UMA NATH SHARAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application by petitioner has been filed for cancellation of bail of opposite party No. 2 granted in complaint case No. 612(c) of 1999 under Sections 406, 420, Indian Penal Code (in short 'IPC') and Section 138, Negotiable Instruments Act by Mr. V.D. Rai, Judicial Magistrate, 1st Class, Patna on 27.9.2002.

(2.) The case of petitioner, in short, is that he had executed a sale deed in favour of Urmila Prasad for sale of his house for Rs. 7,01,000/- but subsequently he was not interested to sell his house, therefore, he gave Rs. 7,01,000/- to opposite party No. 2 for returning the same to Smt. Urmila Prasad because opposite party No. 2 was a common man but opposite party No. 2 did not pay the aforesaid money to Urmila Prasad and petitioner had to sell his house to Smt. Urmila Prasad and he suffered irreparable loss and injury and when he demanded his money from opposite party No. 2, he issued a cheque for Rs. 7,01,000/- but the said cheque was dishonoured and the petitioner then filed complaint case No. 612(c) of 1999 (Annexure-1) against opposite party No. 2 who filed an application being Cr. Misc. No. 17871 of 1999 for quashing but the same was withdrawn by him (Annexure-2) and, thereafter, opposite party No. 2 handed over twenty-eight cheques each of Rs. 25,000/- to petitioner to settle the dispute but none of those cheques was honoured (Annexure-3). The further case of petitioner is that opposite party No. 2 filed an application for his anticipatory bail before the learned Sessions Judge, Patna on 11.8.2000 stating therein, inter alia, that a compromise between him and petitioner had been arrived at and opposite party No. 2 has already given the amount to petitioner by issuing twenty-eight post-dated cheques and petitioner has already received payment of those cheques and petitioner has already filed an application before the Court below for withdrawal of the case and the learned Sessions Judge disposed of his anticipatory bail application on 19.8.2000 and, thereafter, opposite party No. 2 filed anticipatory bail application being Cr. Misc. No. 30446 of 2000 before this Court which was dismissed on 5.12.2000 and two years, thereafter, opposite party No. 2 surrendered before the Court of Shri V.D. Rai, Judicial Magistrate, 1st Class, Patna and he was first granted provisional bail without hearing the petitioner and, thereafter, petitioner appeared and opposed the confirmation of bail? Opposite party No. 2 on the ground that all the twenty-eight cheques given by opposite party No. 2 were dishonoured but in spite of this, the learned Magistrate confirmed the provisional bail of opposite party No. 2 by observing that no case under Section 406, IPC was made out and further observing that on the cheque, there was no signature and account number. According to petitioner, the learned Magistrate was not justified in recording the finding that no case under Section 406; IPC was made out and there was no signature on the cheque because the cheque originally issue by opposite party No. 2 for Rs. 6,20,000/- (Annexure-6) bears the signature of opposite party No. 2 and so far the question of not mentioning the account number on cheque is concerned, that was obligatory on opposite party No. 2. The further case of the petitioner is that in order to give an impression that a draft in the name of Smt. Urmila Prasad was purchased for Rs. 7,01,000, opposite party No. 2 gave a Xerox copy of draft to petitioner but subsequently he got that draft cancelled and received back his money and he did not pay single pie to Smt. Urmila Prasad. The petitioner has prayed for cancellation of bail granted to opposite party No. 2.

(3.) Notice to opposite party No. 2 was issued but inspite of receipt of notice, he did not appear.