AJAY KUMAR PODDAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who has been arrayed as the sole accused in Complaint Case No. 329 of 2005 has prayed for the quashing of the order dated 9.6.2005 passed therein by Sri Santosh Kumar Pandey. Judicial Magistrate, First Class, Muzaffarpur, whereby he has taken cognizance against the petitioner under Section 406 I.P.C. and Section 138 of the Negotiable Instruments Act (herein after referred to as "the N.I. Act").

(2.) THE complainant, one Md. Sabbir, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 22.2.2005 stating inter alia that he and the petitioner were long acquainted with each other and the petitioner in order to propagate his business frequently took loans from him which he would pay back in full soon thereafter and as a result thereof the complainant had developed unreserved and implicit faith on him. It is alleged that on 15.7.2004 the petitioner requested for a loan of Rs. three lacs on the pretext of an urgent requirement for expanding his business which he assured to repay within two months. As the complainant had full faith on the petitioner he immediately paid willingly a sum of Rs. 1,50,000/ - as loan and the balance Rs. 1.50,000/ - he gave after 15 days and the petitioner in return thereof gave a postdated cheque dated 15.10.2004 for the entire amount drawn on Canara Bank. When the complainant presented the cheque for payment, it was returned with an endorsement "insufficient fund". The complainant then intimated the petitioner through a legal notice dated 26.10.2004 on receipt whereof the petitioner met the complainant and immediately paid him a sum of Rs. 50,000/ - in presence of witnesses and took back the old cheque. It is further alleged that the petitioner again issued a cheque no. 0085650 dated 15.1.2005 drawn on Canara Bank for a sum of Rs. 2,50,000/ - but this cheque too on its presentation was not encashed on the ground that the petitioner had advised the Bank to "stop payment". As the balance amount of the money given as loan had not been returned it has been alleged that the petitioner had committed a breach of trust.

(3.) ASSAILING the impugned order the learned counsel for the petitioner raised an issue of illegality inasmuch as the learned Chief Judicial Magistrate had transferred the complaint case under Section 192 Cr.P.C. without examining the complainant which only perpetrated illegality.