RANJAN MITRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who has been impleaded as sole accused in -Complaint Case No. 347(C) of 2006 prays for quashing of the entire criminal proceeding arising therefrom including orders dated 18.5.2006 passed therein by Sri Manoj Kumar No. 2, Judicial Magistrate, 1st Class, Patna, whereby he has taken cognizance under Section 420 I.P.C. and Section 138 of the Negotiable Instruments Act (here inafter referred to as "the N.I. Act").

(2.) THE complainant, one Ajay Prakash, impleaded herein as O.P. No. 2, filed the aforesaid compliant inter alia alleging that the complainant and the accused were closely acquainted with each other and on 27.11.2005 the accused came to the residence of the complainant and requested for a loan of Rs. 40,000/- with promise to return the amount within two weeks and the complainant in good faith paid the said amount in cash. However, notwithstanding the expiry of two weeks when the accused failed to return the money, the complainant approached him for return of the money whereupon the accused handed over a cheque bearing no. 086579 dated 18.12.2005 drawn on Hong Kong and Shanghai Banking Corporation, Kolkata, for Rs. 10,000/- and promised to pay the balance amount in the near future. It is alleged that when the cheque was presented for encashment the same was dishonoured on the ground of insufficiency of funds. It has also been alleged that although information about the bouncing of the cheque had been given to the accused but he neither gave any satisfactory reply nor returned the money. It has been alleged that the accused had taken the money with intention to cheat the complainant and had made himself liable for offences made under Sections 406 and 420 I.P.C. and also Section 138 N.I. Act.

(3.) IT has been submitted on behalf of the petitioner that as soon as he came to know about the complaint case he filed an application under Section 438 Cr.P.C. before the Sessions Judge, Patna and by order dated 20.1.2007 passed in A.B.P. No. 398 of 2007 the petitioner was directed to surrender in the Trial Court with a Bank Draft of Rs. 10,000/- in favour of the complainant within a month and in that event he was directed to be released on bail on his furnishing bail bond of Rs. 10,000/- with two sureties of the like amount. It has also been submitted that in compliance of the order aforesaid the petitioner surrendered before the Trial Court with a Bank Draft of Rs. 10,000/- and was released on bail on furnishing the bail bond. It has further been submitted that from the averments of the complaint petition no offence either under Section 420 I.P.C. or section 138 N.I. Act have been made out as the ingredients of those offences are completely missing. It has also been submitted that the statutory requirement for an offence punishable under Section 138 N.I. Act had not been complied with in as much as at no point of time was any information about the bouncing of the cheque given to the accused. In this connection it was sought to be pointed out that it was with malicious intention that the complainant had made out a false case of non-payment of Rs. 40,000/-when in fact only a sum of Rs. 10,000/- had been taken as friendly loan. It was further submitted that from factual matrix the entire case appears to be of civil nature as the entire case hinges on the non-refund of money loaned out and for the same a civil suit was the proper remedy.