UDAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole accused of Complaint Case No. 261 of 2007 has prayed for the quashing of order dated 3.10.2007 passed therein by the learned Chief Judicial Magistrate, Rohtas at Sasaram, whereby he has taken cognizance of offences under Sections 406, IPC and 138 of the Negotiable Instruments Act (hereinafter referred to as "the N.I. Act") against the petitioner.

(2.) ACCORDING to the complainant, one Kamlesh Kumar Rai, impleaded as O.P. No. 2 herein, he had come into contact with the accused at Gaya and in course thereof the accused had disclosed that he was a resident of Gaya and was engaged as a land broker of lands in Gaya town, whereupon the complainant is said to have expressed his desire to purchase some land in the heart of Gaya town and as per desire of the accused he had left his full address with complainant and had even taken him to his house and had also shown him a few plots of land which were available for sale. It is said that out of these plots the complainant liked one of the plots shown by the petitioner/accused and he was given to understand that it was available for a consideration of Rs. Lacs per katha and if half the amount was paid by 3.3.2006, then the balance amount could be paid 4 days later at the time of execution of the sale deed. It is alleged that the complainant handed over Rs. 1,50,000/ - to the accused and 4 days thereafter when he came to Gaya and asked the petitioner to get the deed executed and registered by the landlord, he was given to understand that the landlord was not interested in selling the lands. The complainant is said to have claimed return of the money that he had advanced but the accused expressed his inability to return the same immediately as he was not in possession of the amount and promised to return the same after 4 days and kept avoiding paying under one pretext or the other. It is said that finally on 20.8.2006 the accused issued a cheque of Rs. 1,20,000/ - drawn on the Gramin Bank, Gaya, but the same bounced on presentation for want of sufficient funds. Intimation thereof was given to the accused but he refused to pay the said amount. 3. It has been submitted on behalf of the petitioner that the complainant and the petitioners were friends and were engaged as brokers of land and due to some misunderstanding arising between them, they separated in their business and carried on the same separately. It is further submitted that the petitioner had issued a cheque of Rs. 20,000/ - to the complainant on 20.6.2006 but it was the complainant who with the evil intention of cheating the petitioner made some insertions/over writing thereupon and inserted the figure 1 before 20,000/ - and also inserted word "one lac" before the word "twenty thousand" which is apparent from a perusal of the cheque in question. It was also submitted that the cheque on presentation was returned in view of the over writing thereupon. It was further submitted that from the assertions made in the complaint petition no offence either under Section 406, IPC nor under Section 138 N.I. Act can be said to have been made out. Admitting the fact of the complainant having served a legal notice dated 16.12.2006 which was received by him on 21.12.2006 it has been submitted that the petitioner had replied to the same alleging that although he had issued a cheque of Rs. 20,000/ - it was tampered with and manipulations therein were made with ulterior motive for which he was not responsible. Finally it was submitted that mandatory requirement of Section 142(b) of the N.I. Act not having been complied with the prosecution of the petitioner on flimsy and concocted grounds was an abuse of the process of the Court.

(3.) SECTIONS 138 and 141 have been incorporated in the N.I. Act for smooth functioning of business transactions and the compliance of the provisions thereof is a statutory requirement. From the materials available on the records it is apparent that there has been no compliance of the statutory provisions. As such the impugned order taking cognizance being an abuse of the process of the Court is hereby quashed since even the ingredients constituting of an offence under Section 406, IPC are not present. Accordingly the application is allowed and the impugned order taking cognizance is quashed.