KUNDAN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH the petitioners herein are arrayed as accused in Complaint Case No. 1389(C) of 2005 and through this application they have prayed for quashing of the entire criminal proceeding arising therefrom including the order dated 18.6.2005 passed therein by Sushri Saroj Kumari, Judicial Magistrate, 1st Class, Patna, whereby she has taken cognizance under Sections 406 and 409 IPC and Section 138 N.I. Act.

(2.) ONE Santosh Kumar Singh, impleaded herein as O.P. No. 2 filed the aforesaid complaint on 17.5.2005 stating inter alia that he is a sub dealer of Toyota Brands from Bebco Motors Pvt. Ltd. and carries out business in the name and style of 'M/s Jagdamba Auto Sales Pvt. Ltd.' in Patna and that accused Kundan Kumar, a businessman at Muzaffarpur, was a good friend by reason whereof there was close intimacy with his mother also. It is alleged that on 27.9.2004 the said Kundan Kumar came to his office at Patna and requested for help of Rs. 5 lacs immediately as the marriage of his sister had been fixed in the month of November, 2004 with a promise to return the same by December, 2004 as by that time he would have received payments of money that was due to him from others. However, the complainant expressed his inability to provide him with such huge amount immediately. It is said that both the accused again came to his office on 6.10.2004 and requested him to give at least Rs. 3 lacs as they were short of funds and also stayed the night at the residence of the complainant. It is said that the complainant promising to gather funds to the best of his ability and sent back to the accused Muzaffarpur. Then on 8.10.2004 the complainant with one Kamlesh Kumar allegedly went to Muzaffarpur and there along with witness No. 3 went to the residence of the accused and handed over Rs. 1,60,000/ - whereupon he was requested to arrange at least three lacs with an assurance to pay back the entire amount by December, 2004. It is alleged that on 12.10.2004 both the accused persons reached the complainant's office and again requested him to arrange funds with an assurance by accused No. 2 that in the event of accused No. 1 failing to return the loaned amount she would pay the entire amount to the complainant by the end of March, 2005. It is further alleged that on 12.10.2004 the complainant arranged a further sum of Rs. 90,000/ - and handed over the same to the accused persons in presence of witness Nos. 1 and 2 and other staff members. It is said that accused No. 1 handed over a cheque dated 1.1.2005 with an assurance that by December, 2004 the entire amount would be deposited in that account and Rs. 40,000/ - would be paid back by accused No. 2 when her insurance policy would mature in March, 2005.

(3.) THE submissions on behalf of the petitioners is that although the complainant and accused No. 1 were close friends no money at all was ever given to them as loan and there was no specific allegation against the petitioners. It was further submitted that even if the averments made in the complaint petition are accepted then no case is made out against the petitioner No. 2 as she neither received the money allegedly given by way of loan nor she had signed the cheque which had allegedly bounced on two occasions.