SAKALDIP YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have invoked the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 13.04.2011 passed in Complaint Case No.3465 of 2010, whereby the court of the Judicial Magistrate, First Class, Katihar, summoned the accused-petitioners, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 406 and 420 of the Indian Penal Code and Section 138 of the N.I. Act.

(2.) In brief, the case is that the complainant-opposite party no.2 filed Complaint Case No.3465 of 2010 with the contention that he is a partner of the firm "Katihar Tractors" situated at Mirchaibari, Katihar. He used to sell the tractors to its intending buyers mostly on financing through the Mahindra and Mahindra Financial Services Limited, a non banking financial institution. The accused-petitioners took a tractor model 295 DLX Power steering, bearing Serial No.NPTD 383 to "Katihar Tractors" after availing finance from Mahindra and Mahindra Financial Services Limited, Purnea, who financed the loan of Rs.3,50,000/- against the price of the tractor as Rs.5,09,700/- with other expanses as Rs.37,739/-, Total Rs.5,47,439/- of which Rs.1,97,439/- was the margin money, which the accused-petitioners was required to pay. While taking the delivery of the tractor, the accused-petitioners further took Rotavater worth Rs.95000/-. As such, the total sum of Rs.2,99,815/- was to be paid by the accusedpetitioners to the "Katihar Tractors" at the time of taking delivery. Against the said amount, the accused-petitioners paid only Rs.1,52,000/- and for the remaining amount of Rs.1,47,815/-, a post dated cheque no.573409 drawn on United Bank of India at its Kheria Branch was handed over to the dealer-complainant-opposite party no.2 with an assurance that the cheque will be honoured if presented to the Bank and the dealer can collect the due sum from the account of the accused-petitioner no.2 Sadanand Yadav, father of the accused-petitioner no.1 Sakaldip Yadav alias Sakaldip Kumar Yadav. The accused-petitioner no.1 Sakaldip Yadav alias Sakaldip Kumar Yadav also furnished a written commitment that the due amount will be paid to the dealer much before the date written over the cheque, i.e., 07.10.2010, failing which the dealer can produce the cheque for collection and further legal action, if necessary. As per the commitment of the accused-petitioners, the cheque was deposited by the complainant in the account of the firm "Katihar Tractors" at the State Bank of India (DRM), Katihar, for collection from the concerned Bank but the cheque was returned dishonoured by the drawee Branch with the remarks "Funds Insufficient". The complainant-opposite party no.2, on receipt of the return of the cheque, sent a legal notice on 26.10.2010 through the Advocate to the accused-petitioners, which was acknowledged by the accussedpetitioners on 29.10.2010. In spite of the acknowledgment of the dishonoured of the check through the notice, the accused-petitioners did not bother for payment of dues. As such, the accused-petitioners committed the offence under Sections 406, 420 of the Indian Penal Code and Section 138 of the N.I. Act.

(3.) After filing of the aforesaid complaint case by the complainant-opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the accused-petitioners were summoned through the impugned order by the court of the Judicial Magistrate, First Class, Katihar, finding prima facie case under Sections 406 and 420 of the Indian Penal Code and Section 138 of the N.I. Act.