RAJ KUMAR DAS SON OF LATE BASUDEV DAS Vs. STATE OF BIHAR AND SHYAM SUNDAR SHARMA SON OF LATE SAHDEV SHARMA

JUDGEMENT

(1.) THE petitioner who has been arrayed as the sole accused in Complaint Case No. 1127 of 2001 has prayed for the quashing of the order dated 6.3.2003 passed therein by Sri Dhananjay Kumar, Judicial Magistrate, 1st Class, Hajipur, whereby he has taken cognizance under Section 406 IPC as also Section 138 of the Negotiable Instrument Act (hereinafter referred to as "N.I. Act") against the petitioner. The prosecution case is based on the complaint petition filed on 5.7.2001 by one Shyam Sundar Sharma, impleaded herein as O.P. No. 2, alleging the commission of offences under Sections 420 and 406 IPC as also Section 138 N.I. Act at the hands of the petitioner on 24.9.2000, 22.3.2001 and 23.6.2001. According to the complainant he had developed good relationship with the accused and by reason thereof they were on visiting terms.

(2.) THE complainant alleged that the accused was employed in carrying on business in trucks and requested for a loan of Rs. 50,000/ - which the complainant, due to the good relationship, gave to the accused on 24.9.2000 on the assurance by the accused that the same would be returned within three months. It is further alleged that when the money was not returned within the stipulated time the complainant made several visits to the accused for the return of the money which were conveniently avoided on one pretext or the other and when on 22.3.2001 the complainant in front of some affluent persons made a request for return of the money the accused on the request of the affluent persons issued cheque No. 0006828 for Rs. 50,000/ - drawn on his Savings Bank account No. 487 with the Union Bank of India in the name of the complainant. It is further alleged that of the same day the said cheque was presented for encashment but the same was dishonoured due to insufficient funds in the account of the account holder and a memorandum in that respect was issued by the bank. It is said that on 24.3.2001 the complainant sent a legal notice to the accused through his lawyer and requested for payment within 15 days failing which he would have to face a criminal proceeding to which the accused replied on 16.4.2001 through his lawyer which was received by the complainant on 23.6.2001 through an unknown courier. It is further stated that from the reply sent by the accused the complainant became sanguine that his money would never be returned and the same had been misappropriated by the accused. Accordingly the instant complaint case was filed.

(3.) ASSAILING the impugned order it has been submitted on behalf of the petitioner that he is innocent and the complainant had not produced any document to show that the petitioner had borrowed money from him. In this connection it was submitted that the petitioner 'scheque book containing some signed leaves was lost and intimation thereof was sent to the concerned bank on 15.12.2000 with a request for cancellation of the said cheque book and to take necessary action and the complainant some how having managed to get one of the lost leaves of the cheque book containing the signature of the accused filled the amount of Rs. 50,000/ - himself and tried to withdraw the money and after the cheque had been dishonoured and a memorandum was issued by the Branch Manager of the Bank the complainant to save himself filed the false case against the petitioner. While admitting the receipt of the legal notice from the complainant the learned Counsel for the petitioner drew my attention to annexure 4 appended with the application which is the reply sent to the legal notice wherein he denied the accusations made in the legal notice sent by the complainant including the fact of having received a loan of Rs. 50,000/ - and he having no liability to pay the same. The fact of the accused having issued cheque No. 0006828 for Rs. 50,000/ - has also been denied and the story of the cheque book with a few leaves thereof containing the signature of the accused having been lost and he having misused one of the signed leaves has also been denied. The further submission on behalf of the petitioner is that the cognizance under Section 138 N.I. Act was time barred in view of Section 142(b) N.I. Act as the complainant was not filed within one month of the date on which the cause of action arose i.e. 9.4.2001.