NAGENDRA PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure for quashing the order dated 17.8.2004 passed by the Additional Sessions Judge XI, Patna in Cr. Revision No 295/2004 and its consequential order dated 1.12.2004 passed by Sri Manoj Kumar No. II, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 2220 (C) of 2003 whereby cognizance under section 138 of the Negotiable Instruments Act {N.I. Act) and section 420. I.P.C. has been taken against the petitioners.

(2.) Heard.

(3.) The prosecution case in the complaint petition filed by the complainant (O.P. No. 2) in short is that the complainant Institute of Entrepreneurship Development. (I.E.D.), Bihar is a registered society and dealing with the scheme of computer education, studies and its expansion among the young generation. Accused No. 1 M/s. Aryabhatt Computers is a registered society of which accused Nos. 2 and 3 (petitioner Nos. 1 and 2) are the Chairman and the Secretary respectively. They are engaged in computer education and providing computer studies. Accused No. 1 through accused Nos. 2 and 3 approached the complainant for joint certification of computer and information technology based programme for providing computer education and studies and represented themselves with having sound financial and good reputation in this field. On 12.11.2002 the accused persons (petitioners) contracted the executive officials of the complainant and gave an impressive assurance and belief of their experiences, workmanship and skill regarding computer education and requested to appoint their firm as Master Franchisee and gave a categorical assurance of generating income from the joint venture activities. The complainant believed on their assurance and a Memorandum of Undertaking (M.O.U.) was executed on 18.11.2002. According to the M.O.U. the complainant appointed many members of computer and information technology course and after consultation information technology course was prepared and for that the accused persons were to provide necessary support to participate the operation all over India directly or by appointing sub-franchisees by the accused and establish a network for the same. It was agreed between the parties that accused No 1 would pay to the complainant the franchisee fee of Rs. 1 crore within a period of three years from 15.1.2003 and in first year the accused would pay Rs. 20 lacs, in second year 37 lacs and in third year 43 lacs and the annual fee was to be paid by way of 12 post dated cheques. According to the terms of M.O.U. non-interest bearing security money to the complainant was to be refunded on expiry of M.O.U. The security money, however, was to be fulfilled in case of premature exit of accused No. 1. Accused No. 1 was to share the revenue realised from the students by way of fee and other charges with the complainant and such share would be 10% of the fee and other charges. The fee from the students would be collected in terms of demand draft payable to the complainant as month to month basis.