expiry of six months, the court is of the opinion that the learned Sub Divisional Judicial Magistrate has committed an error in passing the impugned order of the cognizance. Moreover, the facts disclosed in the complaint petition further does not make a case for either application of Section 420 of the Indian Penal Code or Section 138 of the Negotiable Instruments Act. The court is of the opinion that allowing prosecution on such allegation will amount to allowing abuse of the process of the court. With a view to prevent the abuse of the process of the court, it is desirable to interfere with the impugned order as well as entire proceeding.