RAJESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application is directed against the order dated 17.10.2005 passed by Sri S.P. Mishra, Judicial Magistrate, Patna in Complaint Case No. 172C(C) of 2005 whereby he has found a prima facie case against the petitioner under sections 420 and 406 of I.P.C. as also sec. 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act).

(2.) THE alleged complaint petition filed by one Amit Kumar alleging commission of offence under sections 420, 406 and 323 of I.P.C. and 138 of N.I. Act seeks to implead (1) Gautam Govind @ Rinkoo (2) Pinkoo and (3) Rajesh Gupta as accused. According to the prosecution story the complainant, Amit Kumar, an unemployed youth, was in search of livelihood and in the month of May, 2004 accused no.1 and 3 approached the complainant at his house posing themselves as Distributor and C & F Agent of Misrotek Products and Okaya Company and lured the complainant for payment of Rs. 1,40,000/ - for dealership of the aforesaid firms at Rajgir. It is said that accused no.3 assured the complainant that after payment of the money he will manage to get him appointed as delaer of the aforesaid Company at Rajgir and requested for payment to be made at the earliest to accused no.1 preferably by 5.7.2004. However, the complainant paid a sum of Rs. 60000/ - by draft payable to M/s Peripheral Engineers, PVT. Ltd. the Company of accused no.3 and handed over the same to accused No.1 and 3 in presence of witnesses at the office of accused no.3 and the same was duly encashed. Thereafter the accused persons gave assurances to the complainant of his dealership being allotted very soon after the rest amount was paid and paper work in that behalf was being done. It is said that accused no.1 and 2 visited the house of the complainant several times for the balance amount of Rs. 80,000/ - and the complainant after taking loan handed over the same to accused no. 1 and 2. It is said that accused no.2 received the amount of Rs. 18,000/ - on 28.7.04 and Rs. 62,000/ - was received by accused no.1 in cash. It is alleged that after payment of the entire money accused persons started avoiding the complainant and taking time on some false pretext. Seeing the prolonged delay in the matter the complainant got apprehensive and requested the accused persons to either return his money or get him appointed as dealer at Rajgir. It is stated that the accused no.3 flatly refused to return the money of the complainant and threatened him with dire consequences whereas accused no.1 issued a cheque dated 3.11.2004 for Rs. 30,000/ - in favour of the complainant but the same was dishonoured on 11.12.02. (sic?) It is stated that the complainant contacted accused no.1 and later requested him not to take any legal action and assured that the cheque would be encashed. Accordingly,, the cheque was again presented and was again dishonoured on 26.4.2005 for which a legal notice was sent to accused no.1 on 7,5.2005 by registered post. It is said that on receipt of the notice accused no.1 and 2 came to the house of the complainant and threatened him and his family members. It is further submitted that on 13.6.2005 the complainant again went to the office of accused no.3 where the accused no.1 and 2 were also present and when he demanded money he was assaulted. It has been submitted on behalf of the petitioner that he is innocent and the complainant and two witnesses in their solemen affirmation on 5.7.1995 before the Judicial Magistrate have not levelled any allegation against the petitioner and all the allegations are levelled against Gautam Govind and Pinku. !t was further submitted that it would be apparent from the complaint petition that all the transaction was made in between the complainant on the one hand and Gautam Govind and his brother on the other hand. The learned counsel further sought to submit that the parentage of the petitioner had not been mentioned in the complaint petition and the legal notice had been sent to Gautam Govind who had issued the cheque which had been dishonoured on two occasions. It was further sought to be submitted that Gautam Govind is the Proprietor of M/s Jai Mata Di Enterprises who are dealers of Microtek Company at Maner and Gautam Govind used to take products of Microtek and Okaya Companies and on 5.7.2004 Gautam Govind had deposited a Bank draft of Rs. 60,000/ - in his credit account of petitioner 'scompany and, accordingly, that was adjusted in his credit. It was further submitted that after final settlement Rs. 61,141/ - became due against Jail Mata Di Enterprises on 10.6.05 for which Gautam Govind issued a post dated cheque in favour of the petitioner 'sCompany which was in presence of the complainant who happened to be a relative/friend of Gautam Govind and they used to visit the petitioner 'scompany frequently but the said cheque was dishonoured for which Complaint Case No. 603(C) of 2006. was filed and cognizance under Sections 420 and 406 of I.P.C. and sec. 138 of N.l.Act was taken against Gautam Govind vide order dated 20.3.2006.

(3.) FROM what has been submitted on behalf of the petitioner this happens to be a case of disputed question of fact which cannot be looked into at this stage in exercise of powers under sec. 482 Cr.P.C.