SARJEET SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application by the petitioner has been filed for cancellation of bail granted provisionally to opposite party No. 2 in Kazi Mohammadpur P.S. Case No. 73 of 2002 on 16.7.2003 by Chief Judicial Magistrate, Muzaffarpur, which was extended from time to time and was ultimately confirmed on 15.9.2003.

(2.) Brief facts of the case are that petitioner filed a complaint petition numbered as Complaint Case No. 916 of 2002 in the court of CJM, Muzaffarpur against opposite party No. 2 and one Ashok Kumar Chaudhary under sections 420, 467, 468, 470 and 471 read with section 34 of the Indian Penal Code (for short, IPC) and under section 138 of Negotiable Instruments Act (for short, N.I. Act.). The case of the petitioner was that he was Regional Marketing Officer, U.P. Seeds & Tarai Development Corporation Limited, a Government Company engaged in the production and sale of seeds of cereals, pulses and oil seeds of different varieties and co-accused Ashok Kumar Chaudhary was a dealer of the company of the complainant and was carrying on business of seeds at East Champaran since 1994 and opposite party No. 2 was distributor of the company at Muzaffarpur who was having direct business with the company and apart from his other duties he also acted as guarantor of the dealers carrying business in his area and got distributors commission on the total sale in the area. According to the system of the company, before taking delivery of goods the concerned dealer was to pay the price through bank draft or deposit the price of the same in the company's bank and had to show pay-in-slip to the Marketing Officer or Incharge in proof of deposit of money. The further case of petitioner was that co-accused Ashok Kumar Chaudhary in between November, 2001 to 31.3.2002 took delivery of seeds on different dates under different store issue slips and on all the occasions he produced pay-in-slips in proof of deposit of money in favour of company and when bank statement was received by Incharge of Muzaffarpur branch of the company it was detected that a total amount of Rs. 12 Lacs and odd was not deposited in the bank and forged pay-in-slips were produced by co-accused Ashok Kumar Chaudhary showing that the amount had been deposited in the bank. When co-accused Ashok Kumar Chaudhary and opposite party No. 2 were contacted co-accused Ashok Kumar Chaudhary gave four post dated cheques on 22.3.2002 and also executed a bond admitting his guilt and also admitting that he had issued tour cheques for Rs. 12,08,385.00. The further case of petitioner was that opposite party No. 2 also took responsibility for the fraud played by co- accused Ashok Kumar Chaudhary. He also executed a bond and after adjusting his distributor's commission due on the company gave post dated cheques for the remaining amount of Rs. 7 Lacs on 28.2.2002 but cheques issued by co-accused Ashok Kumar Chaudhary as well as by opposite party No. 2 when presented in the bank for payment bounced due to nonavailability of sufficient fund. Registered notices were sent to co-accused Ashok Kumar Chaudhary and opposite party No. 2 informing them about the fact of bouncing the cheques and they were requested to pay the amount but in spite of it, neither Ashok Kumar Chaudhary nor opposite party No. 2 paid any amount to the company. The allegation of petitioner was that co- accused Ashok Kumar Chaudhary and opposite party No. 2 both in connivance with each other committed offences under sections 420, 467, 468, 470, 471 read with section 34 IPC and 138 of N.I.Act. The further case of petitioner is that the complaint filed by him was sent to police for instituting a case and for investigation and accordingly, Kazi Mohammadpur P S Case No. 73/2002 was instituted and police after completing investigation submitted chargesheet against co-accused Ashok Kumar Chaudhary on 31.7.2002 and against opposite party No. 2 on 15.9.2003 under sections 420, 467, 468, 471 IPC and section 138 of N.l. Act (Annexures 2 and 3). Opposite party No. 2 filed application for. anticipatory bail bearing A.B.P. No. 606/2002 before the Sessions Judge, Muzaffarpur which was subsequently withdrawn (Annexure-4). Thereafter opposite party No. 2 surrendered in the court of CJM, Muzaffarpur on 16.7.2003 and he was granted provisional bail till 11.8.2003 and case diary was called for and because case diary was not received till 11.8.2003 the provisional bail was extended to 25.8.2003 and finally on 15.9.2003 provisional bail was confirmed. According to the petitioner, order granting bail to opposite party No. 2 is bad in law for non-consideration and non-appreciation of seriousness of the offence and thereby company of the petitioner has been cheated to the tune of lacs of rupees by the active connivance of opposite party No. 2 and the court below without considering the gravity of offences and materials available in the case diary and by misinterpretation of section 142 of N.I.Act granted bail to opposite party No. 2. The further case of petitioner is that grant of bail to opposite party No. 2 by learned CJM amount to improper and arbitrary exercise of judicial discretion because the learned CJM while granting bail erroneously looked at the materials and came to a conclusion which on the face of it was contrary to materials and it has resulted in apparent error of fact and law giving rise to miscarriage of justice. The petitioner has prayed for cancellation of bail granted by CJM, Muzaffarpur to opposite party No. 2.

(3.) Opposite party No. 2 has appeared and has opposed the prayer of petitioner.